THEIR SECOND ARGUMENT
“This matter is not restricted to printed books. It extends to computer programmes and other inventions for which the inventors had to expend great mental effort as well as material wealth. It therefore does not at all seem permissible that after putting in all effort and capital the original inventor is merely given the satisfaction that his invention is benefiting the whole world while others who copy the invention make a fortune.”
It is indeed surprising for Ulama to argue in this emotional and superficial manner. The reason for this emotional line of reasoning is the palpable lack of Shar’i evidence for the claim of validity of copyright and patency rights. The extension of the issue to computer programmes does not alter the ruling of the Shariah. In which way does the ruling require a reappraisal when it is extended to computer programmes? Just as the copyright issue is argued on the basis of the principles and rules of the Shariah, so too should the question of computer programmes be submitted to the Shariah.
An ignoramus can argue that the prohibition of copyright will have far reaching ramifications in view of the colossal trade in computer programmes. Hence, for the purpose of legalizing the right to debar others from reproducing computer programmes and from manufacturing new inventions, copyright should be upheld as a legal right subject to trade and commerce. This type of argument is unworthy for an Aalim of the Deen since it is devoid of Shar’i substance. It is based on pure emotional opinion– the peculiar emotional motivation being pecuniary greed.
The votaries of copyright in presenting this weird argument have not furnished any basis of the Shar’i. The extension of the copyright issue to computer programmes is not a Shar’i daleel. The votaries of copyright have made the fallacious averment that when someone else reproduces a computer programme or manufactures a newly-invented item, the original author and inventor are debarred from making their fortune and have to content themselves with congratulations and praises – all abstract issues which cannot satisfy pecuniary demands and tastes. This is a sweeping and a baseless assumption.
The inventor is not debarred from making a fortune from his invented product or programme. It does not follow from the reproduction of the computer programmes by others that the original author/inventor is prevented from marketing his invention. The profit of the inventor is made when he originally sells his invention. He is allowed to charge any amount for his product. If an entrepreneur discerns profit and fortune in the product, he will pay the desired price. The inventor may also market his product himself without selling the imagined right to others. There is no valid Shar’i grounds for begrudging others who reproduce the invented item and make a fortune by trading in it. Why should this not be permissible?
The votaries of copyright say:
“It appears not to be permissible”.
They themselves are in a quandary, hence they are unable to issue an emphatic ruling which categorically prohibits others from deriving benefit from an item they had lawfully acquired. They are therefore constrained to say: “It appears not permissible…”
Since there is no basis in the Shariah for preventing others from making a fortune in this manner, the claim that it should not be permissible is utterly baseless. When others coin a fortune, they are not infringing on the rights of the inventor nor are they usurping any of his wealth nor are they acting in any way which the Shariah prohibits. This argument too is bereft of validity and Shar’i substance.
THEIR THIRD ARGUMENT
“The Shari prohibition of buying and selling Huqooq-e-Mujarradah (pure or abstract rights) is not general in that the Shariah does allow buying and selling of certain types of rights. Hence, copyright can also be included in the scope of such rights which the Shariah allows to be bought or sold.
In pursuance of this argument, its votaries present the following discussion:
(a) Huqooq (abstract rights) and Manaafi’ (Benefits) are terminologies of Fiqh. The Fuqaha have ruled that it is permissible to buy and sell some kinds of these rights and benefits. Examples of this given by the votaries of copyright are the right of thoroughfare or walking on a pathway which is not part of the land of a house bought; the right to drink water from a well; the vacant space on top of a building known as haqq-e-ilw; and the right of inheritance. According to the votaries of copyright, since it is permissible to accept monetary compensation for the abovementioned rights, copyright too comes within the scope of this permissibility.
The votaries of copyright while conceding the prohibition of buying and selling of rights, present certain ‘exceptions’, and on the basis of these exceptions, it is inferred that copyright is permissible.
Firstly, the fundamental principle of the impermissibility of trading in rights cannot be denied. It has a real application. It pertains to valid and true rights recognized by the Shariah and which are enforceable by the coercive power of the Islamic state. These are not imaginary rights such as copyrights.
Secondly, on the assumption of the existence of these exceptions and the validity of trading in them, they do not constitute grounds for the claim that buying and selling the imaginary entity of copyright is permissible. If we have to assume that copyright is a valid right, then the fundamental principle governing trading in Huqooq-e-Mujarradah (Abstract Rights) will apply, viz., buying and selling of rights are haraam, hence trading in copyrights is likewise haraam.
It is illogic and an arbitrary figment of personal opinion to bring copyright within the purview of exceptions without valid Shar’i basis. The votaries of copyright have not provided any valid basis for inclusion of copyright in the list of exceptions. The exceptions are basically exceptions exempted from the general law of prohibition for some specific reason. It devolves on the votary of copyright to state the Shar’i daleel for including copyright in the list of exceptions for application of the fatwa of permissibility.
An arbitrary inclusion without Shar’i basis is untenable. The rule of permissibility applicable to the exceptions cannot be transferred to a fabricated and imaginary right spawned by a kuffaar system, without valid Shar’i daleel. If the rule of exceptions be arbitrarily applied to just any right created by norm and custom, the logical consequence will be the displacement or abrogation of the fundamental law which in this case is:
Buying and selling of rights are not permissible.
Thus, even if we should momentarily assume that copyright is a valid right recognized by the Shariah (but which in reality is not the case), it will be included within the scope of the prohibition of buying and selling rights which is the actual law of the Shariah applicable to rights. It is illogic and baseless to claim its permissibility on the grounds of the existence of exceptions to the general rule.
The determination of exceptions for exclusion from the actual Hukm (Law) is dependent on a special circumstance or reason (illat). It devolves on the votaries of copyright to explain the basis of the exceptions and thereafter to prove with evidence that such basis is to be found in copyright as well. Then only will there be justification for exclusion from the prohibition.
The fallacy of the argument presented by the proponents of copyright will be better understood from the following analogy. The meat of lions, dogs, wolves and pigs is haraam. Someone says that the meat of a bear is haraam. A man claiming that bear meat is halaal argues that not all meat is haraam. To justify his argument he cites that the meat of rabbits is permissible. He avers that the Fuqaha have ruled that the meat of wild buck and rabbit is halaal, hence the meat of a bear should also be halaal. He basis his conclusion on the fact that rabbit and buck meat is excluded from the prohibition. Therefore, it is permissible to exclude bear meat also from the prohibition. Everyone will understand that this preposterous reasoning is the product of ignorance. The same applies to the reasoning of those who claim that copyright is permissible because the Fuqaha regard the buying and selling of certain rights to be permissible.
Let us now examine some of the exceptions mentioned by the votaries of copyright.
(i) “When purchasing or selling a house, it is permissible to purchase or to sell the right to walk on the adjacent land which is not included in the land of the house.”
The argument in this example is that a right is being traded in. The right to walk in the pathway leading to and from the house is purchased or sold, and this is permissible, hence buying and selling copyright are also permissible.
The votaries of copyright who have presented this argument are guilty of half a truth. They have intentionally cited this example out of its context in such a manner as to mislead the unwary and the ignorant. The unwary reader is led to believe that the buying and selling of the right of thoroughfare are permissible and that this right is bought and sold in the same way as maal (tangible commodity).
Regarding the sale of the right of thoroughfare, the Fuqaha say:
“In the narration of Az-Ziyaadaat it is said: “It (the right of thoroughfare) is not permissible. Faqih Abu Laith has authenticitated it in view of it being a right from among the Huqooq (Rights), and the sale of Huqooq independently is not permissible. And similarly is the sale of shirb. In other words it is permissible (like the right of thoroughfare) subservient to the land by Ijma’ (Consensus of the Fuqaha).” (Shaami, Vol. 4, page 118)
There prevails some confusion regarding a minority view from which appears that the sale of the right of thoroughfare is permissible independently. After presenting a detailed discussion on this difference, Shaami summarizes it is as follows:
“It is apparent from their statement, viz. the sale of the pathway (i.e. the right to pass through) is not permissible, that the sale (of this right) independently is not at all permissible, and that it is only permissible in subservience (to the sale of the land) in that he sells the house with its pathway.” (Shaami, page 118, Vol.4)
On page 117, Vol. 4, Shaami states:
“The meaning (of permissibility) refers to the actual land, not to the right of thoroughfare.”
The example of the right of passage given by the Fuqaha is a house or room within a house. Entry to the inner house/room is only by passing through a passageway which belongs to another person. At the time of purchasing the inner house/room, if the passageway is also sold, then the right of thoroughfare being permissible is quite obvious. In this instance the very ground- the tangible passage- is sold to the buyer of the inner house/room. Hence, the right of passing here refers to the actual passageway which is a tangible or physical asset within the purview of the definition of maal (tangible commodity).
If the actual and tangible passageway is not sold, then the right to pass through the passage to reach the house/room is sold in accompaniment of the sale of the house/room. It is not sold as an independent right to anyone who does not purchase the house/room. The buyer of the inner house/room cannot in turn sell this right of thoroughfare independently to another person.
None of the Fuqaha condones the sale of such a right, not even the minority who has averred permissibility of selling it independently to the buyer of the house, on the basis of the interpretation that it is not a mere right, but a share of a tangible asset.
This example of the sale of the ‘right’ of passage or thoroughfare is totally different from copyright which according to its votaries is such a ‘right’ which can net one tens of millions of rands and dollars. Whereas the former sale of the supposed ‘right’ of passage is permissible due to an essential need, the imaginary right of copyright has been fabricated by the inherent greed of the kuffaar and acquired likewise by the motivation of greed.
The attempt to legalize the imaginary copyright on the basis of the analogy with the sale of the right of thoroughfare is indeed a degeneration from the sublime to the ridiculous – from the sublime pedestal of Ilm-e-Deen to the ridiculous level of Jahaalat (ignorance). It is most unworthy of learned men to resort to such ridiculous arguments to bolster their opinions.
(ii) The Right of Shirb
The response to the claim that it is permissible to sell the right of shirb (drinking from a dam, etc.) is stated in Shaami as follows:
“With regard to (the right of) drinking (from a dam, for example), verily, its sale independently is not permissible, for example he sells the right of drinking for a day or more, because it (shirb — drinking) means the right of drinking and irrigating. Huqooq (Rights) are not the subject of buying and selling by themselves. If he sells land with the (right) of shirb (drinking/irrigating), then this is permissible as it (this right) is subservient to the land. It is permissible to make something subservient to something else even though it may not by itself be made the objective such as the parts of an animal. Shirb (the right of drinking)) will not be included in the sale of the land except by express declaration. It is not permissible to lease the (right of) shirb by itself because Huqooq (rights) are not the subject of leasing by themselves just as they are not the subject of sale.” (Badaaius Sanaa’, page 179, Vol. 6)
The sale of the right of drinking (shirb) is permissible in the unanimous opinion of the Fuqaha only if such right accompanies the sale of the land, not the right sold by itself independent of the land.
“The sale of shirb: This is permissible subservient to the land by Ijma’.”
According to one narration which is not the Zaahirur Riwaayat, the sale of shirb is permissible independently because it is a share of the water, i.e. a share of a tangible commodity (water). But this is a minority view which is in conflict with the ruling of the Jamhur. Even in this obscure view of permissibility, the rationale is that such a sale independently is permissible because a share of the water is a tangible product which constitutes a valid subject of sale. This interpretation excludes shirb from the domain of rights, hence even in terms of this minority obscure view, there is no substantiation for the votaries of copyright.
The Mashaaikh of Balkh who are the proponents of the minority view will also refute copyright on the basis of the following factors:
? Copyright is not maal.
? Copyright is not even a right in terms of the Shariah.
There is, therefore, no substantiation for the copyright proponents in either the Majority or the Minority view. Furthermore, the Fuqaha who hold the minority view are unanimous with all the Fuqaha of all the lands of Islam in the fundamental principle: The sale of Huqooq-e-Mujarradah (abstract rights) is not permissible. There is absolutely no difference among the Fuqaha on this issue. The presentation of exceptions in no way overrides this fundamental decree of the Shariah.
The summary of the response is:
? The sale of the right of thoroughfare and the right of drinking is conditional. It is a sale which accompanies the sale of the land or the house. Its sale is not permissible independently
? The Fuqaha who have made the exception of an independent sale, do so on the basis on an interpretation that it is a share of a tangible asset.
? All the Fuqaha unanimously agree that the sale of rights is not permissible.
? Exceptions do not abrogate the original law, viz. prohibition of selling rights
? Copyright is not a valid Shar’i right nor does it qualify as an exception even on the assumption that it is a valid right.
The third example tendered by the votaries of copyright is Haqq-e-Ilw – the right of the space above the roof of a building. The manner in which this example has been presented conveys to unwary persons that the sale of this right is unconditionally permissible.
Regarding haqq-e-ilw, the following appears in Hidaayah:
“When the ground floor belongs to a person and the upper floor to another person and both floors collapse or only the upper floor collapses, and the owner of the upper floor sells his (right) of the upper floor, then this is not permissible because haqqut ta-alli (or ilw) is not maal.”
Commenting on this, Aini states:
“Because the right of the upper floor is related to air (space), and this is not maal.”
In Badaaius Sanaai, Vol. 5, page 166, it appears as follows:
“It is permissible to sell the house on the upper floor without selling the ground floor when there is a building on the upper floor. If there is no building on top, then this sale is not permissible because it is a sale of airspace, and the sale of airspace independently is not permissible.”
Allaamah Aini states in Al-Binaayah, page 226, Vol. 7:
“The sale of haqqut ta-alli (haqq-e-ilw) is not permissible by consensus of all narrations.”
It is abundantly clear from the aforegoing statements of the Fuqaha that this right of space above a building cannot be sold or bought as the votaries of copyright claim. If it be assumed that it is permissible to sell haqq-e-ilw, it will not constitute a basis for claiming permissibility of selling copyright because there is no resemblance between the two – the right of the upper space and the imaginary copyright. Whatever factor permitted the exclusion of haqq-e-ilw (in our assumption) from the general rule of impermissibility of buying and selling pure rights (Huqooq-e-Mujarradah), is not found in copyright to allow its exclusion from the basic law of prohibition of selling rights.
If the votaries of copyright desire permissibility for their imaginary right on the basis of an exception, then it devolves on them to present the common illat (cause, reason, circumstance) which occasioned the exception of their basis from the general law of prohibition of trading in rights.
It is unintelligent to claim that the meat of a wolf is halaal on the basis of buck meat being halaal. To prove the claim that wolf meat is halaal, there is the imperative need to furnish the daleel (proof). Pork is haraam. However, on account of circumstances its consumption becomes lawful. That circumstance is starvation leading to death in the absence of halaal food. If this illat exists and there is only wolf meat available, then due to the common circumstance, wolf meat will become halaal. In the absence of the illat it is unintelligent and ridiculous to argue that wolf meat is halaal because not all meat is haraam. Then to bolster this claim the example of the permissibility of consuming pork is cited.
This is precisely the line of argument of the votaries of copyright. They seek to legalize this imaginary and corrupt ‘right’ for the express purpose of coining a pecuniary fortune, and in the process infringe on the rights of countless people as well as constituting an impediment in the path of Da’wat and Tableegh. This aspect will be discussed further, Insha’Allah.
(b) The Fuqaha have held permissible payment of money to a government official in lieu of him stepping down from his post. A payment may be made to an officer to induce him to quit his post.
What is the resemblance between copyright and the payment of a sum of money to induce a government officer to abdicate his post in favour of another person? The votaries of copyright have truly displayed the low ebb of their ‘rational’ reasoning in the endeavour to have Shar’i legality conferred to copyright and its buying and selling. The payment of money for the inducement to abdicate is totally in conflict with the Qiyaas (Reasoning) of the Shariah. It is such an exceptional ruling with which the Fuqaha themselves found great difficulty to explain.
Commenting on this, Allaamah Aini said:
“The abdication is devoid of substance. However, the Ulama and the Rulers (of the Islamic states) have upheld it because of dhuroorah (necessity).” (Shaami, Vol. 4, page 14)
The conflict with the principles of the Shariah in this ruling has constrained some Fuqaha to say:
“Verily, the money which the abdicator accepts is rishwat (bribe) which is categorically haraam, and Urf (custom/norm) in opposition to Nass (Qur’aan and Hadith) is invalid.” (Shaami, Vol. 4, page 15)
Although Shaami presents an interpretation to rationalise this payment for abdication, the irrationality of it is inescapable. This example cited by the votaries of copyright totally lacks the ability for the constitution of a valid Maqees Alayh (Basis for Deduction of a ruling). It is in conflict with Qiyaas. The principle governing the validity of Qiyaas is that the Maqees Alayh itself should not be a ruling which is in conflict with Qiyaas.
The payment for abdication is not an act of trade and commerce. It belongs to the category of Sulh (Settlement by Compromise). The Shariah allows monetary payment to settle disputes as well as for abdicating rights. It is ludicrous to argue the buying and selling of the imaginary copyright on the basis of an irrational practice which has been excluded from the general rule, viz., The sale of Huqooq-e-Mujarradah is not permissible. It is totally unworthy to present this example for the endeavour to legalize the sale of copyright and the act of prohibiting Muslims from publishing books of the Deen which have been authored by persons other than the publishers.
In refutation of even the exception of abdication from an official post, Allaamah Shaami presents the opposite view of the Fuqaha in this regard. The discussion in Raddul Muhtaar, Volume 3, page 386 is as follows:
“It is permissible for the Mafroogh Lahu to reclaim the Maal-e-Faraagh: (Mafroogh Lahu is the abdicator—the official who stepped down from his post. Maal-e-Faraagh is the money paid to him for having abdicated his post).
Commenting on this mas’alah of Ad-Durrul Mukhtaar, Allaamah Ibn Aabideen states:
“He (the Author of Fataawa Khayriyyah) issued the fatwa in Al-Khairiyyah also that if he (an official) stepped down from his post in lieu of maal (money), then it is permissible for the Mafroogh Lahu (the new official who paid the money to secure the abdication) to reclaim the money because, it (the payment of money) is an act of payment in lieu of a haqq-e-mujarrad (a pure abstract right), and this is not permissible. All the Fuaqaha have explicitly ruled this (prohibition). Whoever has issued a fatwa in conflict with this, has indeed issued a fatwa in conflict with the (Hanafi) Math-hab on the basis of him having taken into consideration Urf-e-Khaas (a special norm restricted to a particular society). And, this is in opposition to the Math-hab. This Mas’alah (of prohibition of trading in Rights) is well-known.”
The aforementioned Ruling is the actual, original, most authoritative and rational Mas’alah of the Shariah prohibiting the practice of trading in Huqooq-e-Mujarradah. It negates even the exception and declares the right of the Mafroogh Lahu to reclaim his money from the abdicator. It is the Law of the Shariah as stated by all the illustrious Authorities of the Shariah. Allaamah Ibn Aabideen’s fatwa of permissibility does not have greater force, validity and authority than the actual Ruling of the Shariah stated above.
While the Actual Ruling is based on an Immutable Principle of the Shariah and is the Fatwa of the Aimmah-e-Mujtahideen, the view of Allaamah Ibn Aabideen is his opinion based on examples which are exceptions to the rule. In addition it is an opinion which comes more than a thousand years after the epoch of Khairul Quroon (the Three Noblest Ages of Islam). The view stated in Fataawa Khairiyyah is fully in consonance with the Principles and Teachings of the Shariah.
On the other hand, Ibn Aabideen’s opinion is at variance with these principles and in conflict with the explicit rulings of the Fuqaha, hence it does not enjoy greater force than the Actual and Original Ruling as stated in Fataawa Khairiyyah. Those who adhere to the explicit ruling of all the Fuqaha, of all the lands and ages of Islam, as mentioned by Allaamah Ibn Aabideen himself, have greater authority and force than those who peddle the cart of imaginary rights on the basis of exceptions which themselves are dubious and riddled with conflicting views.
Furthermore, sight should not be lost of the fact that Allaamah Ibn Aabideen’s fatwa of permissibility applies to a real right recognized by the Shariah, not to any imaginary, kuffaar-conjectured ‘right’ called copyright. Also, the view of permissibility does not allow the Faarigh (Abdicator) to sell his right to all and sundry who will put up the post for sale. The votaries of copyright, therefore, have absolutely no grounds for presenting this view in justification of copyright.
(c) “Some Fuqaha have, on the basis of Urf-e-Khaas, even permitted taking goodwill for shops and Waqf property, which is totally unlawful.”
The mentality of these votaries of copyright is truly corrupt and weird. They admit that practice of charging goodwill is ‘totally unlawful’, yet they audaciously advance it as a basis for the endeavour to legalize copyright. If “some Fuqaha” have legalized “goodwill” in view of certain peculiar and special circumstances, it does not follow that this unlawful practice has become permanently lawful and the original ruling of prohibition has become permanently abrogated.
Furthermore, it is absolutely ludicrous to present a haraam practice for a basis of deduction. There is absolutely no validity in this argument. In fact, to entertain this type of unprincipled reasoning is an insult to knowledge and intelligence. The insipidity of the palpable drivel of presenting as a basis of deduction an isolated haraam practice, legalized by some Fuqaha on account of some specific circumstance in a restricted sphere of a particular community –the community of Cairo in this instance—should be quite apparent to those who have a proper understanding of the operation of the principles of the Shariah.
(d) All the statements of the Fuqaha pertaining to Huqooq-e-Mujarradah (Rights) and Manaafi’ (Benefits) are not based on any explicit aayat of the Qur’aan or Hadith. All such statements are the opinions of Ijtihaad and Qiyaas, hence there is scope for further examination (with the intent of producing change).”
This miserable averment of the votaries of copyright, who happen to be Molwis, exposes their hidden preference for admut taqleed or abandonment of Taqleed. For the sake of legalizing the imaginary copyright, this sweeping claim has been made. In fact, the very basis of the Shariah is rocked by this utterly fallacious assertion. The very same tune of re-interpretation of the Shariah sung by the modernist mulhideen (heretics) is being piped by the liberal molwis who have resolved to confer Shar’i legality to every haraam commercial practice of the capitalist kuffaar.
In view of the gravity of this claim, it is an incumbent duty on these votaries of copyright to dissect all the statements and principles of the Shariah pertaining to Huqooq-e-Mujarradah and Manaafi’, and to show exactly which of these juridical principles and details are the mere products of opinion of the Fuqaha, which today stand in need of reinterpretation. These molwis have failed to understand that the Usool (Principles) of the Shariah are immutable being based on Qur’aanic and Hadith Nusoos. Thus the specific ahkaam structured on these immutable principles are likewise in the category of immutability until such time that evidence is forthcoming to prove an error in the process of deduction.
It devolves on the votaries of copyright to categorically state if the fundamental principle, viz., The Sale of Huqooq-e-Mujarradah is not permissible, is in need of re-interpretation. The Fuqaha did not suck such principles out of their thumbs. Their rulings based on the immutable principles of the Shariah are not the figments of imagination as is the copyright issue which is purely and plainly a kuffaar concept which has no validity in the Shariah. It is necessary for them to state which ruling or principle has to be reinterpreted to gain legality for copyright and to trade therein. It also devolves on them to study the basis from which the Fuqaha have evolved the principles.
(e) “Copyright is maal (tradable commodity). Tangibility or being of a physical nature is not a requirement for something to be maal. The definition of maal has been fixed by Urf (Prevailing Custom), hence can change with variation in Urf. In future too, the criterion for the determination of what actually is ‘maal’ will be customary norm. In fact according to the Shaafi Math-hab ‘maal’ is every such thing from which benefit is acquired whether it be a tangible object or an abstract benefit. The same is also understood from the versions of the Maaliki and Hambali Math-habs. These Math-habs fix ‘manfa-at’ (benefit) as the basis of ‘maaliyyat’ (being maal), be the entity tangible or intangible.”
This type of unprincipled reasoning reveals that the liberal Molwi who has tendered this argument is experimenting with Admut Taqleed. While overtly he and his colleague liberal Molwis are followers of the Hanafi Math-hab, they covertly betray the tendencies of the ‘holy’ cows and bills of India, which roam around aimlessly, eating from this one’s basket and that one’s basket, and in the process being the recipients of a whacking administered to them by some irate owners of the baskets into which they burrow their mouths.
The liberal Molwi who presents this type of incongruous and warped argument should firstly state whether he is a Hanafi, Shaafi, Maaliki or Hambali. The Deen is not an object to trifle with. The immutable Shariah of Islam is grounded in an Imaan of eternal values and transcendental facts, the declaration of which is made in several Qur’aanic aayat and Ahaadith of Rasulullah (sallallahu alayhi wasallam). Thus, the Qur’aan declares:
“Then We have established you on a Shariah. Therefore follow it, and do not follow the base desires of those who lack knowledge.” (Surah Jaathiya, Aayat 18)
“This Day have I perfected for you your Deen, and (this Day) I have completed for you My Favour, and I have chosen Islam for you as your Deen.” (Surah Maa’idah, Aayat 3)
The Shariah of Allah Ta’ala is not an ambiguous concept which submits to a process of metamorphosis and transformation with the vicissitudes of the fluctuating whimsical desires of man. The Shariah is a constant, divine entity which had acquired its pinnacle of perfection in the very age of Risaalat.
The obligation and function of the Aimmah-e-Mujtahideen such as Imaam Abu Hanifah, Imaam Maalik, etc. were merely to evolve the principles of the Shariah and codify and systematise the entire edifice of this sacred immutable Shariah which is structured on the Final Word of Allah Azza Wa Jal, viz., Wahi Matlu’ (the Qur’aanic Revelation) and Wahi Ghair Matlu’ (the Ahaadith of Rasulullah— sallallahu alayhi wasallam).
The claim of the liberal Molwis, portraying themselves overtly as Hanafis, that these immutable Shar’i principles are the opinions of the Aimmah-e-Mujtahideen, hence subject to re-interpretation, is religiously scandalous since this notoriety is uttered by men of learning who are professed followers of the Hanafi Math-hab. They have absolutely no grounds and no justification to attempt a defence of copyright by sampling from the different Math-habs thereby churning up a hotchpotch concept which has no validity in any Mathhab.
Such Talfeeq (fallacious admixture) of Math-habs is reprehensible according to all Math-habs. None of the Math-habs condone this type of freelancing in which the liberal extracts issues which appeal to his whimsical fancies in the sphere of Deeni masaail. If the liberal Molwis have abandoned their allegiance to the Math-hab they profess to be adherents of in favour of donning the mantle of Admut Taqleed, they should boldly make their proclamation, and desist from the elusive exercise of flitting from Math-hab to Math-hab in search of arguments when they realise that their argumentation is devoid of substance in terms of the principles of their professed Math-hab.
If we are debating with a ghair muqallid, then we shall know what direction to take in the exercise to neutralise his arguments. Citing this Math-hab and that Math-hab for support upon the display of bankruptcy of dalaail, conveys the distinct impression of a drowning man clutching at every floating straw. These Molwis who propound the concepts of liberalism of the western world are confusing ordinary Muslims with their misleading arguments presented in academic hues. But the vision of men of Knowledge penetrates the haze to discern the incongruency and diabolism of the proponents of modernism who come squarely within the ambit of the following fear stated by Rasulullah (sallallahu alayhi wasallam):
“Verily, I fear for my Ummah the Aimmh-e-Mudhilleen.”
That is, such learned men – Imaams, Molwis and Sheikhs – who will mislead the Ummah with sanctimonious arguments motivated by the twin ailments of hubbe-e-jah (love of name/fame) and hubb-emaal (love of wealth). To prove their point – which they can never do on the basis of the Shariah – there is the imperative need for the liberal Molwis to state with exactitude:
? What do they believe copyright is? Is it classified among Huqooq-e-Mujarradah or is it Maal? Whatever it is in their opinion, they should state it without ambiguity.
? For the claim they make, it is necessary that they cite their Shar’i dalaail and basis of deduction. Concealing in ambiguity by the presentation of a concoction of postulates, principles, exceptions and suggestions drawn from a variety of Math-habs is not a principled argument. It is devoid of Shar’i substance and rational value.
? If they aver that copyright is a valid right, then in addition to proving this claim with Shar’i daleel, they are obliged to categorise it and assign it to a class of Huqooq. Upon this classification, they must provide the daleel for their choice.
? If they exclude this imaginary right from the category of Huqooq to which the prohibition of sale is applicable, it will not suffice to tender as proof a couple of exceptions. It devolves on them to present the common illat on the basis of which the exception from the prohibition is justified.
THE DIFFERENCES OF THE MATH-HABS
Seeking refuge behind the extremely thin veneer of Math-hab differences does not avail the cause of the liberal Molwis. Inspite of the existence of differences among the Math-habs, the validity of copyright cannot be substantiated on the basis of any of the Four Math-habs. The sale of a right in accordance with any Math-hab is not a basis for proclaiming the validity of copyright because no Math-hab recognizes this imaginary right which militates against the teachings and spirit of Islam.
Furthermore, recourse to a teaching of another Math-hab is permissible only in cases of dire need. On the assumption that copyright is a valid right, then too, it is not permissible to extract a ruling of permissibility from another Math-hab to permit trading in this ‘right’ in view of the fact that there exists absolutely no need for this extreme measure.
The masses of the Ummah are not at all affected adversely if a couple of authors are not allowed to sell publishing rights to amass fortunes for themselves. On the contrary, the masses will benefit if such a right is not granted to the authors. Besides presenting some ambiguous statements regarding the definition of maal and rights in the other Math-habs, no attempt has been made to show precisely the grounds on which copyright and preventing others from publishing a book are permissible in terms of the Maaliki, Shaafi and Hambali Math-habs.
The vagueness and hollowness of the arguments of the votaries of copyright are conspicuous from their very endeavour of seeking refuge in the folds of other Math-habs. This in itself is an admission of the untenability of copyright in terms of the Hanafi Math-hab. Hence the need has arisen for scouring elsewhere for ‘proofs’ to ratify the imaginary right. If the liberal ‘Hanafi’ Molwis peddling the case of copyright were able to conclusively prove the validity of copyright on the basis of the principles of the Shariah in terms of the Hanafi Mathhab, they would not have ventured into the pastures of the other Mathhabs.