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Friday, December 14, 2012

Address to Medical Profession 16 November 2012-11-15 Annual General Meeting of Islamic Medical Association-Pretoria Branch

Address to Medical Profession 16 November 2012-11-15
Annual General Meeting of Islamic Medical Association-Pretoria Branch
Bay Leaf Restaurant: Laudium 19:00



Wa ma khalqtul jinna wal insa illa liya’budun

Al Rahimuna yarhamahum al rahman Ir hamu ma fil ardi yarhamukum man fis sama

I am honoured by this kind invitation to address this gathering here this evening. This is an important meeting of your association where you wlcome new colleagues that have joined your fraternity and also acknowledge others who have for their services. I hope that what we will share here tonight may be of relevance to both these guests and all of us here this evening.

By the mercy of Allah Ta’ala you have all been blessed with medical knowledge  which is part of the knowledge of Allah:
Wa allama al insane ma lam ya’lam
Who taught man what he knew not

The study of medicine is an opportunity to recognise Allah Ta’al. Allah encourages believers in several verses of the Quran to tadabbur and tafakkur-pondering and deep thinking about the creation and His ayaat (signs) in the universe. If we are to assume as Allah informs us, that the noblest of all of Allah’s creation is man- and the study of medicine is the study of man, then surely the study of medicine should rank as one of the noblest of professions. It entails revealing Allah’s signs in his most honoured creation-wa fi anfusikum a fa la tubsirun.

The medical practioner should therefore of necessity come nearer to Allah by means of his profession. Recognition of the greatness of Allah Talaa should strengthen his faith, bring him to do good deeds and allow im to develop a relationship with Allah.

He witnesses the birth, growth, sickness, old age and death of those who trust in his knowledge. The miracle in which Allah Ta’ala creates human beings, the way in which Allah Ta’ala causes man to be healed after sickens and the way in which death follows old age and sickness are all signs-ayaat Allah Ta’ala calls it in the Quran e Karim-which should take him closer to Allah and make him realise the purpose in life.
Our purpose in life is encapsulated in the verse:
Wa ma khlaqtul jina wal insa illa li ya’budun

And we have not created Jinn and Insan except for our worship-ibadah.
Ulama of tafsir have interpreted the meaning of ibadah and explained that ibadah entails two duties:
Itaa’a li awamir allah
Al shafqatu li khaliqillah

Obedience to the commands of Allah
And mercy/ compassion  to the creation of Allah

If we consider the profession of medicine then it is a sure way to bring compassion and mercy to Allah’s subjects. Medical practice is therefore an act of worship and charity apart from being a career to earn a living. And just as Allah’s mercy does not iscriminate-terighteous and evil, the friend and foe all enjoy the warmth of the rays of Allah Ta’ala’s sun, the comfort of His breeze, the coolness of His water and the life giving air He gives us to breath. It it therefore on this basis that the health care provider must operate.
As an agent of mercy to those he treats, the medical professional should realise the importance function he serves. Rasulullah sallallahu alaihi wasallam said:
Ar rahimuna yarhamuhum ar rahimun-Rahman-The Most Merciful shows mercy to those who show mercy. I remember well the words of my late teacher Professor Abur Rahman Doi rahimahullah. He once said to me that doctors and those in the medical profession have the great opportunity to become the friends of Allah. They show mercy to patients and relieve the pain and suffering of oter when those who they treat are most vulnerable and most in need of their services and kindness.

Dear Brothers and sisters, the fuqahah have acknowledged, the importance of your profession. They explain that the study of medicine is a fard ala al kifayah-a collective obligatory duty on society that some of its members can carry out in lieu of whole. Should there be insufficient professionals in this field the entire community carries the legal blame. In an Islamic state therefore it is the duty of the state to ensure that there are sufficiently trained doctors- the ensuing duty being to establish relevant schools, faculties, clinics, hospitals and institutions to fulfil their purpose. The fuqaha (Muslim jurists) recognised and identified this very early on in their works of jurisprudence. The famous scholar Imam Shafi rahmatullah alaihi said: After the science which distinguishes what is halaal and haraam, I know of know of no science which is more noble than that of medicine.” He was grieved to see how much of tiscience was lost to Muslims. He often used to say: “ They have lost a third of all human knowledge and have allowed themselves to be overtaken by the Jews and Christians. He is also reported to have said: “Truly the People of the Book have oversdowed and overtaken us in this supreme art.” And al-Shafi, as well as having immense superiority in the sciences of shariah and an unassailable command of the Arabic language was also a skilled physician.

His words should serve as encouragement for Muslim to be at the cutting edge of medical advances. This is in fact our legacy and Muslims of the past took heed to te advices of the fuqahah. You are all well aware of  the contributions of Muslims to medicine. Between 872-874 of the common era, Muslims established the Ahmad ibn Tulun hospital in Cairo. It treated patients free of charge and provided the best medical treatment know to man at the time. These facilities were custome designed and the surgical instruments were outstanding. Forceps, still used today, were designed by Muslim surgeons over a thousand years ago. Cutting edge operations such as cataract operations (you would remember that al-Mawsilli had invented the technique of suction removal of cataracts by the use of a hollow needle, internal stitching and bone setting were part of standard practice. Rigorous medical education in a teaching hospital such as the al-Nuri hospital in Damascus or the al-Mansuri hospital in Egypt was the order of the day. By the way, The Mansuri hospital was built on the land donated by the famous doctor Ibn Nafis. Ibn Nafis had described the pulmonary blood circulation system-the system of oxygenation of oxygen poor blood by the lungs, well before the 17th century scholar William Harvey had done so.    

As Muslims we need to recommit ourselves to achieving excellence in our professions. The physician should strive to keep abreast with scientific progress and inovaton. Is zeal or complacency, knowledge or ignorance all have a direct bearing on the health and well being of his patients. Just as in Islam, the poor have a right in the wealth of the rich, so too do the patients share in the doctors time spent in study and following the progress of medicine.

Umm al-Mu’minin Sayyidina Aisha Radiallahu anha is a sterling example in this regard. She continuously improved and grew the information and knowledge she had about medicine. Hisham ibn Urwah radiallahu anhu  says: “ I never saw anyone who knew more about medicine than Aishah radiallahu anha. I once said to her Oh my aunty, where did you learn your medicine? She replied: “I used to listen topeople when they prescribed remedies for each other , and I stored up what they said in my memory.”

Dear Brothers and Sisters; the well know principle is that the more nobe and respectable a man’s work is, the greater his responsibility becomes and consequently the more exacting are the criteria to assess his acts. So what are the Islamic values that a Muslim medical professional should be cognisant of. We have spoken of the need for tafakkur and tadabbur-pondering over the creation of Allah, as means to his ma’rifah and recognition- we have also said something about the need for mercy and that all we due needs to be coloured with mercy. We have also touched on the need of rising to the challenge of excelling in our fields and the importance of continuous learning. Apart from these there are other teachings of Islam that have a bearing on our professions. Within the ambit of Iman is the belief in qadar-predestination. Qadar guides the health care practioner in his work to know that life and health, illness and cure are ultimately in the hands of Allah Ta’ala. The physician has limited knowledge and limited ability and therefore should never be arrogant. After during everything humanly possible for his patients the Muslim doctor trusts in Allah Ta’ala’s help and support. A believing physician will know that he cannot change the time of death-the ajal-of a person. Sint that is under Allah Ta’alas direct control.

He will concentrate on improving the quality of the remaining life of his patients. Medical knowledge and the real and practical experiences he has with patients increase his Iman because he realises the power and majest of Allah Ta’ala who has created complex human organisms and who cures the most severe diseases.

Another demand on a Muslim doctor is that of taqwah.He is conscious that Allah Ta’ala is watching and ever present. He will strive to uphold what is permitted and avoid the haram. Medical procedures that result in the destruction of human life such as abortion, euthanasia, and assisted suicide have no part of his practice. He will keep away from fraud, false evidence, lying and misrepresentation. He will not dispense forbidden, haram, medication. It is therefore sad to get reports of the increasing number of doctors who abuse medication for personal use. It is unthinkable that Muslim medical professionals would so blatantly flaunt the commands of Allah Ta’ala. Apart from the sin and punishment that goes with the disobedience of Allah, Imam Suyuti provides us with another reason why the medical practitioner should always be exemplary in his conduct. He states that the physician should offer a good example by caring for his own health. It is not befitting that his “do’s” and “don’t’s” are not observed primarily by himself.

Linked to this is the requirement that Muslim health care practitioners broaden the scope of their knowledge. Al-Ruhawi in his Adab al-tabib (The Morals of Physician or The Practical Ethics of the Physician) is very explicit with regard to the amount of religious knowledge that a Muslim physician should have. Al-Ruhawi’s book is really an amazing contribution that we need to study carefully. His Adab al-Tabib is divided into twenty chapters, each dealing with a specific topic of medical ethics. They fall into three general categories: the conduct of the physician, the conduct of the patient, and the conduct of the public at large towards the medical profession and their patients. The text covers a physician's personal beliefs and practices, placing great importance on his faith in God and personal health and hygiene, as well as his manner with his colleagues, nurses, and patients. Al-Ruhawi emphasizes respect for the physician in patients and visitors, even allowing for a doctor to overrule a patient's wishes when it is necessary for their health to do so. He says that doctors should be placed high in the social hierarchy, with enough pay that they aren't forced into other work, although he also instructs doctors not to flaunt their wealth. Al-Ruhawi says that the fees charged for rich patients should be enough to cover the expenses of poor patients who cannot pay for themselves, as otherwise medical care for both the rich and the poor suffer.
In Adab al-Tabib, Al-Ruhawi also discusses legislative practices and penalties for false and incompetent doctors. To weed out quacks, he advocates medical exams and licenses, the contents of which would be heavily based on the works of Galen. He encourages doctors to keep records of the patient's symptoms, treatments, and progress, so that it may be reviewed by peers should the patient die under his care. Although he admits that patient survival is not always possible and is ultimately up to Allah Ta’ala, Al-Ruhawi recommends severe penalties for doctors who allow patients to die through negligence, even up to execution. This is, one of the oldest books written about Islamic medical ethics , Adab al-ṭabīb (Conduct of a Physician) by Isḥāq ibn `Alī al-Ruhāwī in the 9th century AH/ CE.1415.  The author stated that the true physician is the one who fears God. The point we are making here is that it is necessary for the physician to have that amount of knowledge of Islamic law, the ibadat (worship) and the essentials that enable him to give counsel to patients seeking guidance about those aspects of health that have a bearing on worship and religious observances. Men and women are subject to symptoms, ailments and physiological situations like pregnancy and would like to know the religious ruling pertaining to tahaarah, salaah, fasting, haj etc. We should all therefore have sufficient knowledge
to provide the necessary guidance to our patients.

Another demand of faith that has a direct bearing on the attitude we have in all we do is our ikhlas. Ikhlas plays a pivotal role in all we do. It is no different for the health care professional. Sincerity-and a sincere intention, increases commitment. Medical practice is ibadat if done for the pleasure of Allah Ta’ala. The rewards of actions are dependent on the extent of the sincerity. The motivation of the medical practitioner should therefore be service and not personal gain. His sincerity should bring him to the realisation that he is accountable before Allah Ta’ala-and also that he is accountable to his profession and to society at large. He has a responsibility to provide his services to the community. As such he would be required to take up social leadership and advocacy for the less privileged or oppressed. This would tie in with the responsibility he has for da’wah. He has to use the opportunity he has to give da’wah to his patients and their relatives. 

We pray to Allah that he guides the graduates we honour here this evening. WE pray that the doctors who are been recognised for their long service are blessed and that they continue to serve for His Pleasure.
We also pray for guidance in all we do, for motivation to be the best, for a focus for the aakhirah and for a meeting with our Rabb when we are happy with Him and He with us.
I thank you


Wednesday, December 12, 2012

The Use of Itr (Essential Oils) by Ashraf Dockrat

The Use of Attar (essential oils)

In a hadīth we read that the Prophet SAW is reported to have said: “From the things of your world, women (wives) and perfume are beloved to me and the comfort of my eye is the Salāh”. The pious say that “A pleasant Attar perfume The use of Itr/Attar is an established sunnah practice of the Prophet Muḥammad SAW strengthens the intelligence and increases virility”. When Sayyidinā ʿAlī radiallahu ʿanhu offered fragrance to anyone and if he refused it, he would say: “Nobody but a donkey refuses the favour (of Allah).

Ṭibb incorporates the use of fragrant oils to treat imbalances. The natural oils extracted from flowers, bark, stems, leaves, roots or other parts of a plant are used. The inhaled aroma from these "essential" oils is widely believed to stimulate brain function. Essential oils can also be absorbed through the skin, where they travel through the bloodstream and can promote whole-body healing. Today aromatherapy is gaining momentum. It is used for a variety of applications, including pain relief, mood enhancement and increased cognitive function. There are several approaches to utilizing aromatic oils for therapy. The purpose of the application in Ṭibb in not to use the essential oil for its medicinal action per se, but rather as an effective method to quickly adjust the subtle essences of the humors.

There are a wide number of essential oils available, each with its own healing properties. The oils most commonly used are rose, violet, jasmine, frankincense, myrrh and chamomile. The oil may be used for massage in pure form or mixed with sweet almond or olive oil as an extender. For emotional and mental applications, apply one or two drops of the oil to a small piece of cotton about the size of the thumbnail. Roll the cotton into a small ball and insert into the ridge (not the ear canal) of the right ear. The cotton may be placed in place for one to three hours.

Attars or essential oils may also be burned on self igniting charcoal. A few drops ignited on the charcoal will scent a small room with fragrance for about twenty minutes.

The oils have qualities associated with them. Listed below are some of the common aromatherapy oils with their respective qualities.


Chamomile (Dry & Hot)

Lavender (Dry & Hot )

Lemon grass (Dry & Hot )

Eucalyptus (Hot & Dry)



Ylang-ylang (Cold & Moist)

Grapefruit (Cold & Dry)

Bergamot (Cold & Dry)

Rose (Cold & Dry)



Eucalyptus (Hot & Dry)

Rosemary (Hot & Dry)

Anise (Hot & Dry)

Cinnamon (Dry & Hot)



Eucalyptus (Hot & Dry)

Rosemary (Hot & Dry)

Anise (Hot & Dry)

Cajuput (Hot & Dry)



Rosemary (Hot & Dry)

Cinnamon (Dry & Hot)

Chamomile (Dry & Hot)

Lavender (Dry & Hot)



Clarysage (Hot & Moist)

Peppermint (Hot & Moist)

Chamomile (Dry & Hot)

Lavender (Dry & Hot)



Ylang-ylang (Cold & Moist)

Jasmine (Cold & Moist)

Fennel seeds(Cold & Moist)

Coriander oil (Cold & Moist)



Ylang-ylang (Cold & Moist)

Jasmine (Cold & Moist)

Fennel seeds (Cold & Moist)

Rose (Cold & Dry)



There is a difference between commercial perfumes and ittar. Alcohol is a common solvent for most perfumes and causes the perfume to evaporate much faster- sometimes upto as much as 10 - 15 times faster. This causes the first impression of the perfume to be overwhelming to human senses, but it soon evaporates and loses power. Given its natural derivation, ittar lasts a long time. Body heat only intensifies its smell. Another major difference between synthetic perfumes and ittar is that the oil-based ittar is worn directly on your body. The inside of the wrist, behind the ears, the inside of elbow joints, back of the neck and a few other parts of your anatomy are directly dabbed with ittar.

A small drop is enough to be used as a fragrance on the body. A few drops can be added to water and used with aromatic vapour lamps. A few drops of some ittars are used with cold drinks, such as milk, to give fragrance.

Numerous varieties of attar are available for use through the year. One should use attar appropriate to the season and in accordance with ones temperament. This is a very important consideration and people are generally unmindful of this when using attars. Remember that your attar not only affects you but also those around you. You should therefore consider carefully and chose the appropriate attar to wear.

Ittars can be classified as “warm” or “cool”.

Warm Ittars' – Ittars such as Musk, Amber, Kesar (Saffron), Oud, Hina are used in winters, they increase the body temperature.

Cool Ittars' – like Rose, Jasmine, Khus, Kewda, Mogra, are used in summers and are cooling for the body.

Chameli can be used at any time of the year.

We will now mention some details regarding some of the more common itr.


Oil of amber (kahrabah in Persian) or liquid amber, as it is sometimes called, is derived from a species of pine tree (Picea succinfera). Many people have had contact with amber stones and beads, and it is this same basic substance that is used in healing. But the stones have hardened for several million more years than the resin, which is used to manufacture the oil.

There are only three locales in the world where authentic amber can be found. Its colour varies anywhere from a light, translucent pink to a heavy, dark brown. When we realise that the essential sap of these trees, to become amber, has been preserved for one to six million years, we understand that we are tapping into a very ancient healing energy.

Some people use the sap from trees and distill out the essence. But others, realizing this ancient energy within, prefer to grind down the stones into powder and then heat it to revive the essence. This latter form of amber is better for healing but very very difficult to locate.

Amber is recommended specifically for any kind of disease or problem associated with the heart. While the rose is considered the Mother of Scents, amber is called the Father (or King) of Scents.

An excellent method of using Amber is to put one drop on the tip of the finger and apply it to the point of the “Third Eye” (not in the physical eyes, of course). This is absorbed by the body and stimulates the pineal gland, which activates many of our physiological functions.


Frankincense is hot in the second degree, but is not quite so hot as amber. It is a little less drying, too. Frankincense is also a very powerful cleanser of the aura and psychic planes


Myrrh is hot and drying. There are several varieties but those from Tunis and Morocco seems to be of the finest quality.


Violet is cold and moist in the first degree and can thus be considered mild in its action. Violet leaves, flowers and oils are used in a great number of healing formulas.


Sandal is cold and dry in the second degree. The best and most famous oil of sandal comes from Mysore, India. It is used in many conditions, frequently for genital and urinarly tract infections. Sandal is also used as a base oil into which other oils are extracted or blended. It is a very good base because it evaporates very slowly and does not spoil over time. In fact aged sandalwood is better than fresh.

Sandalwood is recommended whenever serious meditation and spiritual practices are being undertaken, because it is quieting to all of the egotisms of the body, especially those relating to sexual urges.


True musk oil is derived from the glands of a kind of deer, found only in remote regions of the world. Musk is hot and dry. Musk has been used in medicine particularly in healing heart and sexual problems.


Rose is cold and dry in the second degree. There are perhaps three hundred different species of roses used in aromatherapy. The finest and most expensive is said to be the Bulgarian rose. Others consider the first pressing rose oils from India to be superior to the Bulgarian rose. It requires 60 000 pounds of rose petals to produce one kilogram of first pressing rose oil.

The rose is the most superior of all scents in the floral realm. Rose works simultaneously on the physical, emotional, and spiritual bodies, purifying and uplifting all three. It is the least toxic oil. One can make a delicious summer drink by adding rose oil to water.


Jasmine is cold and dry. The flowers of jasmine are cold but the essential oil is heating. This is an important consideration: that not all substances work in the same way in all forms, just as water and ice are chemically the same but quite different in their effects. It is also true that flowers and their oils do not work in the same way in humans as they do in animals: what is heating to a human may be cooling to a fish. This fact makes random experiments on animals a questionable practice at best. The special quality of jasmine is its unparalleled ability to uplift the mood and lessen mental depression.


Hina (pronounced heena) is the oil extracted from the flowers of the henna plant. Hina is very difficult to find and is considered one of the finest and most refined oils in the world; and its price reflects that too. It is usually aged over a long period of time and it improves with aging. The curious thing about hina (and of some other oils as well) is that the liking for its fragrance is an acquired one: many people on first smelling find it repulsive.


The rare and costly oil known as ʿūd is taken from the wood of the aloeswood tree. The best ʿūd comes from India. Its cost can be high but those familiar with its effects do not find the price a consideration. ʿŪd is hot and dry in the third degree. Oudh oil is used in traditional medicine for a number of purposes, including to help in childbirth. Breathing the smoke from the burning wood will help with respiratory problems, colds, coughs and asthma. The oil has been used to help sufferers of rheumatism, as a stimulant and a tonic combined with other ingredients. It helps lift the spirit and boosts energy levels.

It is necessary to mention here that women going out from their homes should not use attar in a way that its fragrance attracts the attention of others. Attar may be used by them in the confines of their homes. The instructions of the sharīʿah in this regard are clear. “Rasulullah(S) says: “Any woman, who perfumes herself and leaves the house, is deprived from the blessings of the Allāh until she returns home.”

Tuesday, December 11, 2012

Book Review: Al-Asil The Pure Bred Arabian by Ashraf Dockrat

Title: Al-Asil: The Pure Bred Arabian A unique blend of Islamic and Modern research on the Arabian Horse

Some two years ago the Saudi Aramco World magazine printed a calendar which featured the most beautiful photos of Arabian horses I have ever seen. This and the accompanying articles on the Arabian horse are exceptional and are sure to interest readers. One can go to their website for this. When I first came across the book we review this morning, a similar type of excitement filled my mind.

Al-Asil: The Pure Bred Arabian Horse

This book has an intriguing title and is certainly not your run of the mill topic in Islamic books.

The word "Aseel'" Is an Arabic name and adjective that means: original, Authentic, Genuine, Pure, Origin, Root, Unique.

The word "asil" is Arabic in origin and means "pure", noble, or of long pedigree (as in purebred). It is used in several different contexts:

Asil (chicken), a breed of chicken. Some of us wear asil kurtas even.

Asil Nadir, Turkish Cypriot businessman

Arabian horses who have pedigrees that can be traced in every line to identifiable desert-bred horses from the Middle East. The term "Asil Arabian" is commonly used in Europe. Horses of similar bloodlines are sometimes referred to as Al Khamsa in the United States.


Asil or Aseel also refers to a person of Arabian descent who has a long ancestral chart. Normally Arabs in the Gulf States use it to make a distinction between themselves and other Arabs or other Muslims who just settled recently in their countries, or don't belong to one of the old and often noble families; like the al-Chalifa, al-Maktoum or the House of Saud.

This book, through an investigation of the many Prophetic Traditions on the topic of horses, the author passionately describes the close relationship between the Prophet of Allah and horses. This book synthesises scholarly work on the subject of the Arabian horses, both by Muslim and scholars over the centuries and contemporary researchers in the humanities and sciences. He enriches their wealth of information with first hand accounts of his travels to Arabian studs around the world-whether in the royal stables of the Gulf or deep in the Syrian desert with Bedouin tribesmen-making this book a must have reference for people passionate about horses. In this work the author

presents the basics of the historical background of the modern Arabian horse.

Al-Asil – The Pure-bred Arabian, is a treat for all horse enthusiasts and a highly enlightening read for the rest of us. The author has not only delved into the sea of hadith and retrieved a large number of them pertaining to horses, but has also managed to revive numerous works on the subject by traditional Islamic scholars in the early centuries of Islam. He has, in a completely unique manner, managed to synthesize these disregarded contributions with contemporary research on the Arabian horse. By recollecting his personal travels to various Arabian studs around the world, he flavours the theory with real life accounts of meetings with royalties as well as the masters of equitation – the desert Bedouin!

There are two exceptional features of the book:

In the first chapter, many of the excerpts from classical scholars in the first 3 centuries, were translated into English for the first time. Their contributions in this field have therefore been overlooked by contemporary scholars.

The relationship of Rasullulah SAW with horses and the contribution of Islam to the spread of the Arabian horse around the world is also overlooked by Western scholars and was highlighted in the book.

The book was very informative, I enjoyed reading it, and especially studying the pictures and pedigrees of past generations of Arabians.

Perhaps it is because I once owned a horse and rode myself from a young age that I could so closely relate to this book and that I enjoyed reading it so much! Although I suspect that even if I didn't...the enjoyment would still be there! The book contains many historical facts, is written in a wonderful, easy-to-read style, and is interesting. This book comes very close to the ultimate book of Arabian history. Great book! I loved every moment.

Every page of this book exudes the author's passion for the subject of Arabian horses.

He has put the book together in a very logical way and after a forward and introduction, he mentions that his aim of writing this book is to revive the sunnah of riding and love for horses. Our youth have regressed physically and sunnah entertainments need to be revived, archery, swimming and horse riding are amongst these. This is a noble aim and I hope and pray that this book does something to help our youth. I will never forget the child who asked me on Eid day at the camel rides we offered “Uncle, where do the batteries go in?”

Chapter I

Horses in Islam, Horses mentioned in the Quran and ahaadith, Muhammad sallallahu alaihi wasallam and horses. The names of sallallhu alaihi waslaams horses. Eight horses altogether are mentioned: Sakb, Lizaar, Luhaif, Ya’sub, Murtajiz, Sabhah, Ward and Dharib. The names of horses depending on the colour combinations of their socks. Some works of Muslim scholars over the 1400 years on the subject of horses.

Chapter two is devoted to the characteristics of the classic Arabian horse. Always drawing on original classical Arabic works, the author is able to quote what the classical writers such as al-Asmai have said about the features of the Arabian horse. Line sketches provide the reader with the necessary graphics, classic Arabian head-concave below eyes, small, alert ears, large extended nostrils and deep wide jowls. A prominent arched neck curved like a palm branch with a throatlatch following the same curve. The tail carriage should be elevated when excited or in action. Distinctive features of the head body and movement are described before moving onto a discussion on the inner qualities of temperament, stamina and adaptability and then concluding this section with a discussion on the strains and bloodlines. One of the most important topics concerning the Arabians.

Chapter Three is titled: The desert, the Bedouin and their horses and here the author has an anthropological approach. He explores some myths, the deserts of Arabia, the Bedouin people and the laws of the desert, the Bedouin and his horse and mentions that they are really one. He would stay hungry to feed his horse and sacrifice the baby camel so that the milk of the she camel can be fed to the filly. A section is devoted to breeding and training and another to horse riding. Poetry and horses is discussed in a section. This is followed by a discussion of pure bloodlines and the records that were kept in traditional societies. The horse breeding tribes of Arabia are identified as well as their ability to memorise the linage.

Chapter Four is titled: The history of the Arabian Horse and begins with a timeline which is followed by a detailed history. What I found fascinating is the way the history of the preservation of the Arabian horse follows closely the history of the rise and fall of Islam. The role of Islam in the spread of the Arabian horse and the contributions of Muhammad Ali Pasha and especially Abbas Pasha of Egypt in the middle of the 19th century is remarkable to note. He had kept more than 300 she-camels alone to provide milk for the foals of his stud which he housed in fabulous stables he constructed, one of which cost him one million Egyptian pounds and was built on a hill. Water was brought fifty miles away from the Nile river through an underground cistern.

The book, Makhtut Abbas Pasha compiled by Ali Bey his slave in which he compiled all the information on the genealogies of the Arabian has been hailed as “the greatest encyclopedia on the Arab horse’ “in a beautifully handwritten book illuminated in gold and inscribed in black, red and blue ink.

Chapter five surveys the Arabian Horse Today and a section is set aside each for the following geographical regions: The middle east Europe, The Americas, South Africa, Australia. World Arabian Horse Organisation is mentioned and there are some stats provided about the Arabian Horse populations around the world; the greatest number being in the USA (656628) and South Africa having 7316.

Chapter Six: ‘My Sojourns’ is really the travelogue part were the author in some detail and with interesting accompanying facts about the culture and context. Stud farms in Qatar, Egypt, Syria, Yemen, South Africa, The United Kingdom, Uruguay and Argentina have all been visited by the author. What one is happy to note is how a South African aalim is so well connected and received by other breeders (royal some of them) and is hosted by some of the finest stud farms in the world. The air conditioned, under floor heating and imported food that some of the horses receive will make most of our listeners, husbands and wives envious!

In his conclusion the author makes a case for a return to the original habitat of the Arabian. The qualities of stamina, living on meagre rations, living intimately with man, he argues can only be passed on to subsequent generations should the Arabians genetics retain the Bedouin setting. They should be bred in areas where they were originally found in order to retain their invaluable genetic traits-the genetic traits of the Kehailaan (pure bred Arabian. )

The book is relevant because it gives us, as believers a glimpse into the extraordinary relationship, that the sahabah and the Arabs, at the time of the Prophet sallallahu alaihi wasallam, had with their Arab mares and steeds.

The author has travelled extensively and visited some of the best stables and stud farms in the Muslim lands of Saudi Arabia, Syria, Jordan and other places. He shares his experiences, and photographs with the readers and this section of the book reads like a travelogue with accounts of some of the equally passionate breeders he meets on his sojourns.

The author, Mawlana Yusuf Bemath, a graduate of Darul Ulum Zakariyyah, completed an alim and qari course here and simultaneously did a BA degree in communication science through UNISA. In addition to that he completed an Arabic for journalism course in Egypt and then went to study in Syria for a short while. He has also completed a course in International law through Kings college London last year. He is currently teaching at a Darul Ulma and madrassahs in PE.

Apart from his passions for Arabians and the breeding of Arabians he is, it would seem, linked to the stud Bembro Arabians and lets out in his book that his cousin Haroun Bemath founded the Bembro Arabian Stud. The son of San Joaquin V who features on the cover of this book is from this farm this black colt won the Supreme National Stallion Award in 2011.

The book is in Hard cover, well referenced, is missing an index, is very well illustrated with photographs and line drawings; the services of an expert calligrapher have been used for the Arabic calligraphy. There is a useful glossary at the beginning for non-Muslim readers.

The book is currently stocked at:

Available after launch on the 7th December 2012 in:

Johannesburg: Radio Islam (011 854 7022), CII, (011 494 7000) and Al-Huda Stores (011 839 3790)

Durban: Al-Ansar (031 208 1601) and Darul-Ihsan Bookstores (031 377 7868)

Cape Town: Timbuktu Books (021 671 9819)

Or place an order at asilorders@yahoo.com for a signed copy to be posted to you.

So get your horses over to one of these stores and purchase a copy.

Inshalah Exclusive books will be stocking it from January.

In conclusion: To quote the author: I sincerely hope that that this modest work on this subject has shed some light on the work of Muslim scholars throughout history, as well as being a means of re-kindling within our hearts the desire to take up horse riding, the noble sunnah of the Final Prophet sallallahu alaihi wasallam.


Holiday time, get your children to read! Computer games etc should be dropped in favour of the many good books that are available to read!

Saturday, December 08, 2012

An Islamic Perspective to the issue of Reparations Maulana Dr Ashraf Dockrat Paper presented on 6 December 2012 DIALOGUE ON REPARATIONS AS A CRITICAL TOOL IN CONFRONTING & DEALING WITH OUR PAST: 4 - 6 DECEMBER 2012 Held at UNISA: Miriam Makeba Auditorium

An Islamic Perspective to the issue of Reparations
Maulana Dr Ashraf Dockrat

Paper presented on 6 December 2012 
Held at UNISA: Miriam Makeba Auditorium

Islam we all know is a religion that can be placed in a continuum with other major faiths in the world. We not only proudly claim those traditions as our own but equally lay claim to the developments in modern philosophical and ethical thinking which have benefited from their interaction with the Islamic tradition during the pre-modern period.

It would therefore be of little benefit to you if I repeat what my colleagues who share this platform today with me have to say. They are by far much more eloquent and penetrating in their analysis of the religious texts and all I want to say is that Muslims can easily, as you may have imagined, draw on symbols and quote texts from their two sources, the Quran and the sayings of the Prophet Muhammad peace be upon him, which echo these. We know that social justice for example emerges as an important theme in these primary texts. The Arabic ‘adl, the term that is most
commonly translated into justice in the Qur’an, means a thoroughgoing right
relationship. Traditions are not hermetic, alternate universes. Voices in the
religious traditions, to greater and lesser degrees, share both assumptions and conclusions with voices in the liberal human rights tradition. In fact, one can discern an increasing convergence in views of transitional justice over the past few years. Each tradition also contains internal disagreements, which indeed drive the tradition’s evolution. Still, it is possible to identify distinct centers of gravity in the two traditions, certain commitments around which most of their members converge, even if they sometimes debate what these commitments mean. It is from these commitments that they engage with other traditions, sometimes finding common ground, sometimes sharpening their differences. Broadly speaking, such an understanding is consistent, I believe, with philosopher Alasdair MacIntyre’s classic definition of tradition as “an historically extended, socially embodied

What this panel manifest is the rise of “public religion in the modern world,” to use the phrase of sociologist Jose Casanova. Confounding apostles of the secularization thesis that dominated the social sciences and humanities for decades, public, political religion is global in its impact and diverse in its valences. I hope that this paper, prepared at short notice, will contribute to that diversity.

The approach I would like to take this morning is more of a shariah and legal based one. Typically it would stress even more strongly the value of
punishment for bringing about the Rechtstaat – a political order based on the rule of law, human rights, and democracy. Under shariah rule the  preferred institution is the trial. The Islamic legal system or Jurisprudence contains I would contend, a number of what the legist have called “qawaid fiqhiyyah” or legal maxims which have a direct bearing on our discussion on reparations. What are the “qawaid fiqhiyyah” or legal principals (legal maxims) and why are they important when considering the Islamic legal position on an issue such as reparations?

Islamic tradition, developed a number of juristic tools and set for itself a methodology by which the jurist-consult or the mujtahid would approach the Quran, hadith, analogy (in the face of a growing number of similar questions which had precedent in the Quran and Prophetic example), the opinions of the companions and the consensus of scholars. In later times, and in order to ease the task of the jurist-consult, scholars derived a number of maxims which they used to guide their decisions on issues they faced. The Ottoman rulers supported the compilation of these Qwaid fiqhiyyah or legal maxims in order to make the work of their jurists and judges in the sprawling Muslim lands easier. Today we see a growing interest in the purposes and aims of shariah law-the maqasid or underlying purposes of the law due to a number of factors. Amongst these is the fact that Muslims often find themselves having to explain the rationale for their own substantive law based on the dominant legal system which has some under the influence of a rights based legal philosophy and secondly the possibilities that a maqasid based approach has for further ijtihad and legal thinking into modern day issues. The protection of life, the protection of honour, the protection of the mind, the protection of property, the preservation of religion are all some of the essential/ultimate maqasid or aims/purposes of the shariah- the Islamic legal system.
Together with these the qawaid fiqhiyyah (juristic maxims) provide us with the most innovative and exciting possibilities to analyse an issue such as reparations which is under discussion here today.  

A Legal Perspective on Remedies in Transitioning Societies”,  Professor Adv. Chitengi Sipho Justin; a DAAD Scholar & Advocate of the High Court in Zambia identifies some:

Any transitional society is likely to face the challenge of retributions for its citizenry that had fallen victim to grave violations of human rights perpetrated by the successive regime(s). There is general agreement that the challenge today lies in ensuring respect for basic human rights and laws through various mechanisms such as reparations. The definition of reparations is contested at best; at worst, it is murky or esoteric.
However, working definitions exist in both statutory law and case law.
For example, Article 75 of the International Criminal Court Statute (hereinafter referred to as the “ICC Rome Statue”) states thus: “The Court shall establish principles relating to reparations…including restitution, compensation, and rehabilitation.”

The Permanent Court of International Justice implicitly defined reparations, in the Chorzów Factory case, when it ruled that ‘reparation must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation that would, in all probability, have existed if that act had not been committed.’

From the victims’ standpoint reparations occupy a special place in a transition to democracy in that it acknowledges their plight, gives them back their dignity, ease their economic burden and assures them of non- repetition of these abuses.

Reparations, thus serve as one of the accountability mechanisms available to transitional societies. What we need in any discussion of the issue is an appreciation of the genesis and development of this right; the present status of this right under international law; the question of its enforceability; and to identify issues pertinent to the implementation of reparations at the domestic level.

Reparations date back to ancient times, especially in cases of transition from authoritarian regimes to democratic governance though they were pragmatically treated as simply philosophical theories. This was largely due to the historical notion that individuals could not be recognised as subjects of international law, hence, unable to access legal redress such as reparation for state-sponsored abuses. The individual’s right to reparations evolved out of the post- Second World War human rights regime, which firmly established the individual as a bearer of rights and duties under international law. West Germany’s efforts to compensate Holocaust survivors in 1952 were the first example of a large-scale, modern reparations programme.

Historically, after 1952 the fledgling reparations movement largely stagnated until the last two decades of the twentieth century. Since then, with the evolution of international human rights law and the international community’s quest to circumvent recurrence of the atrocities committed during the period, reparative efforts have acquired a great deal of attention. These efforts have now been promoted due to the proliferation of processes defined as ‘transitional justice’ and over the years, the development of reparations has taken diverse mechanism as evidenced in the establishment of the 1983 UN Trust Fund for Victims of Torture and now the ICC’s Trust Fund for Victims.

The 1990s brought about an era of accountability for former government officials and heads of state who had committed human rights violations and other abuses of power while in office against their own populations. Since then, at least 69 former heads of state have been formally prosecuted for serious human rights violations and or economic crimes committed during their administration with reparations ordered for victims in some instances. This era was historically a landmark in that it coincided with the massive filing of class action suits in the American courts against three prominent Swiss banks under the 1789 Alien Torts Claims Act (ATCA) for their complicity in the Holocaust. As such, it rekindled and reinvigorated renewed interest in the quest of repairing historical injustices which had stalled after 1952. This led to the launch of several complex issues of reparations in transitional states onto political agendas worldwide.

Debates in this line were held at various international forums including the World Conference against Racism. By the late 1990s a ‘global frenzy to establish reparations as a right’ was brewing in courtrooms, NGO offices, legislatures and newsrooms. This was supported by the establishment of internationally-supported tribunals and claims commissions through which the victims of human rights violations could pursue their claims.

However, these developments have been problematic. For example, between the second half of the twentieth century and the first decade of the twenty first, transitional societies around the world experienced the difficulty of satisfying simultaneously individual and collective needs of individuals, and overall, the constant tension between the provision of peace and justice.

Therefore, the right to reparations was buttressed in the late 1980s and early 1990s with the emergence of the democratic dispensation as a response to political changes in Latin America, Eastern Europe and African countries moving from repressive regimes to democracy. Prior to this, the right to reparations was looked at solely from the standpoint of international humanitarian law and not human rights violations by oppressive governments against their own citizenry. To date, this right has continued to develop taking established forms such as monetary compensation as in the case of El Salvador and guarantees of non-repetition.16 Another notable form is restitution as in the Jewish Holocaust survivors’ case where the Swiss Banks reached a settlement of US$ 1.25 Billion in 1998 as return of looted money and in lieu of chattel exploited from the holocaust victims. Others include satisfaction and moral reparations such as truth revelation in the case of South Africa where we have had our own TRC. I have strong criticism of that process but will not use this forum to express these. Rehabilitation as in the case of Bosnia and Herzegovina, where victims demanded free access to medical and psychological care, is another example of a recent development.

It would be inappropriate to discuss the Islamic legal perspective without an appreciation of the status quo of reparations under International Law since the shariah law in modern times has always worked in tandem with other legal systems.
As espoused by Priscilla Hayner, under international law the right to reparations is well established only for certain perpetrations bordering on human rights violations such as unlawful detention inter alia. Otherwise, the right to reparations is generally inferred from the victim’s right to an effective remedy as per Article 2(3) of the International Convention on Civil and Political Rights. Further, according to Article 1 of the International Law Commission’s 2001 Articles 22, it is a general principle of public international law that any wrongful act that violates an obligation under international law, gives rise to an obligation to make reparations as enunciated in the Chorzów Factory case.

As the field of transitional justice expands, reparative remedies have begun to gain an important foundation in international law. This is evident from the 1988 decision of the Inter-American Court of Human Rights in the case of Velásquez Rodríguez v. Honduras, in which the Court found that all states have four fundamental obligations in the area of human rights. One of these fundamental obligations, the Court held, is to ensure reparations for the victims of the violations. These principles have been explicitly affirmed by later decisions by the court and endorsed in decisions by the European Court of Human Rights and by UN treaty body decisions such as the Human Rights Committee. The ICC Rome Statute also enshrines this obligation.
Although The Hague Convention and Additional Protocol (I) speak only of compensation, reparations encompasses compensation as listed in the UN Draft of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law. By analogy, reparations is, therefore, covered by the Hague Convention. Another important international instrument on reparatory measures is the UN Draft Principles on Housing and Property Restitution for Refugees and Internally Displaced Persons which has already served as a valuable new tool to guide the reparation programmes in Kosovo, Tajikistan, Guatemala and East Timor under the auspices of the Dayton Agreement. The controversial Dayton Agreement did set a new standard in international law by incorporating reparations into peace agreements by including provisions on cooperation with the ICTY, and establishing mechanisms to provide housing and property reparations to those displaced in the transitional phase.

How have reparations been enforced?
In transitional societies there are two main mechanisms of enforcing reparations whether at national or international level. On the one hand, we have Court- Order approach (COA) and on the other hand we have Administrative Reparations-Programmes approach (ARPA). COA entails the victim(s) commencing court proceedings in which they claim reparations. Here the right to reparations only actuates after the Court has found for the plaintiffs (victims) and make an order for reparations. Examples include the South African Apartheid cases instituted under the ATCA. On the other hand, ARPA does not necessarily involve legal proceedings.
This approach is very common in instances where Truth Commissions have been constituted, and it is usually the Commission itself that will stipulate reparations as part of the solution package to repairing the past. Examples include the payment of pensions to the families of those who were killed or forced to disappear under Pinochet’s regime in Chile and the reparations for apartheid victims paid from the President’s fund in South Africa.

Institutions of enforcement include national and international courts. Under national courts, we have national courts of the State of commission and National courts of third States. Suing a State for damages before the courts of a third States would often fail due to State immunity. However, in some States, the responsible individuals can be sued, even if neither party has any connection to that State. Certain civil law States such as Germany provide for “civil universal jurisdiction” if the claim is brought as action civile in a criminal trial based on universal jurisdiction. Equally, in the USA, civil universal jurisdiction is possible under the ATCA but independent of criminal proceedings for claims in human rights violation cases.

At the international level there is the International Criminal Court and the Permanent International Court of Justice. At regional level, there are courts including the Inter-American Court of Human Rights, the European Court of Human Rights and the African Court of Human Rights. Others include specially mandated bodies such as the ICTY and the ICTR, and ad hoc claims commissions such as the United Nations Compensation Commission.

Pertinent Issues of Implementation at Domestic Level
Many countries possess robust domestic laws on human rights and reparations, or have integrated international legal standards on these issues into national law. However, using national laws to secure redress is a complex process that is often inaccessible to marginalised victims due to various issues as below:
Firstly, most new Governments would object to individual suits for reparation on the basis that the victims’ rights have since become statute barred. For example, in the case of Arce v. Garcia the Government of El Salvador raised this preliminary objection. However, on 4 January 2006, a United States appellate court upheld a district court decision to equitably toll the statute of limitations on the plaintiff’s claim until the end of the civil war in El Salvador. Plaintiffs, Salvadoran refugees, claimed they had been tortured by soldiers in El Salvador during the course of a campaign of human-rights violations.

Secondly, some new Governments are unwilling to make reparations arguing that the perpetrators had immunity by virtue of their official capacity at the time of the perpetrations. This issue was raised in the Nigerian case of Enahoro v. Abubakar. However, on 23 March 2006, a United States appellate court held that the defendant was not immune from suit under the Foreign Sovereign Immunities Act (FSIA), as the Act applies only to foreign states and their agencies, not to individual members of government. The plaintiffs had alleged that the defendant, as a member of the military junta that had ruled Nigeria from 1993-1999, was responsible for torture and killing. The appellate court remanded the case for further proceedings.

Thirdly, certain new Government would oppose the victims’ claim for reparations on the basis that they were not adequately identified as the victims hence lack sufficient locus standii to claim. In extreme cases, even national security is argued as a valid factor in consolidating the issue of locus standii as in the case of Arar v. Ashcroft. On 16 February 2006, a United States district court dismissed plaintiff’s claim, arguing that the plaintiff lacked standing, and citing national security concerns. The plaintiff had claimed he was tortured first in American, and then in Syrian custody, where he had been transferred under the United States’ “extraordinary rendition” programme.

Fourthly, harmonization of domestic reparation programmes with international law standards becomes an issue. For example, the fall of the Fujimori regime in November 2000 brought new possibilities for a shift towards respect for human rights in Peru and the development of a different national consciousness about the abuses of the preceding twenty years. The domestic proposal for arbitrary reparations to some victims was considered a mockery by the international community. This international pressure brought about the biggest advance in late July 2005, when the Peruvian Congress was prompted to pass the Law Creating the Comprehensive Reparations Plan consistent with international law. The list is long; suffice to mention the above due to the scope of the paper.

From the foregoing, and indeed on a plethora of authorities, it is clear that the idea of compensation in proportion to harm, raises insurmountable problems. Hence, there is need to reconceptualise fairness in terms of how reparations serve to promote the goals of recognizing victims, promoting civic trust, and fostering social solidarity. While in each individual case reparations can only address the consequences of a violation, at a more general level a body of law is strengthened if a breach thereof gives rise to an entitlement to reparation. This is the role of reparations in deterring possible future recurrences of large-scale human rights violations.

An often overlooked harm is the sociological and psychological harm suffered by the community. Within the framework of a discourse of community rights, we need to address this much neglected suffering which often falls underneath the radar of the human rights based legal discussions we have identified here. Community rights ensure social cohesion, provide for a sense of belonging and are a check against fractured and dysfunctional societies. Communities-cultural, religious and linguistic-are able to contribute to nation building and provide the social capital needed in emerging democracies such as ours only because they are whole and coherent. Apartheid legislation, especially the Group Areas Act meant that the sites of religious traditions and cultural practices were destroyed. By way of example let me site the example of the Muharram festivals which would take place in Grey Street Durban during this Islamic month of Muharram annually. The tradition has died as a result of the Group Areas Act. The psychological impact, and the impact on the collective dignity of the community as a result is immeasurable. This is only one example, I am sure that a keen observer will be able to find many more. A catastrophic cultural loss, such as this, on the entire Muslim community must, you will agree, impact on its ability to contribute to nation building and the national project. The question that this begs, and to which I have no answer, is:  how does one effect reparations for a cultural and religious loss and what are the mechanisms of restitutive justice in this case within the context of South Africa?

Before we look at the question of qawaid of qawaid al-fiqhiyyah as it pertains to the issue of reparations, it may be in order to tease out some of the issues.   

The legal concept of reparation has two components: the right of the victim of an injury to receive reparation, and the duty of the party responsible for the injury to provide redress.

Reparations can be sought by individuals through judicial systems or they can be policies introduced by the state to address the concerns or needs of a wider populace. While the first strategy is instrumental in creating legal precedent, the second is a more efficient way to recognize the concerns of more people.
Both these will be in keeping with shariah law, where the finding of the independent qadi court or the reform instituted by the caliph of the time are the result of their independent reasoning-ijtihad-and are equally valid instruments in the administration of the Muslim polity.

The United Nations Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law describes five formal categories of reparations: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.
1. Restitution – measures which serve to “restore the victim to the original situation before the gross violations…occurred.” This can include: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return of one’s place of residence, restoration of employment, and return of property.
2. Damages Compensation – the provision of compensation “for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case.” Such damage includes: physical or mental harm, lost opportunities, material damages and loss of earnings, moral damage, cost of legal, medical, psychological, and social services.
3. Rehabilitation – medical, psychological, social services, and legal assistance
4. Satisfaction – various measures which include the cessation of human rights violations and abuses, truth-seeking, searches for the disappeared, recovery and reburial of remains, judicial and administrative sanctions, public apologies, commemoration, and memorialization.
5. Guarantees of non-repetition – reforms ensuring the prevention of future abuses, including: civilian control of the military and security forces, strengthening an independent judiciary, protection of civil service and human rights workers, the overall promotion of human rights standards, and the establishment of mechanisms to prevent and monitor social conflict and conflict resolution.

Shari’ah law has evolved in a similar way and here it may be relevant to mention the two operative principles within the maqasid-purposes of the Islamic law as identified in the jurisprudential literature. They make an argument for the dual nature of the maqasid –ibqa and hifz-which we may call preservation and protection. “What affirms its elements and establishes its foundations” and secondly “what repels actual or expected disharmony”. The focus of latter and hence that of modern scholars has been on the aspect of protection alone. Each purpose, however has a positive or aggressive aspect and a negative or defensive aspect. From the positive aspect, the interest is secured by establishing what is required by the shariah through each of the maqasid. Thus the interest of Din-religion is secured by the creation of conditions that facilitate worship and establish the other essential pillars of Islam. The interest of life is secured by creating conditions for the existence of life. The interest of progeny is supported by facilitating and establishing family life. The interest of intellect is secured by promoting the means for the growth of the intellect. The interest of wealth is secured by creating proper conditions for the growth of wealth. From the defensive or protective aspect interests are secured by preventing the destruction or corruption of the positive aspect. Thus, jihad is prescribed for defending Din (Religion), while prayer, fasting, pilgrimage and zakah help to establish it. It is the duty of the Imam to ensure the proper conditions for both, while it is binding upon each subject to fulfil these duties, individually and collectively. Life is preserved through the provision of sustenance, the maintenance of good health, while it is protected or defended through the provision of penalties for those who destroy life without legal justification. Nasl (progeny) is promoted through the maintenance of healthy family life and the institution of marriage, while penalties are provided for those who would corrupt it and destroy its values. The preservation of aql is achieved through the provision of education and healthy conditions for its growth, while penalties are provided for the consumption of substances that destroy the intellect. Preservation of wealth is achieved by encouraging growth, while theft or misappropriation of wealth is punished through penalties. This is a brief overview of the five purposes of the shariah; the preservation and protection of the Din (religion); Life, Family, Intellect and Wealth will serve as a background for an understanding of the actual legal maxims which are derived not from this jurisprudential philosophy but rather from a distillation of the substantive law.

The Muslim jurist-consult, therefore, when looking at an issue such as reparations will assign himself the following main tasks:
  1. To settle the disputes in the light of the existing case law.
  2. To extend the law, if necessary, from the existing general principles of Islamic law.
  3. To formulate a new principle provided that the new principle meets the conditions laid down by the jurists.

The established principles of Islamic law are a source for the Muslim jurist
The first type of established principles are those that are either stated explicitly, in the teacts of the Quran and the Sunnah (Prophetic Tradition) or are discovered by the implication of these texts. The second type of principles are those that have been derived from a large number of cases by the jurists. The derived principle may or may not have the apporoval of ijma, what makes it an established principle is the recognition it receives from the jurists of  a school.

Let us look at each of these categories in turn. By way of example I have selected a few of the maxims which may apply to the issue of reparations. I have no intention of discussing each in detail. Please fill in the blanks as I read a list to you:

The prohibition of riba
The prohibition of gharar (uncertainty or uncalled for risk)
The principle of liability for loss and entitlement to profit (al kharaj bil daman)
The principle of unjustified enrichment (akl al mal al batil)

The combined operation of these maxims and principles may determine the Islamic standpoint on reparations. Today if an Islamic state were to redraft legislation on the issue of reparations it would at a minimum have to keep in view these fundamental principles. This is not to say that these are the only principles that are operative in the Islamic verdict on reparations. There are other principles too, but these principles have a very wide application and cover the entire range of issues, whatever their nature.

The one maxim that can be used is one that states:  ' the oppressed is not obliged to take revenge from others. Revenge within reason can be taken from the oppressor but it must be ensured that it is within the required limits and also not disproportionate. Anyone besides the oppressor cannot bear the brunt of the actions of the oppressor. I suppose if you really want to, the modern day Israel example can be used. Palestinians are the direct oppressed people who have lost their property while the same is not the case with the Zionist occupiers.

Another maxim is that of 'adversity should be alleviated to whatever extent is possible'. If property is stolen, then if the actual property can be returned, then this should be the case. If the actual item is destroyed but is fungible, then the fungible should be returned and if the item is non fungible then its monetary value should be returned.

You can always leverage on the Islamic law of evidence when exercising reparation rights. There has to be a reasonable amount of proof of being disadvantaged etc. 

There is a famous juzi’ called mas'alatus zafar. It refers to when a creditor finds the property of his debtor, then there is some recognition across all legal schools that the creditor can claim what is due, without the consent of the debtor. The difference amongst the scholars is when the found property is of the same genus and type to the property given out in loan. The Hanafi school states that the creditor can only possess the property if it is of the same genus and type that was given in loan. If not of the same genus and type, prior consent of the debtor to cede over the property to the creditor is required.

In terms of economic theory, Nozicks entitlement theory is echoed here and is relevant to any discussion relating to reparations. I can't go into detail here but he basically refers to two principles. Justice in acquisition and justice in transfer. The former refers to when property does not belong to anyone then one can lay claim to it. The latter principle refers to when the acquisition of property by one person disadvantages another person, then redistribution is justified.

If any of the two principles are violated, then it gives rise to his third principle of Pareto inefficiency in the distribution of resources. 

The point I would like to make is that Islamic jurisprudence as a general theory of law and shariah law with its underpinnings of Islamic legal theory have a great deal to offer in terms of the issue of reparations. My plea is that the discussion and debate when we have reached the important point in the movement of implementation and taking decisions should necessarily draw from the Muslim judicial tradition. This is what inclusivity and recognition demands from us. This is what recognition and restoration of a people’s dignity demands from us. And this is what we as a community have to offer.
I thank you.