Maintaining Mizan: Protecting Biodiversity in Muslim Communities

Ali Ahmad and Carl Bruch

Ali Ahmad was, when this Article was prepared, a Visiting Scholar at the Environmental Law Institute (ELI) in Washington, D.C. He is a Lecturer at the Faculty of Law of Bayero University, Kano, Nigeria. Carl Bruch is a Senior Attorney at ELI where he directs the Africa Program. Philip Fryers conducted supporting research for this project. Support for this project was provided by the John D. and Catherine T. MacArthur Foundation.

[32 ELR 10020]

Protecting biological diversity in Muslim communities presents a paradox. On the one hand, Islamic law, which governs all aspects of Muslim life, has a broad set of principles and mechanisms that mandate respect for all the elements of God's creation, the prevention of waste and harm, and maintenance of the balance of life on earth (mizan). On the other hand, there have been relatively few legal, institutional, or on-the-ground developments to protect biological diversity in many communities and nations that adhere to Islamic law.¹

Recent decades have seen significant population growth in North and West Africa, with concerted efforts to promote social and economic development. Without a strong environmental framework to guide sustainable development, many Muslim nations in the region have seen significant losses of habitat (especially forests and grasslands), air and water pollution that degrade habitats and human settlements, and depredation of wildlife. For example, between 1990 and 1995, Sudan (which harbors the second largest total forest areas in sub-Saharan Africa) lost 1.763 million hectares of its total forest area, an average annual rate of destruction of 0.83%.² This trend occurred throughout Muslim Africa, with Algeria recording the highest annual destruction rate of 1.22%, Cameroon (0.65%), Chad (0.84%), Mali (0.96%), Morocco (0.31%), Nigeria (0.86%), and Senegal (0.66%).³

Africa's rich patrimony of biological diversity is at risk throughout all the subregions. Thus, in West Africa, timber and medicinal plants are threatened, as are numerous mammals.⁴ For example, 23% of Mauritania's mammals are threatened with extinction.⁵ In fact, assessments may understate the threatened status of many species, as scientists are still documenting threats to and loss of biodiversity in isolated areas throughout the region.⁶

Some of the threats to biodiversity in Muslim communities are traceable to Islamic beliefs and practices. For example, under Islamic law, people have free access to water-based resources, which has contributed to excessive hunting of the pygmy hippopotamus for food.⁷

Many of the modern legislative attempts to redress and prevent environmental damage in these countries have been modeled on foreign laws—for example, from France and Francophone countries—or from international conventions. As such, they are frequently viewed by Muslim individuals as external and not reflective of the Islamic law that guides their life. To the extent that villagers or imams know about the laws, then, they are viewed as inconsistent or irrelevant with the divine law that they have committed to follow.

In fact, Islamic law and contemporary environmental law (international and comparative) share many of the same bedrock principles: respect for diversity and ecological balance, prevention of harm, and avoidance of waste. By finding common ground between the two bodies of law, Muslim governments and environmental advocates can fashion effective and workable standards, norms, and institutions to protect biodiversity in Muslim communities in Africa.

This Article seeks to highlight common ground that can lead to improved protection and management of biological resources in Muslim communities. By rationalizing protection of biodiversity with Islamic law, this Article seeks to enhance the profile of biodiversity in Muslim communities and offer an alternative framework for environmental scholars and advocates seeking to protect biological diversity. It builds upon recent research into Islamic environmental ethics,⁸ identifying specific, concrete options for government [32 ELR 10021] agencies and environmental advocates who are developing legal norms and institutions to protect and manage biological diversity.

The options that are advanced expand upon existing Islamic law and institutions. As such, Muslim individuals and religious leaders are more likely to accept the norms and more readily modify their practices to comply with the law. While this Article focuses upon Muslim communities in Africa, the analysis draws upon Muslim scholarship from Africa and beyond. At the same time, the experiences from Muslim communities in Africa and the scholarship from Muslim jurists in Africa may well have potential value in Muslim communities in other regions.

Section I provides an overview of Islamic law, including its sources and mechanisms for developing and applying it. Section II explores the Islamic concept of biodiversity and objectives for protecting biodiversity under Islamic principles. Building on these basic Islamic principles and worldview, the section then analyzes a variety of Islamic mechanisms and norms that protect animals and plants and could be developed further to protect biological resources more broadly. Section III examines Islamic norms governing the use of biological resources and identifies criteria for determining when a use is legitimate under Islamic law and when it is wasteful or causes illegal harm. Section IV synthesizes the analysis of sections II and III to provide an overview of options for protecting biological diversity in Muslim communities, highlighting both possible formal legal developments and informal initiatives, as well as identifying possible challenges. Section V provides some closing thoughts on biodiversity protection in Muslim communities.

I. An Overview of the Islamic Law Tradition

The spread of Muslim communities reaches across the globe and varies widely in size and concentration. In these communities and in the daily lives of millions of Muslim individuals, Islamic law is the central system of values and norms, irrespective of its enforceability by a formally constituted authority. This centrality assumes particular importance where Muslim individuals constitute a sufficiently high proportion of society so that they have been able to preserve their traditional legal identity.

In the contemporary context of international norms reshaping societies around the world, Muslim communities have sought to reclaim their societal values through recourse to traditional Islamic law. Muslim jurists play an essential role in evaluating new concepts in the light of Islamic precepts. However, their failure to keep apace of modernity has resulted in stagnation of many valuable Islamic concepts in Muslim communities.⁹

The success or failure of a new or emerging concept in Muslim communities is sometimes determined by the manner in which such a concept is perceived. Insistence of many Muslim communities and governments on traditional norms and the suspicion they have of foreign, non-indigenous concepts is partly informed by the view that an Islamic society—even if it embraces modern materialism and consumerism—is still a spiritual one and that such a society is not amenable to many secular notions. Rather than expending energy on transplanting foreign concepts to Muslim communities, a more indigenous Islamic rendering of those concepts is more likely to take root. For example, Prof. Azizah Y. Al-Hibri has demonstrated how the doctrine of separation of church and state may be advanced or doomed depending on how it is characterized: "If explained as a guarantee of freedom of belief for all, the concept would then of course be consistent with the Charter of Madinah. If understood as an anti-religion provision, however, a highly spiritual population will most likely reject the concept."¹⁰

Among Muslim communities, application of Islamic law is not identical in all aspects, as local customs or different colonial influences have affected the law directly and indirectly.¹¹ However, the link that Islamic law maintains with its traditional sources offers a unifying platform for Muslim communities. Moreover, a norm that is based on Islamic law has the potential of applicability and of voluntary compliance in Muslim communities all over the world.

The essential nature of the Islamic legal system—or Shari'ah—lies both in its textual or scriptural substance and in the scholastic method used in its application and implementation. The "text" comprises the Qur'an, which Muslims hold as the word of God as revealed to the Prophet Muhammad, and the Sunnah or Hadith, which consists of the Prophet's sayings, deeds, and tacit approval.¹² The text provides the subject matter of Shari'ah, and it establishes Islam's immutable values by which one may distinguish righteousness [32 ELR 10022] from mischief, right from wrong; and it sets forth a few rules that may be regarded as "law."¹³

The human understanding and rendering of Shari'ah through scholastic legal exercise is known as fiqh.¹⁴ Literally connoting "an understanding," fiqh is the human rendering of Shari'ah based upon the social, material, and intellectual milieu of a given age, and it constitutes the temporal, positive law of Islam.¹⁵ Details of a fiqh ruling on a particular matter may vary depending on time and place, as evidenced by the development of various schools of law that developed in different cities and eras of Islamic civilization, and continues until this day. Nevertheless, Shari'ah values are permanent and universal.¹⁶

Muslim communities are organized around a hierarchy of values that is structured to promote the societal welfare without jeopardizing the rights of individuals. Within this structure, each aspect of Islamic law needs to comport with Shari'ah values, so that utilitarian functions of the law are subjected to ethical considerations. Thus, Islamic law leans toward subordinating "purely economic, political or engineering judgment to the criteria of social justice in Islam."¹⁷

The Islamic law tradition is woven around its sources, which are hierarchical. The level of authority, acceptability, or universality of a norm often depends on its origin within the hierarchy of sources. The various sources may be categorized into two, with the textual sources, the Qur'an and Sunnah, as the primary sources and all others as secondary. The Qur'an occupies the penultimate position not only in religious rituals or private matters, but also in legal, political, and economic issues as well. Every aspect of a Muslim's life must be linked to the Qur'an.¹⁸ The authority of the Qur'an is binding, and Muslims strive to conform all aspects of their lives as much as possible to its provisions, because a "good" life is defined as one that is lived in accordance with its provisions.¹⁹ However, because the Qur'an has multiple layers of meanings, the Sunnah—or tradition of the Prophet—offers valuable assistance in clarifying and illustrating those meanings and applying them, as well as eliciting and prescribing new applications to respond to contemporary challenges. The Sunnah often expresses with more particularity the generalized principles of the Qur'an.²⁰ The authentic Sunnah has generally been treated as having an equivalent legal authority with the Qur'an, and it has received significant attention from lawyers and legal commentators, perhaps due to the specificity of its provisions.²¹

The secondary sources of Islamic law primarily include the processes and techniques for discerning and deducing the law in the primary sources as it may apply to a particular issue.²² The most authoritative source in this category is ijma'a, or consensus.²³ In situations where Islamic law must address new phenomena that are not specifically addressed by the textual sources, the consensus of Islamic scholars serves as an authentic mode of deriving applicable laws.²⁴ Ijma'a cannot be inconsistent with the Qur'an or Sunnah, but it is binding on the generation that makes it, and usually on subsequent generations.

Next in the hierarchy of secondary legal sources is qiyas, the method of analogous deduction of law. Where ijma'a cannot be deployed to respond to new challenges, scholars employ qiyas. Qiyas is a process exercised by scholars who are familiar with the spirit and letter of the law to determine new rules from old ones, using analytical comparison of the causes or illah behind the old rules and their connection with the potential new ones.²⁵ Ijma'a and qiyas are by no means the only secondary sources of Islamic law. Other sources have been used in varying degrees by different schools of Islamic law, although there is disagreement concerning their status as independent sources comparable to the ones mentioned above, or as appendages to them. In this category, one finds istihsan (preference), istislah (public interest),²⁶ 'urf [32 ELR 10023] (local custom), and compatible foreign sources.²⁷ Together, these subsidiary sources constitute a set of methodologies useful for developing an understanding of the law for a given legal issue.²⁸

Although traceable to the Qur'an, which often lays down broad values and directions to be followed, the substance of any legal inquiry about environmental norms in Islam will be found through the process of fiqh. This is because, for Muslims, understanding God's command is a continuous process which each generation undertakes to respond to the challenges it faces. As a result, Islamic law is developed by jurists who are largely independent of governmental authorities and whose weight of opinion depends on their prestige in scholarship and piety. It is the clarification and crystallization of the Qur'anic values and methods presented by jurists' fiqh that legislatures may implement and judiciaries may enforce. Such crystallization is often left in fiqh books and annotated by other jurists or applied and expounded by the courts to specific cases, a system akin to the unwritten approach of Anglo-American common law.²⁹ At the same time, and perhaps due to Islam's exposure to foreign nationals who were not conversant with the jurists' discovery process, those rules often were codified in a single statute, in close analogy to the civil-law tradition.³⁰ The first such codification was undertaken by the Ottomans in 1869, for use by the newly established civil courts during a period of increased interaction between Europeans and Muslims.³¹

Most Muslim communities especially in Africa became colonized by various European countries of differing legal systems. Most of these African countries have adopted a constitutional form of government with national laws embodied in statutes and ordinances. Despite the admixture of post-independence laws with various colonial imprints, Islamic law still serves in varying degrees as one of the bona fide sources of norms and legitimacy in African Muslim communities. Consequently, the constitutions of many Muslim countries provide for the application of the substance of Islamic law and its method.³²

This Article reviews Islamic law provisions potentially affecting the protection of biological diversity. In so doing, it emphasizes the need for constant evaluation and utilization of Islamic law concepts in seeking to develop and implement laws, policies, and programs for biodiversity protection in Muslim communities. Such a process of evaluation will result in improved protection through the voluntary compliance by communities and individuals who otherwise might not be persuaded about the need for biodiversity protection.

II. Biodiversity in Islam

Although the term "biodiversity" was not coined until around 1980,³³ Islamic law has established foundation principles over the last 1,400 years that recognize the inherent value of the diversity of plants, animals, and other biological resources. It has also developed a variety of mechanisms, norms, and institutions to advance these principles and ensure that all the elements of God's creation continue and that the ecological balance—or mizan—is maintained. This section examines the concept of biodiversity under Islamic law and custom, surveys particular Islamic objectives in preserving biological diversity, and analyzes Islamic mechanisms that may be applied or expanded to protect biodiversity in Muslim communities.

A. The Concept of Biodiversity in Islam

Any discussion on the protection, access, and use of biodiversity in Islam proceeds from the consideration that all biological resources are God's creation, and that they are part of a diverse universe designed and operated under a universal order.³⁴ To live a "good" life under Islam, then, people must love all forms of life and care for them for the simple reason that they are God's creatures. Accordingly, the Prophet commanded: "Do not make any living thing to be an object of a target shooting game."³⁵ Furthermore, Islam establishes that the diversity of God's creatures³⁶ are united [32 ELR 10024] and interrelated not only concerning their origin and creation, but in their growth and reproduction.³⁷ Conserving biodiversity within the Islamic paradigm therefore necessarily draws on the comprehensive manner in which Islamic law constructs the creation of all organisms and earth's elements in the unified design of God. Islam has insisted that none of the creatures is independent, and one cannot harm any part of these creatures without necessarily affecting the others.³⁸

Fundamentally, Islam considers humankind as part of these creatures and not distinct from them, and all are subject to a single universal order.³⁹ Acknowledging that the earth's resources are diverse and numerous and that ability of humankind to understand them may be limited,⁴⁰ Islam urges us to view the diversity of these resources, their beauty, and intricate components or properties, as a manifestation of the majesty of God.⁴¹ As part of that order of nature, Islam teaches that God has subjected the earth's diverse resources to human beings,⁴² whom He appointed to be His representative, steward, and trustee for those resources.⁴³

Two factors make this subjugation of resources to humans relevant to the protection of biological diversity. The first is responsibility and accountability for resource use. Utilization of the resources by people is expected, like any other trustee, to be reasonable in the context of the spiritual and material needs of that trustee as well as the sustainability and maintenance of the diversity of the entrusted resources.⁴⁴ Thus, the right of access to and use of biodiversity entails the responsibility to ensure its sustainability and continued diversity. The Prophet Muhammad was quoted to have said in this regard: "The world is green and beautiful, and God has appointed you His stewards over it; He will see what you will do. So be careful of [what you do in] this world and [what you do with] women, for the first test of the children of Israel was in women!"⁴⁵ The need to account to God for one's use of natural resources presents an opportunity to develop specific norms governing what constitutes use and what constitutes abuse of biological resources.

The rudiments of conservation laws in Islam reflect this trustee-right-and-responsibility posture, from which Muslim societies may draw future mechanisms for biodiversity protection. Despite the clear indication of the general principle of rational use of resources in Islam's primary texts, jurists have yet to elaborate detailed rules regarding the use and protection of biodiversity. This omission is not surprising since the unsustainable depletion of natural resources has not been an issue until recently. Determining what usage is excessive or wasteful today may be complex, but a policy that is based on Islamic principles would tend to focus not only on the needs of humankind but also on the effects of the use on the resources and on the ecological and social balance of an interconnected planet. Ultimately, Islam urges consideration of nature but it does not prevent its use, and the level of acceptable use will depend on both the human needs for and the impacts on the natural resources.⁴⁶

The second important consideration in Islam's subjugation of all natural resources to humans is that every element, regardless of its current anthropocentric benefits, has an intrinsic value. The Qur'an declares that the earth's resources, apart from their benefits to humankind, have independent reasons for their existence.⁴⁷ For example, every organism fulfills certain spiritual functions in acknowledging the glory of its Creator:

Seest thou not that it is God Whose praises all beings in the heavens and on earth do celebrate, and the birds [of the air] with wings outspread? Each one knows its own [mode of] prayer and praise. And God knows well all that they do.⁴⁸

To deprive an organism of its existence can only be justified by a need that is legitimate, given human spiritual and material [32 ELR 10025] needs as well as the attendant harm that may be occasioned to other beings. Once it is appreciated that unused or spared resources are not wasted but that they have other utilities such as displaying God's artistry and partaking in His praise, a venture to which the humans also aspire, more thoughtful consideration may overcome actions that would unnecessarily consume or threaten those resources to extinction. After reviewing some of the verses under consideration here, Pastor Roger Timm concluded that Islam's assigning intrinsic value to nature provides a basis for protecting natural resources in Muslim communities.⁴⁹ The distinctive Islamic viewpoint of the need to restrain human activity and urge care is based neither on a sacramental view of the earth nor on a profane one, but that there are intrinsic, if unappreciated, values in every natural resource.

B. Objectives of Biodiversity Protection in Islam

The Islamic principle of mizan, or ecological balance, offers a framework in which to ensure that human activities do not unduly interfere with the natural regeneration of the diverse life forms on earth.⁵⁰ The Qur'an provides that biological resources are created and maintained in due proportion or balance, and humans should strive to maintain that balance: "And the Firmament has He raised high, and He has set up the Balance. In order that you may not transgress [due] balance."⁵¹

The mandated balance requires maintaining the diversity of life forms. Harm must be prevented not only to humans, but also to all other life forms. Within the Islamic tradition, the Great Flood attests to the primordial need to maintain the earth's balance by preserving its various life forms and protecting them from harm, even in times of biblical calamity. Muslims hold that at the onset of the Great Flood, God commanded Noah to preserve the diversity of animal life vulnerable to extinction due to the impending disaster, by taking with him mating pairs of all animals for future regeneration.⁵²

For Muslims, this divine command to Noah established the principle that it is God's will to maintain the order of nature and protect biodiversity from extinction.⁵³ In fact, in modern practice, many Muslim countries have expressly provided that their entire program to protect biological diversity flows from this command. For example, in its national report to the Secretariat of the Convention on Biological Diversity, Iran specifically relies on the Qur'anic narration of the Great Flood to inform its vision and policy on biodiversity protection.⁵⁴

It is through the protection of diversity of various life forms that humans may ensure those life forms the opportunity to be participants in the celebration of God's praises and as embodiments of His craftsmanship.⁵⁵ Because animals, trees, and other organisms are deemed not to be imbued with intelligence, they are in total submission to God; but human beings alone possess intellect and free will and they may choose either to submit or not.⁵⁶ However, unnecessarily depleting the variety and number of organisms by humans, or driving them to the brink of extinction, constitutes willful destruction of entities that emanate God's design. This conclusion follows from a narrative by the Prophet. He stated that one of the previous prophets once sat down under a tree and was bitten by an ant, whereupon he ordered the tree and the ant colony to be burnt. Allah then reproached him, saying: "Have you destroyed a whole community that glorifies Me because of an ant that bit you?"⁵⁷

Quite apart from the divine command to maintain biodiversity and prevent waste (including unnecessary harm to animals and habitat destruction), there are practical, anthropocentric reasons for preserving biodiversity.⁵⁸ Nevertheless, it is through the fundamental principle of mizan that Islam balances human interests with the collective interests of the diverse communities of life forms by eschewing harm to each of the communities in order to maintain the earth's due balance. This has the effect of combining religious obligations (such as the requirement to enjoy God's creations) and practical needs (such as preserving biodiversity and ensuring sustainable use of resources for present and future generations).

C. Islamic Mechanisms for Protecting Biodiversity

Traditional Islamic law, with its comprehensive regulation of peoples' daily lives, sets forth a variety of tools that may [32 ELR 10026] be developed to protect biodiversity and ensure adherence to Islamic principles such as mizan. These tools may help protect ecosystems, species, and even genetic resources. Expanding from the general principles regarding the relationship between God, people, and nature, an Islamic blueprint for protecting biodiversity can be derived from the manner in which Islamic law establishes the proprietorship of natural resources.

Even where a community or an individual holds titular ownership of resources, Islamic law provides that human proprietors do not legally hold the ultimate power to maintain, spare, or destroy those resources. Under Islamic legal theory, the ultimate ownership of resources rests with God. Thus, the Qur'an states that: "To God belong all things in the heavens and on earth."⁵⁹ The power exercised by humans over these resources, although treated by the law as inviolable,⁶⁰ is neither absolute nor unrestricted.⁶¹

Under Islamic law, resources may be broadly classified into public and private, and the status of a particular resource determines the extent of power exercised by its human proprietors. Where resources are considered public—such as water and its resources, air, most subsurface minerals, and undeveloped lands—the individual ownership rights in the resources are highly restricted.⁶² On the other hand, private ownership rights are greater where the resources concerned are more easily characterized as not involving public welfare, such as developed land and its superjacent resources, including domestic livestock, vegetation, trees, and the column of air space required by public welfare.⁶³ Even for the resources in this category, human ownership is not entirely separated from the divine ownership, and a human owner is bound by specific obligations regarding his treatment of the resources, despite the proprietary nature of the owner's right in the resource. Thus, destruction of harmless insects, unnecessary killing of animals, and wasteful felling of trees⁶⁴ contravene the proprietary rights of God, technically characterized as huqu Allah, literally "rights of God,"⁶⁵ even if no right of another person is implicated. Whatever the relationship of a person to a natural resource, he is not the ultimate "owner" in the sense that he does not possess the power to waste or destroy the resource, even though Islam regards property rights of individuals as supreme vis-a-vis other people.⁶⁶

A corollary principle to divine ownership of resources is that the resources are to be utilized for the benefit of the community. In practice, the dual classification of natural resources into public and private means that many resources are owned by the community at large and are to be managed for the benefit of the community. For example, in traditional Islam and in many contemporary Muslim communities around the world, unoccupied lands belong to the community or, in modern terms, the state.⁶⁷ This is also the case with subsurface natural resources, such as oil.⁶⁸ One potential advantage of vesting legal ownership of many natural resources in the state is that apart from sharing the anticipated benefit to the entire community rather than just the wealthy or powerful individuals, the state also possesses the requisite power to regulate and control the use of those resources, as well as address the resultant damage the use may cause.⁶⁹ To date, however, this power has been invoked sparingly to protect the environment.

As discussed, individual proprietary rights are limited to the extent that Islamic law deems it necessary to maintain the public welfare. Thus, where the interest in protecting private property rights conflicts with a defined welfare interest of the public in exercising control over a public resource, the public interest prevails. For example, access to water and maintaining its quality—a clearly identified public interest—will trump the proprietary rights of a landowner on whose land is located a public source of water and his power to adversely affect the water source is strictly constrained.⁷⁰ Similarly, where a site is designated for a specific public purpose that excludes erection of a building, a proprietor who builds a house on the land will have it pulled down and the site cleared.⁷¹ Indeed, highway safety requirements, [32 ELR 10027] a public welfare issue, trump the right of a contiguous landowner to erect a mosque that obstructs traffic, and such mosque will be liable to be demolished. This is "because the contiguous areas of a highway are for easy passage and not for buildings."⁷²

In the context of protecting and ensuring sustainable use of biodiversity, the implication of ranking proprietary rights over natural resources from the divine to the communal and then the individual is that for natural resources other than privately held lands, the interest of the community or state usually is regarded as compelling, and the exercise of any private right over those resources may not be asserted. Policymakers therefore have wide latitude in protecting sensitive ecosystems and ensuring species diversity. For example, governmental authorities may grant individuals living near certain areas the rights of oversight and usufruct that do no conflict with the ecological objectives of the whole community.

Although Islamic law does restrict the natural resources over which individuals could assert proprietary rights, to the extent they exist, Islamic conservation rules are based upon considerations other than resource ownership. These conservation rules could be further developed from the need to conserve and sustain diversity, even for those resources over which individuals can assert property rights vis-a-vis other individuals. In fact, haram, harim, and hima, discussed below, provide specific mechanisms constraining the exercise of property owner's rights over natural resources. Additionally, specific prescriptions governing the killing of animals and plants are relevant to protecting biodiversity and are discussed below.

1. The Haram Mechanism

One mechanism for protecting biodiversity in the Muslim world is haram. In specific regions (designated as haram), no one is permitted to cut any vegetation or trees, even if the trees have thorns, the wild animals and birds in those regions cannot be hunted, and harmless insects and organisms cannot be exterminated.⁷³ There are two designated haram regions in the Muslim world: the whole of Mecca,⁷⁴ and a specified area of Medina,⁷⁵ both of which are in Saudi Arabia.

The Prophet elaborated on the haram rule, which applies to every person that visits or resides in either of the regions. He declared: "It [Mecca] is sacred by virtue of the sanctity conferred on it by God until the day of resurrection. Its thorn trees shall not be cut down, its game shall not be disturbed . . . and its fresh herbage shall not be cut."⁷⁶ He expressly extended this rule to the designated area of Medina.⁷⁷ The emphasis of the haram rule lies in the fact that it is envisaged to provide what the Qur'an refers to as "qiyaman,"⁷⁸ or refuge or asylum for all life. In interpreting the rule, the authoritative Ali Ibn Hajar Al-Asqalani noted that the prohibition of wildlife hunting extends to forbid driving or scaring animals from their chosen areas or natural habitats in both regions.⁷⁹ The no-disturb requirement also applies to smaller insects and other organisms that are not harmful. The only exception is where an animal or insect threatens harm.⁸⁰ Nevertheless, the basic rule is that no flora, fauna, or other organism, may be chased, disturbed, killed, or cut in the haram regions.

The importance attached to harmonious coexistence of various species in the haram regions belies the size or ecological significance of the area. This is a set of beliefs held by faithful Muslims, that the designated areas are sanctuaries for God's creatures, human and non-human alike, and all should interact harmoniously. Due to the importance attached to the absolute nature of conservation of all organisms of the haram regions, Islamic law stipulates enforcement of the haram rules through criminal punishment.⁸¹ Over the years, however, jurists have applied the law to permit the cutting of trees that are planted by humans where there is the need, although the prohibition against cutting in natural woodlands and grass areas remains absolute, as does the prohibition against killing or pursuing wildlife.⁸² Indeed, jurists are unanimous that the leaves or branches of naturally grown, i.e., wild, trees cannot be cut or severed; and the penalty for cutting a large tree is the equivalent of a cow, while cutting the smallest branch incurs a penalty of the equivalent of a lamb.⁸³

Where a particular area contains critical habitat for an endangered species or a particularly high concentration of endemic species, it may be possible to extend the haram rules to the area in question. Moreover, authorities could highlight the critical nature of the area in preserving the diversity of God's creatures and the especial importance of the area in maintaining mizan. By analogy, then, the area could acquire a status that, while not rising to the Qur'anic significance of Mecca or Medina, is nevertheless elevated and worthy of an enhanced level of protection akin to haram within which humans live in harmony with the natural world.⁸⁴ By establishing a protected area in such a manner, Muslim communities might more readily accept and respect the protected areas. There may be significant difficulties, however, in extending [32 ELR 10028] the haram rules to nonreligious sites, particularly after more than a millennium with no additional haram areas.

Another strategy may be to draw upon the wider significance of the haram rule, which is that biodiversity is best protected when human beings try to live in harmony with other organisms. Consequently, those interested in advancing an Islamic approach to biodiversity protection may encourage Muslim communities and individuals to imbibe into their daily lives the haram rule of harmonious coexistence with God's creatures. Civic organizations, religious institutions, schools, and the mass media can be instrumental in building such environmental awareness.

2. The Harim Mechanism

Another mechanism that may be useful in protecting biodiversity in Muslim communities is harim. Harim is an area that borders a natural resource, and the fundamental rule of harim is that this border area must remain undeveloped.⁸⁵ Harim is mainly associated with water areas, but it has also been applied to terrestrial property. As applied to wells for instance, it is the area that abuts all the corners of the well; for a river, the harim is its bank.

While some jurists have set limits for various areas adjoining water resources, most jurists hold that the size of a harim is largely determined by the nature of the resource area it is designed to protect.⁸⁶ Due to its traditional association with water resource, the harim rule may hold the greatest promise as a conservation mechanism in maintaining wetland ecosystems in Muslim countries. Thus, for example, harim may improve implementation of the Ramsar Convention⁸⁷ in Muslim countries by enlisting voluntary compliance by riparian and coastal communities of those countries. Harim may also be useful in protecting recharge zones for groundwater.

3. The Hima Mechanism

Perhaps the most promising Islamic mechanism for protecting biodiversity is hima. Under classical Islamic law, hima—literally meaning "a protected area"—is a flexible concept that connotes virgin land that is preserved for the good of a community.⁸⁸ From the earliest period in Islamic history, hima has been used to meet the collective needs of Muslim communities. The emphasis of hima is preserving natural areas and protecting them from incompatible uses, including development. The first hima was established in Medina by the Prophet Muhammad, and measured one mile by eight miles.⁸⁹ A few years later, Caliph Abu Bakr established another hima and enhanced its management through the appointment of an administrator.⁹⁰ The institution of hima, including the office of its administrator, has since become a well-established apparatus of Islamic governance.⁹¹

Hima is a public institution and, in its strictest sense, only the government of a state, municipality, or locality may establish it, not individuals.⁹² The fact that governments are the primary organs in establishing and managing hima comports with the designation of virgin lands as public. For a hima to be valid, it is essential that the area should be free of privately owned lands and resources such as farmlands, buildings, and trees planted by individuals for their own use.⁹³ It is equally necessary that no one has settled the area and that the land is virgin or undeveloped.⁹⁴ While there is no fixed size for hima, it may not be so large as to encroach upon the means of livelihood of the adjacent community.⁹⁵

Each community is to determine the number and size of its hima, given the purposes sought to be achieved. Such purposes may include conservation, the feeding of animals for charity, or feeding animals of the army.⁹⁶ Indeed, any purpose that is to further the common good of the community is permitted. While a purpose that is exclusively for the interest of the rich is not allowed, taking care of the poor exclusively is a legitimate purpose of a hima.⁹⁷

In contrast with the haram rules, which strictly prohibit human interference with the natural habitat, the hima rules are and depend on the particular purposes for establishing the hima. In most himas, no human activity is permitted, so that hunting, fishing, and cutting of shrubs and trees are not allowed. In other himas, human activities that are compatible with the objective of their establishment are permitted. In a protected forest, for instance, felling of trees and grazing are ordinarily prohibited but hand harvesting of grass frequently is permissible.⁹⁸

The flexibility and widespread use of hima suggest that it has the potential for extensive use in conserving sensitive habitats and for restricting activity in protected areas. The general limitations on size may make it difficult to extend hima to the establishment of large national parks or protected areas encompassing extensive ecosystems, especially where local communities may be displaced or otherwise affected. Nevertheless, hima may prove particularly [32 ELR 10029] useful in according protections to critical habitats such as nesting sites, water sources, and other discrete areas of especial importance to flora and fauna. Furthermore, it may be possible to cobble together a series of hima to provide a patchwork supporting a larger protected area. While less than ideal in situations where specific animals require large areas removed from human occupation, this may provide a first step toward large-scale protected areas under Islam. In fact, the flexibility of hima may permit the development of expansive protected areas. In the meantime, protection for larger areas may require additional scholarship and legal commentary before the full force of hima may be brought to bear.

4. Wildlife Protection

While Islamic law generally vests ownership of wilderness areas in the state, wildlife belongs to every member of the local community until someone captures it. Islamic law encouraging temperance in using natural resources extends to the regulation of wildlife. The general approach to conserving wildlife focuses on preventing waste and avoiding unnecessary harm. Accordingly, Islamic law provides for specific, limited uses for animals (including wildlife) and a strict regulatory regime governing the uses.

Under Islamic law, many benefits may be derived from animals such as nourishment, aesthetics, carriage in warfare, sport, and provision of wool and fur.⁹⁹ Islam protects the welfare of living animals while they are put to these various legitimate uses.¹⁰⁰ In contrast, Islamic law governing wildlife focuses more on regulating the killing of certain animals in order to achieve human and social sustainability. This emphasis helps to ensure that hunting and other activities do not adversely impact species' reproduction and survival, and ultimately, biological diversity.

The sole lawful reason that an animal may be killed under Islamic law is for sustenance, and nothing else justifies its killing.¹⁰¹ For example, the authoritative legal commentator, Sayyid Sabiq, has asserted that

the hunting that is legal is one that is intended for slaughter and eating. Where this is not the case, the hunting becomes illegal. This is because it amounts to mischief and wastage of animals without lawful benefit. And the Prophet has forbidden killing of animals except for the purpose of eating.¹⁰²

This view is followed generally by two of the four schools of Islamic law—the Maliki and Hanbali—which are exceptionally firm in restricting hunting only to meet requirements for nourishment.

The restrictions on killing of animals apply even during emergencies or wars, and animals of the enemy may not be killed wantonly for any reason, as such killing amounts to waste.¹⁰³ The prophetic authorities or hadiths provide a rich source of textual material that may be invoked to protect animals generally and wildlife in particular. For example, the jurist Dr. Yusuf al-Qaradawi has observed that animal rights advocates could deduce from the hadiths an imperative command to respect animals and not to touch them except for a lawful need; ecologists could observe the necessity to preserve living beings and not to cause their extinction; economists could understand the need to protect all resources; and ethicists could realize the comprehensive domain of ecological responsibility established by Islamic law.¹⁰⁴

a. General Bases for Protecting Wildlife

Islamic protection of wildlife relies on the assumption that only killing for sustenance is permitted.¹⁰⁵ If the methods are not complied with, the reason for which the killing is permitted, e.g., eating, becomes invalid. Within this context, then, it may be possible to shape Islamic regulations on killing wildlife (and animals more broadly) in such a way as to ensure genetic diversity. One practical method could be to encourage Muslim communities and individuals to resuscitate the practice of imbibing rules governing wildlife into their daily existence. Since eating the meat of a wild animal is the only justification for killing it, Islamic law may be applied to prevent waste and preserve genetic diversity of wildlife through highlighting the kind of wildlife that may be killed and the allowed mode of killing such wildlife. In certain circumstances, however, more targeted constraints may be necessary, particularly where a wildlife population is threatened with extinction.¹⁰⁶

Islamic law has developed elaborate regulations governing the methods of killing. The Qur'an lays down some basic principles governing the killing of animals and consumption of their meat:

Forbidden to you [for food] are: dead meat (that is not properly slaughtered), blood, the flesh of swine, and that on which hath been invoked the name of other than God; that which hath been killed by strangling, or by a violent blow, or by a headlong fall, or by being gored to death; that which hath been [partly] eaten by a wild animal; unless [32 ELR 10030] you are able to slaughter it [in due form]; and that which is sacrificed on stone [altars].¹⁰⁷

The Qur'anic injunction thus provides that meat may be lawfully eaten only if (1) the animal from which the meat is derived is a lawful source of food, and (2) the killing of the animal is accompanied by a solemn mode of slaughter, invoking the name of God who subjected the animals to humans.

The Prophet, commentators, and the primary texts have expanded and clarified the list of specific animals that cannot be eaten. These include carnivores that possess paws,¹⁰⁸ those that have fangs,¹⁰⁹ and any birds that possess claws.¹¹⁰ Accordingly, jurists have stated that the eating of the meat of the following animals, and therefore their killing, is forbidden: lion, tiger, hyena, wolf, cat, dog, and similar types of animals, as well as birds such as eagles and falcons.¹¹¹ Elephants are also deemed to be in this category, especially by Abu Hanifa of the Hanafi school.¹¹² There also is consensus about the unlawfulness of eating apes and monkeys, arising from an express prohibition by the Prophet.¹¹³

In addition to ensuring that a particular wild animal may be hunted for food, a hunter must also comply with methodological requirements governing capture and slaughter. Except for water-based game, all animals that are permitted to be eaten must be slaughtered by a sharp knife,¹¹⁴ accompanied by a solemn mode, i.e., invoking the name of God by a Muslim, Christian, or a Jew, during the slaughter.¹¹⁵ Indeed, for a hunting expedition to be lawful and the meat that is obtained to be eaten as food, the expedition must seek to capture and slaughter specific animals rather than achieve a mass killing.

Islamic law also imposes limitations on weapons that may be used to kill wildlife. For example, an arrow may be used only where it can penetrate the body of the animal, and the name of God must be mentioned when the arrow is launched.¹¹⁶ A gun is likened to an arrow, and the gun's ammunition must be able to penetrate the body of the animal, killing it without subjecting the animal to unnecessary pain.¹¹⁷

The restrictions on which animals may be killed, for what purposes, and by what methods establish a set of mechanisms by which wildlife may be protected under Islamic law. If developed and implemented in a concerted fashion, these mechanisms more broadly could protect biological diversity. For example, many of the animals traditionally protected by Islam are carnivores and at the top of the food chain. These animals are often "indicator species," highlighting when a particular ecosystem is threatened and biological diversity imperiled.¹¹⁸ The prohibitions on killing these animals provide a potential framework for extending other protections to the animals, e.g., protection of habitat, so that Islamic law prohibits both the direct and indirect killing of these animals. In a similar way, the traditional Islamic prescriptions governing methods for killing and the accepted uses of wildlife may be extended to protect biodiversity by making wildlife more difficult to kill and subject to fewer legitimate uses. Thus, for example, the use of lethal snares and traps—which can kill many nontarget species—could violate the Islamic requirement that God's name be invoked the moment before killing the animal.

One potential limitation in using Islamic law to protect biodiversity is that animals that live in water are exempt from the requirements of both generic classification and methods of killing that apply to terrestrial animals. In fact, the Qur'an states that: "Lawful to you is the pursuit of water-game and its use for food."¹¹⁹ The Prophet explained that, under Islam, the water of rivers, streams, and seas are pure, and that eating their animals, from whatever genre or however they may be killed, is permissible.¹²⁰ Consequently, Islamic law imposes few restrictions on water-based wildlife aside from the general prohibition on waste and the requirement to maintain mizan. As a result of centuries of few protections and improved technology, various species of water-based wildlife have become threatened with extinction,¹²¹ a harm that Islam clearly seeks to prevent. Nevertheless, modern attempts to protect animals living in rivers, lakes, and oceans may encounter resistance from individuals and communities that rely on the traditional practice of unrestricted access to these resources. In light of the competing priorities, modern Islamic jurists face the need to reevaluate the norms (and methods) that have the potential to overexploit water-based animals, threatening their future survival. One starting point might be to reinterpret the permission to consume water-based animals in light of the ultimate and fundamental injunction against waste and in favor of preserving the ecological balance, or mizan.

A recent conservation project for fishing communities in the predominantly Muslim Zanzibar provides a concrete example of how Islamic precepts preventing waste and maintaining mizan can be utilized to protect marine biodiversity. Between Pemba, the northern island comprising Zanzibar, and the mainland, there is a 22-square-kilometer Misali Island Marine Conservation Area (MIMCA), renowned for its coral and as a nesting ground for sea turtles.¹²² The area, [32 ELR 10031] however, has been overfished, and desperate fishermen have taken to dynamiting the coral reefs to retrieve the remaining fish.¹²³ Since the late 1990s, the Islamic Foundation for Ecology and Environmental Sciences (IFEES), CARE International, the World Wide Fund for Nature, and the Alliance of Religions and Conservation have developed an environmental education program based on Islamic principles.¹²⁴ Led by Fazlun Khalid, this project has conducted a series of workshops for local fishermen and officials.¹²⁵ These workshops have highlighted Qur'anic verses on conservation of natural resources with colorful pictures and illustrations, which help to convey the message.¹²⁶ The local religious leaders have been involved as environmental guardians. As a result of these workshops, the fishing practices of the community have changed, with an upward count in the community's fish reserves.¹²⁷ Furthermore, the MIMCA may be designated as a hima,¹²⁸ which would entail additional protections for the fishery, although it may still be used as a sustainable source of fish for the local communities.¹²⁹

The Misali Ethics Project illustrates how powerful an Islamic approach can be in addressing environmental challenges in Muslim communities, even if those communities are in non-Muslim nations (Tanzania). Furthermore, such an approach can be effective even when there is a prevailing practice (overfishing and dynamiting) that relies on an Islamic principle (free access to marine resources) that together could harm biodiversity or other environmental values. Finally, this approach has helped approximately 10,000 villagers on Zanzibar who rely on the fishery to develop new practices that will ensure the stability of the fishery, maintain mizan, and assist the communities in developing sustainably.

b. Specific Bases for Protecting Wildlife

In addition to generally restricting the hunting of wildlife to meet food requirements, Islamic law establishes specific provisions that can protect wildlife. These include provisions that largely implement the general injunction against waste by limiting which animals may be the source of non-food resources, and constraining the use of luxury items, as well as explicitly protecting nursing animals. For example, even in circumstances where wild animals may be killed, Islamic law prohibits excessive killing that could affect the diversity and sustainability of the wildlife population, as such decimation amounts to mischief and injustice.¹³⁰

Although animal furs, skins, and fiber may be used,¹³¹ textual authorities do not set forth precisely which are the acceptable methods for securing the animal products. As a result, it could be argued that Islamic law permits killing animals solely for their furs. That argument is seriously weakened, however, when Islamic law prohibits people from eating the meat from a particular animal in question (such as the tiger, which is included in the list of prohibited animals).¹³² It would appear that Islamic law prohibits the killing of tigers for the sole purpose of obtaining its fur, since its meat would have to be discarded, a waste that violates basic Islamic precepts.

Islamic law does provide an exception for carrion animals that died without being slaughtered. For example, a ruling by the Prophet seeks to prevent the waste of an animal not fit for food when the animal was observed to have died naturally. Since the methodical requirement for its slaughter could not be complied with and the animal could not be eaten, people thought that the entire animal became unlawful and should be discarded altogether. Consistent with the rule against waste, however, the Prophet encouraged them to use the hide for other purposes, noting: "Only eating it [the meat] is prohibited."¹³³

Thus, the bone, horn, nail, hair, feather, skin, and other similar components of a carrion animal may be put to uses other than eating.¹³⁴ Indeed, it is reported that in the early period of Islam, people used combs made of the bones of dead elephants, which could not be eaten.¹³⁵ Although Muslims could not kill prohibited wildlife for such secondary uses, Islamic law permits people to reap secondary benefits—such as the elephant-bone combs—in order to avoid wasting dead animals that would otherwise be unutilized.

Islamic law rejects uses that amount to excessive luxury rather than those that meet an identified function or need.¹³⁶ In practice, then, Islamic law makes it difficult to establish a justifiable need for killing non-edible wildlife, particularly where other alternatives abound that do not require animals to be killed. Since eating is the only justification for killing animals, use of fur or any other side benefit, is only permissible when it is derived from animals whose meat may be eaten after being killed, or otherwise from any other animal that dies naturally. In both instances, the overriding concern is preventing waste. Killing wild animals to use only some of their parts, such as their hide, and discarding the meat is a waste that the law seeks to prevent.

In a measure that helps to ensure the survival of wildlife populations, Islamic law also provides that wild animals that are nursing should not be killed:

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We were travelling with the Prophet when he left [us for a while]. We saw a bird with its two chicks and we took the chicks. [The mother] started spreading its wings [in protest]. When the Prophet came [and saw what happened] he said: "Who caused her to become bereaved [by taking away] her two children? Return her two children to her!"¹³⁷

This Islamic principle could serve as a basis for a more expansive regulatory system that provides specific protections for pregnant, nursing, and immature wildlife, as well as broader protections for habitat that serves as nesting grounds.

In a few instances, Islamic law has already established protected lists for animals. These include the list of animals whose meat may not be eaten,¹³⁸ as well as specific genre of animals that may not be killed for any reason. For example, the Prophet prohibited the killing of the ant, the bee, the hoopoe, and the sparrow-hawk,¹³⁹ as well as frogs.¹⁴⁰ Since these protections are from primary texts, it would be difficult to expand the list of protected animals to encompass those threatened with extinction, such as the International Union for the Conservation of Nature and Natural Resources' (IUCN's) Red List.¹⁴¹ In the broader sense, though, the practice of listing protected animals may make it easier to gain respect from Muslim individuals and communities for contemporary lists of animals requiring protection, particularly where the list is based explicitly on Islamic principles. Thus, lists of endangered, threatened, and vulnerable species may be developed and characterized as based on the need to maintain mizan by maintaining the balance of the biological members of God's creation.

5. Plant Protection

While Islamic law extends many protections to animals, it also protects plants and in particular trees. Islam encourages planting of trees, and those that have been planted should not be cut even during emergencies. Reflecting the practice of the Prophet, Bakr ordered Yazid ibn Sufyan, the commander of the army that went north to Sham (historically, Great Syria) in the mid-7th century, to limit the damage to civilians, the environment, and other noncombatants, in modern terminology, "collateral damage"; "Do not kill a woman, nor a child, nor an old man; do not cut down fruitful trees; do not destroy [land or housing] in use; do not kill a goat or a camel unless for food; do not flood palm trees [with water] nor burn them down . . . ."¹⁴² The injunction against cutting down fruit trees in wartime has its roots in the Old Testament, and attests to the critical importance of this resource in the Middle East and northern Africa.¹⁴³

Islamic law recognizes that planting trees may benefit both humans and animals, and the Prophet encouraged Muslims to plant trees as an act of charity.¹⁴⁴ The Prophet noted that severe punishment is reserved for those who harm desert trees, since they provide shade and fruit for people and wildlife: "Whoever cuts a (desert) tree [without justification] God will immerse his head in Hellfire."¹⁴⁵

The date palm tree plays a special role in Muslim cultures as a result of the Prophetic tradition that "there is a tree among the trees which is similar to a Muslim [in goodness], and that is the date palm tree."¹⁴⁶ Consequently, the date palm tree receives significant care and attention in the Muslim world.

In comparison to the numerous textual protections for trees, there are relatively few protections for non-arboreal plants. However, plants constitute the base of the ecological food chain, and their careful management is necessary to ensure the future of the animals that feed on the plants, as well as the general web of life for the ecosystem. In many instances, plants and animals have evolved together, so that certain animals will eat only certain plants and some plants depend on animals to fertilize, process, and disperse its seeds.¹⁴⁷ Considering the intimate linkages between animals and plants, specific protections for animals may necessarily require comparable protections for the plants on which they depend for food, cover, and habitat.

Ultimately, the dearth of direct protections for plants means Islamic scholars and environmental professionals will need to develop novel and creative means for extending general principles to protect plants. The requirement to maintain mizan—as well as the related prescriptions against unnecessary harm and waste—may be the most appropriate and most powerful Islamic principle that can be brought to bear in protecting plants. Accordingly, it may be possible to develop regulatory norms and institutions that are premised on the interconnectedness of all the elements of God's creation and seek to maintain this balance. Thus, actions that threaten plants with extinction—such as habitat destruction or alteration and the introduction of non-native invasive species—would be prohibited. Finally, himas may be established for areas with high rates of endemism, where there are species of plants found nowhere else in the world.

III. Standards for Determining Legitimate Use of Biodiversity Resources

The various general and specific conservation rules found in Islamic law point toward sustainable use of biodiversity or, [32 ELR 10033] in Qur'anic terminology, mizan (maintaining the earth's balance).¹⁴⁸ Maintaining due balance essentially involves avoiding waste and undue harm. This section seeks to derive guidelines as to what constitutes waste and undue harm under Islamic law.

A. Measure of Waste

While Islamic law subjects available natural resources to human use, excessive use may render an otherwise legitimate usage illegal. Ahmad Ibn Taymiyyah succinctly noted how the law treated particular conduct differently, depending on the specific circumstances attending the conduct, when he observed that hunting out of necessity is permitted, but if hunting is for sport, it is detested, and if it causes injustice, it is prohibited.¹⁴⁹ Hunting that threatens a biological resource with potential extinction creates violence to God's creations and is thus a clear injustice which is prohibited. The ruling by Ibn Taymiyyah is derived from the general prohibition in the Qur'an against waste: "So eat and drink, but waste not by indulging in excess; for God loveth not the wasters."¹⁵⁰

Two factors are relevant in determining whether an action is wasteful: the quantity that is used and the appropriateness of such use.¹⁵¹ Whether a level of resource use is excessive (and thus wasteful) depends on how it compares to a reasonable level of exploitation for the use in question, and a reasonable level depends on both the general posture of Islam in favor of preventing waste and the customary levels of exploitation associated with the use in question.¹⁵²

This calculus, requiring frugal use of natural resources, extends to all aspects of Muslim life. In an encounter with Sa'd, the Prophet stressed the value of being frugal in utilizing resources even while engaged in the most deserving of uses. Sa'd was washing for prayer by a river when the Prophet observed that Sa'd was using an excessive amount of water. "'What is this wastage, O Sa'd?'" he said. Sa'd replied, 'Is there wastage even in washing for prayer?' The Prophet replied: 'Yes, even if you are by a flowing river!'"¹⁵³ Thus, Islamic law provides that an appropriate use may justify a certain level of resource exploitation, but that level is limited by custom; and uses in excess of that are not justified.

In addition to the level of resource use, the propriety of the use is also relevant in determining whether the use is wasteful. Where a small quantity is used in an undeserving manner, it amounts to waste. Thus, jurists have interpreted the Qur'anic injunction "but squander not [your wealth] in the manner of a spendthrift"¹⁵⁴ to mean that there is waste where one uses a resource, regardless of the amount used, in a manner that Islamic law deems unwarranted.¹⁵⁵ For instance, killing a single wild animal—even where the animal is not endangered—for a non-food purpose is wasteful just as killing more than is required for one's livelihood.

As can be seen from these examples, the Islamic measure of waste is based on general principles. It has developed through specific applications, but it remains highly contextual. What was not wasteful at one point in time may become wasteful as needs are met and technologies develop (for example, through the development of energy or water-efficient machinery). Nevertheless, the irreducible core criteria remain that for an action to not be wasteful it must be both (1) for a legitimate use, and (2) entail no more than a reasonable level of resource consumption.

B. Prevention of (Undue) Harm

The second fundamental principle underpinning Islamic protections of biodiversity is prevention of harm. This principle is particularly relevant as a criterion for determining an appropriate level of resource utilization and what constitutes waste. Since some impact is usually entailed in any action—even if it is infinitesimal—in practice, the principle becomes one of preventing undue harm, minimizing harm, or no net harm. Nevertheless, the emphasis that Islam places on actually preventing harm merits broader discussion of harm prevention, rather than minimization.

Harm prevention is a broadly applicable principle under Islamic law which seeks to preclude infliction of injury or detriment unsupported by law. It is a fundamental legal standard that governs most interpersonal affairs, including contracts, torts, and property rights. The principle of harm prevention limits the exercise of otherwise legally enforceable rights where enforcement in a particular context would inflict unacceptable harm.

The Prophet laid down the principle of harm prevention—"Do not harm and do not be harmed"—which has since become a legal maxim and Islamic jurists have employed as a standard of conduct.¹⁵⁶ The no-harm rule is such a fundamental and overarching principle in Islamic law that when there is a conflict with other principles, the no-harm rule modifies the other concepts to the extent that there is an inconsistency.

The principle of harm prevention has generated a number of Islamic legal maxims, including the rule that "repelling an evil is preferable to securing a benefit."¹⁵⁷ Accordingly, the law sanctioned the demolition of a mosque that had been erected illegally within an area contiguous to a highway so that it obstructed traffic.¹⁵⁸

Unlike in a liberal society, where the public interest does not easily abridge the welfare of an individual, Islamic law is more communitarian.¹⁵⁹ Although an unjust ruler may take advantage of the communitarian posture of Islamic law, it has a potential benefit in the context of biodiversity by sidestepping the difficulties in resolving the inherent conflict of determining the locus of harm (and benefit) for different [32 ELR 10034] individual interests. Instead, Islam determines the scope or location of harm with reference to the society at large and not the individual with whom a specific right may reside. Thus, exercise of a right that inflicts an overall harm on society is liable to be abridged, even to the extent of preventing that harm.¹⁶⁰

The context of biodiversity protection concerns not only humans, but also other species. Consequently, the "community" is defined more broadly, and the locus of harm within a givencommunity is enlarged beyond the immediate concern of the local human community.¹⁶¹ Accordingly, two circumstances arise in analyzing the no-harm standard. The first instance is where harm to other humans or animals will result from the exercise of a legitimate power or right by humans. The no-harm standard would require that the lawfulness of the exercise of that right ceases when biological species or communities are threatened with the harm. In that circumstance, the exercise of such right needs to be regulated to prevent the harm. The result will still be the same even if no harm is envisaged to the human community.

As a brief aside, this example illustrates some of the limits of the no-harm rule. For example, Islamic law permits killing an animal or plant for a legitimate purpose (namely food or self-defense). Such a killing inflicts harm on the individual animal or plant, but Islamic law acknowledges this harm and seeks to limit it by specifying which animals may be killed and expressly providing that sharp objects must be used in the slaughter in order to minimize the pain and suffering of the animals.¹⁶² The operative question is whether there is harm to the broader species or community.

The no-harm rule, then, entails a number of line-drawing exercises that are not always simple. For instance, although hunting wildlife for food is permissible, insistence on exercising that right in modern times—with growing population pressures, demand for food, and sophisticated hunting technology—could lead to extinction for a number of species. As noted earlier, such an action would violate the principle of maintaining mizan, and would constitute unacceptable harm.¹⁶³ The Islamic cost-benefit analysis for hunting wildlife, with its strong bias against harm (costs), is also affected by alternative sources of food presented by livestock. It follows that the generic and methodic requirements for hunting wildlife, even for the purpose of sustenance, may need to be restricted further in contemporary Muslim communities. Ibn Taymiyyah's ruling on hunting supports such a dynamic view of hunting restrictions.¹⁶⁴

The second notable set of circumstances worth considering here occurs when an animal threatens or harms people. In this case, the no-harm rule will preclude application of the prohibition against killing of wildlife for purposes other than food. Accordingly, the harm prevention rule will permit killing an animal or organism that poses a danger to humans. Islamic law even permits the killing of certain animals deemed harmful even in the haram regions, areas in which killing of any organism or cutting of any flora is strictly prohibited.¹⁶⁵ In particular, the Prophet allowed that: "Five creatures, all harmful, can be killed in the haram: the crow, the kite, the scorpion, the mouse, and the dog that bites [people without provocation]."¹⁶⁶ Even these permitted killings, however, may not extend beyond the level necessary to eliminate the harm. Excessive killing would cause undue harm, as well as waste, and be unlawful. The allegory of the sage and the ants, provided by the Prophet, illustrates this requirement of proportionality.¹⁶⁷ Therefore, the no-harm standard only permits displacing or, if need be, killing the threatening creature, rather than the whole community of creatures or its habitat.

As with the principles of waste, the no-harm rule is a broad principle. It has been used legislatively to determine appropriate rules, as well as a rule of interpretation for adjudication. This rule is particularly relevant in protecting biodiversity, as it has been applied to animals in the past and is particularly susceptible to including animals, plants, and other organisms in the consideration of whether an action is likely to yield an overall benefit or harm to the broad ecological community.

IV. Options for Protecting Biological Diversity

Throughout this Article, we have highlighted methods in which the particular Islamic precepts and institutions may be applied and expanded to address threats to biological diversity in Muslim communities. A basic dichotomy that has been observed is the possibility of developing formal and informal mechanisms, at both the national and local levels, for implementing Islamic principles to protect biodiversity.

It is important that both formal and informal initiatives use terminology that is familiar or known in Islam. For example, a law could appoint the jurists as muhtasibs (traditional environment and public health enforcers), refer to reserved areas as himas, and designate wetland areas as harims, thereby encouraging local compliance with the Ramsar Convention.

A. Formal Legal Developments

Many of the options advanced in this Article rely on a traditional method of codifying Islamic concepts and principles into definable laws. In most instances, the options represent developments of traditional Islamic principles, norms, practices, and institutions. In developing these principles, Islamic scholars and decisionmakers may consider the experiences from other, non-Islamic jurisdictions for possible experiences that could inform the development of Islamic [32 ELR 10035] biodiversity law. For example, formal laws could be developed that draw from the haram and hima mechanisms to regulate hunting of wildlife that would otherwise be permitted to be hunted and killed, and to prevent bush burning and commercial logging in certain designated natural areas.

Formal Islamic legislation on biodiversity is likely to rely on basic Islamic norms of preventing harm and waste as foundation principles from which the specific rules and judicial interpretation flow. This posture could dramatically modify—and may displace—a narrow cost-benefit approach to environmental regulation which Islamic nations are being urged to adopt.

Once a law formally declares both principles (preventing harm and waste) to be the fundamental environmental standards which overrides other contrary rules, a government agency may more easily regulate local and foreign industries that produce ozone-depleting substances, greenhouse gases, persistent organic pollutants, and other chemicals with potentially global impacts. Formally enshrining these principles as the foundation of environmental management also opens up regulatory options to urge voluntary compliance (through incentives) or to compel compliance through legal sanctions.

The principles can provide the necessary justification for a government to refuse a permit, or empower individuals to prevent a governmental agency from embarking on a project, whose overall harm to the broad ecological community exceeds its economic benefits. In this context, the harm prevention rule assumes a particularly significant dimension, since most Muslim communities are in developing countries, and these principles can mitigate the overwhelming priority that "development" frequently plays in decision-making processes.

Finally, the principles of no-harm and preventing waste may extend beyond protection of biological diversity to limit the unsustainable use of resources such as water and energy.

B. Informal Initiatives

In many instances, informal initiatives may be more effective than formal legal developments. These initiatives can promote Islamic conservation principles through traditional Islamic institutions, by facilitating environmental rulings from respected Islamic jurists, and by encouraging voluntary actions to protect biodiversity.

1. Working With Traditional Islamic Institutions

Legislation or conservation efforts could also incorporate traditional Islamic institutions that already exist in Muslim communities. In this context, the local Islamic schools (madrasas), mosques, and Islamic mass media programs may assume specific roles in facilitating the development and implementation of measures to conserve biodiversity at the local level. These institutions can be particularly important in educating jurists and teachers on issues of biodiversity, for example highlighting the disappearance of particular animals and pollution of natural areas, watercourses, and air, which all violate provisions of Islamic texts. An environmental agency could act as a coordinator and liaise with these institutions to help identify problem areas, and target the jurists and teachers as the primary audience who can then disseminate the ideas.

In many instances, local jurists and teachers do not know that God and the Prophet Muhammad mandate particular environmental behavior. Although they may be devout Muslims, they frequently do not have the broader environmental expertise to understand the full ramifications of their actions or the critical nature of the environmental provisions of Islamic law. Education and capacity-building exercises such as that in the Misali Ethics Project illustrates some of the significant potential of this approach.¹⁶⁸

2. Environmental Fatwas

Environmental agencies and Islamic scholars can define pressing environmental issues as well as possible Islamic bases for resolving them, with the hope of eliciting fatwas or religious rulings from respected jurists. For instance, a government agency could highlight the decline in megafauna and pose the question: is it permissible for a Muslim to buy and use furs and items made of elephant tusks or other animals, if he does not know whether the source of the items complied with the Hadith requiring that the animals die naturally?

3. Advancing Voluntary Compliance

Islamic law comprehensively governs the daily lives of Muslim individuals and the operation of Muslim communities. The law simultaneously weaves together the material and the spiritual, embracing all organisms on earth. Numerous Muslims comply with Islamic law partly to maintain order in the society, partly to be part of the comprehensive order of nature, but mostly to fulfill the divine requirement of complying with the will of God. In this context, voluntary compliance by faithful Muslims can be a powerful tool to preserve biological diversity, as highlighting and developing Islamic principles protective of biodiversity can be sufficient for many Muslims.¹⁶⁹

As a preliminary step to facilitate voluntary compliance, governmental agencies, universities, and environmental organizations could identify and translate select Qur'anic verses and sayings of the Prophet that bear on the environment, briefly explaining its contemporary significance to protecting biodiversity. The materials could then be disseminated to scholars, mosques, and schools.

Environmental laws and agencies can offer various incentives to communities that voluntarily comply or improve compliance with Islamic laws protecting biodiversity. These incentives could be monetary or nonmonetary, such as public recognition or in-kind assistance. For example, an agency could appoint jurists each year to determine and announce which municipalities or counties have been the most efficient in using water and energy, minimizing waste, and limiting fishing and hunting rates. They could be recognized, perhaps, by a medal of recognizing Islamic environmental excellence.

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Afforestation—planting or replanting trees—provides another area in which to encourage voluntary actions to protect and promote biodiversity. Hadiths encourage afforestation.¹⁷⁰ Government agencies and other actors could promote public awareness of these provisions, encouraging citizens to plant trees and other greenery.

C. Challenges

In addition to various formal and informal opportunities to protect biodiversity, Islamic law presents some normative challenges to protecting biodiversity. For example, as noted above, Islamic law traditionally provides free access to marine resources and does not restrict means for hunting or fishing water-based animals. In the contemporary context of population pressures, poverty, a priority on development, and improved technology, this free access could have a severe impact on marine resources. Under these circumstances, environmental advocates may be able to marshal scientific evidence and invoke general Islamic principles (including the no-harm principle) to establish and enforce restrictions on harvesting marine resources.

Religious sacrifices and ceremonies present another challenge. As a practical matter, it is nearly impossible to prevent or otherwise regulate religious sacrifices. The law can, however, encourage the charitable giving of sacrifices, so that during Eid Adha—the celebration of sacrificing lambs—the poor would not need to buy meat and the abattoir would not need to slaughter for the period. This used to be the case,¹⁷¹ and people could be encouraged to resume this less damaging practice and give more as sacrificial offerings. In fact, such a conversion of practice may be facilitated with the realization that the act of giving is the primary purpose of the sacrifice, not consumption by the person offering it.

Another problematic situation arises when endangered species are harmed by traditional rituals. For example, one of the primary threats to the critically endangered black and white rhinoceros in Africa is the demand for its horn to be used for handles of ceremonial daggers (jambiyas) in Yemen.¹⁷² Demand for rhino horn has continued largely unabated notwithstanding the critically endangered status of rhinos, a Yemeni ban on the import of rhino horn, and available alternatives.

There is a risk in relying solely on the broad body of Islamic principles, as different schools of thought may emphasize different provisions. The flexibility of some principles can also lead to radically divergent interpretations. For example, the Taliban in Afghanistan interpreted Islamic provisions prohibiting idols to mandate the destruction of pre-Islamic (largely Buddhist) statues in spring 2001, including two of the largest statues of Buddha in the world.¹⁷³ This action engendered a vociferous debate, as some Muslims applauded the action,¹⁷⁴ while many others condemned the decree as inconsistent with other Islamic principles such as respect for other faiths as well as preservation of historical and cultural artifacts.¹⁷⁵ Both sides of the debate emphasize different principles and highlight different facts to establish the context in which to apply Islamic law and determine which principles are most relevant.

A similarly polarized debate could erupt over the use of natural resources.¹⁷⁶ For example, in arid and desert regions, water is critical to the survival of people and biodiversity alike. In an attempt to develop and to meet the needs of all people, some Muslim communities may seek to use the available water more fully, notwithstanding possible impacts of the degradation of water quality and quantity on wildlife. In such a case, different schools of thought could look to different provisions in the Qur'an (those promoting human and social development versus those maintaining ecological balance).

How biodiversity and other environmental values will stand up under Islamic law when confronted by other, apparently competing Islamic values will depend to a large extent on how well Muslim jurists have developed environmental aspects of Islamic law. Such development would not only establish the importance of environmental principles under Islam, but also determine their scope and how they interact with other principles. Consequently, the more jurists develop environmental principles, the more likely it is that [32 ELR 10037] potential conflicts will be resolved in a way that preserves ecological integrity.

Conclusion

Although Muslim nations are in many cases just starting to develop comprehensive environmental laws, including those that address biological diversity, they have a core of principles that can be indispensable in developing and implementing specific environmental norms. This Article has outlined the Islamic foundation for protecting biological diversity and has examined particular mechanisms in detail.

In many instances, it may be possible to look to these Islamic principles (particularly the requirements for maintaining mizan, preventing waste, and minimizing harm) as the foundation for environmental protections. Where environmental problems have spilled across international borders or there has been excessive depredation of biodiversity, it may be necessary to consider some non-Islamic mechanisms to restore the ecological balance. In these instances, finding common ground between the non-Islamic mechanisms and Islamic principles may lead to better implementation of the ultimate decision in Muslim societies.

To meet the domestic and international environmental issues, contemporary Muslim scholars, policymakers, and advocates will need to develop creative solutions. Islamic law provides parameters that can be developed to protect biodiversity in Muslim communities. The challenge is to more fully develop these principles to restore the ecological balance in Muslim communities.

1. See, e.g., Ali Ahmad, Islam and Modern Transformation of Environmental Thoughts, 2 AM. MUSLIM Q. 129 (1998) (discussing the variance between the theory and practice of Islamic environmental ethics in Muslim communities); Mawil I. Dien, Islam and the Environment: Theory and Practice, 1 J. BELIEFS & VALUES 47 (1997) (considering the effects of industrialization on the natural environment in the Middle East).

2. UNITED NATIONS DEVELOPMENT PROGRAM, WORLD RESOURCES 2000-2001: PEOPLE AND ECOSYSTEMS—THE FRAYING WEB OF LIFE 252-53 (2000).

3. Id.

4. UNITED NATIONS ENVIRONMENT PROGRAM, GLOBAL ENVIRONMENT OUTLOOK 2000, at 58 (1999).

5. Id. at 58-59.

6. Id. at 59.

7. See International Union for the Conservation of Nature and Natural Resources (IUCN), 2000 IUCN Red List of Threatened Species, at http://www.redlist.org (last visited June 21, 2001) (listing the pygmy hippopotamus as vulnerable in Nigeria).

8. See, e.g., ISLAM AND ECOLOGY (Azim Nanji et al. eds., forthcoming 2001); Richard Foltz, Is There an Islamic Environmentalism?, 22 ENVTL. ETHICS 63 (2000); MAWIL I. DIEN, THE ENVIRONMENTAL DIMENSIONS OF ISLAM (2000); Nawal H. Ammar, An Islamic Response to the Manifest Ecological Crisis: Issues of Justice, in VISIONS OF A NEW EARTH: RELIGIOUS PERSPECTIVES ON POPULATION, CONSUMPTION, AND ECOLOGY 131-46 (Harold Coward & Daniel C. Maguire eds., 2000); ISLAM AND THE ENVIRONMENT (Harfiyah A. Haleem ed., 1999); ISLAM AND ECOLOGY (Fazlun M. Khalid & Joanne O'Brien eds., 2d ed. 1997); ISLAM AND THE ENVIRONMENT (A.E. Agwan ed., 1997); AKHTARUDDIN AHMAD, ISLAM AND THE ENVIRONMENTAL CRISIS (1997); AKHTAR K. BHATTI & GUL-E-JANNAT, THE HOLY QURAN ON ENVIRONMENT (1995); Nawal H. Ammar, Islam and the Environment: A Legalistic and Textual View, in POPULATION, CONSUMPTION, AND THE ENVIRONMENT: RELIGIOUS AND SECULAR RESPONSES 67 (Harold Coward ed., 1995); Lisa Wersal, Islam and Environmental Ethics: Tradition Responds to Contemporary Challenges, 30 ZYGON 451-59 (1995); James L. Wescoat Jr., The "Right of Thirst" for Animals in Islamic Law: A Comparative Approach, 13 ENV'T & PLAN. DIG.: SOC'Y & SPACE 637 (1995); ABUBAKR A. BAGADER ET AL., ENVIRONMENTAL PROTECTION IN ISLAM (2d ed. 1994); Seyyed H. Nassr, Islam and the Environmental Crisis, in SPIRIT AND NATURE 83-108 (Steven C. Rockefeller & John C. Elder eds., 1992); AL HAFIZ B.A. MASRI, ANIMALS IN ISLAM (1989); Iqtidar H. Zaidi, On the Ethics of Man's Interaction With the Envirnment: An Islamic Approach, 3 ENVTL. ETHICS 35 (1981); Philip J. Steward, Islamic Law as a Factor in Grazing Management: The Pilgrimage Sacrifice, in PROCEEDINGS OF THE FIRST INTERNATIONAL RANGELAND CONGRESS 119-20 (1978).

9. These concepts include ijma'a (discussed infra at notes 23-24 and accompanying text), maslaha (a broadly conceived notion of equity that could form a basis for an international system), and shura (an institutional empowerment of the people in matters of governance). On maslaha and ijma'a, see generally ALI AHMAD, A COSMOPOLITAN ORIENTATION OF INTERNATIONAL ENVIRONMENTAL LAWMAKING: AN ISLAMIC LAW GENRE (forthcoming 2001). On shura, see Azizah Y. Al-Hibri, Islamic and American Constitutional Law: Borrowing Possibilities or a History of Borrowing?, 1 U. PA. J. CONST. L. 492, 504 (1999).

10. Al-Hibri, supra note 9, at 527.

11. See generally Frank A. Salamone, The Clash Between Indigenous, Islamic, Colonial, and Post-Colonial Law in Nigeria, 21 J. LEGAL PLURALISM 15 (1983) (analyzing the effects of colonization on the substance and practice of Islamic law in Nigeria); ASAF A.A. FYZEE, THE REFORM OF MUSLIM PERSONAL LAW IN INDIA (1971) (stating that Islamic law in India is constituted by medieval Islamic law as modified by English common law and equity, as well as social and cultural conditions of India). Prof. Donald Horowitz shows the influence of common-law methods on legal reasoning and on the reshaping of Islamic legal process, considering Malaysia as an example, and makes a case for legal acculturation, a process by which the norms of one system infuse those of another, without necessarily undermining the latter's authenticity. Donald L. Horowitz, The Qur'an and the Common Law: Islamic Law Reform and the Theory of Legal Change, 42 AM. J. COMP. L. 543, 567 (1994).

12. See generally MOHAMMED H. KAMALI, PRINCIPLES OF ISLAMIC JURISPRUDENCE (1991); ABU FAZL, SAYINGS OF THE PROPHET MUHAMMAD (1980).

13. "Law" in the sense recognized by a Western world lawyer is only a part of the totality of the set of obligations that a Muslim individual owes under God's command. Little distinction is made between the moral and the legal and to him, "the whole of the Qur'an is law in the Islamic sense of law." Ian Edge, Introduction, in ISLAMIC LAW AND LEGAL THEORY xvi (Ian Edge ed., 1996).

14. This distinction is clear from Qur'an 43:1-4. Unless otherwise noted, all Qur'anic citations and quotations in this Article are from THE GLORIOUS QUR'AN: TRANSLATION AND COMMENTARY (Abdullah Y. Ali trans., 1975). The square-bracketed text in the quoted Qur'anic passages has been inserted by the translator.

15. KEMAL A. FARUKI, ISLAMIC JURISPRUDENCE 30 (1962). The history of classical Islamic jurisprudence shows how early jurists strove to meet the challenges of their generations and provinces. Scholars often traveled to various provinces with different social settings and in light of shared experiences developed new dimensions to the process of exposition of the law. This resulted in the appearance of what later came to be known as schools of law, four of which now remain. These are the Hanafi, the Maliki, the Shafi'i, and the Hanbali schools. CHRISTOPHER G. WEERAMANTRY, ISLAMIC JURISPRUDENCE: AN INTERNATIONAL PERSPECTIVE 47 (1988). The underlying difference among the schools is the prominence that each of them gives to either the text or reasoning in legal deduction. If differences in the classical substantive rules of the four schools survive to this day, new rulings of modern jurists have ceased to be subjected to, and limited by, school affiliations. It may be that the technological connectivity of the globe has contributed to relinquishing rigid attachment to a particular school of legal thought.

16. These values include protection of religion, life, intellect, procreation, and property. KAMALI, supra note 12, at 271-75.

17. S. WAQAR A. HUSAINI, ISLAMIC ENVIRONMENTAL SYSTEMS ENGINEERING 80 (1980).

18. JOSEPH SCHACHT, AN INTRODUCTION TO ISLAMIC LAW 1 (1991) (noting the comprehensive nature of Islamic law, including how it prescribes the behavioral path for all Muslims to take in their lives, including prayers, rituals, family life, politics, ethics, hygiene, and courtesy).

19. WEERAMANTRY, supra note 15, at 85 (observing that the Qur'an occupies such an important position in the lives of Muslims that many memorize it in its entirety, along with its principal interpretations developed over the centuries).

20. As mentioned, all concepts must be related back to the Qur'an. In this respect, the Qur'an in many verses encourages Muslims to endeavor to emulate the Prophet's practices and conducts such that those conducts constitute a distinct source of law. This is because Muslims hold that the Prophet presented a model pattern of behavior. See Qur'an 4:80 ("He who obeys the Apostle, obeys God.").

21. The first generation of Islamic scholars expended much intellectual energy in developing a methodology for the authentication of prophetic traditions, which were unwritten for fear of mixing them with the text of the Qur'an. The effort resulted into a set of six generally accepted books, with a hierarchy of authority. See M.A. RA'UF, AL-HADITH 23 (1974). Citations in this Article for prophetic traditions are confined to these authenticated six.

22. See FARUKI, supra note 15, at 26.

23. WEERAMANTRY, supra note 15, at 39 (noting that the authority for ijma'a as a source of law is generally traced to a provision in the Sunnah which states: "My nation will not agree in error.").

24. FARUKI, supra note 15, at 70-71 (describing the practice of ijma'a in the early history of Islam as retrospective: jurists would differ on a matter, then the differences would narrow down and subsequently disappear, and it would then be realized that a consensus had emerged).

25. Id. at 63, 140; M.I. AL-SHAFI'I, ISLAMIC JURISPRUDENCE: SHAFI'I'S RISALA 288 (M. Khadduri trans., 1961).

26. FARUKI, supra note 15, at 25.

27. Id. at 66-67.

28. Id. at 26.

29. Joseph Schacht, The Schools of Law and Later Developments of Jurisprudence, in LAW IN THE MIDDLE EAST 57, 69 (Majid Khadduri & Herbert J. Liebesny eds., 1955)); see also Horowitz, supra note 11, at 233, 258.

30. Elizabeth Mayer, The Shari'ah: A Methodology or a Body of Substantive Rules?, in ISLAMIC LAW AND JURISPRUDENCE 177, 197 (Nicholas Heer ed., 1990) (arguing that this codification displaces the vibrancy of juristic deduction and consequently the distinguishing method of Islamic law).

31. F.M. Goadby, The Moslem Law of Civil Delict as Illustrated by the Mejelle, 21 J. COMP. LEGIS. & INT'L L. 62, 62 (1939).

32. See, e.g., EGYPT CONST. pt. 1, art. 2 ("Islamic jurisprudence is the principal source of legislation."); Clark Benner Lombardi, Islamic Law as a Source of Constitutional Law in Egypt: The Constitutionalization of the Sharia in a Modern Arab State, 37 COLUM. J. TRANSNAT'L L. 81 (1998). In Nigeria, the constitution provides for the application of Islamic law of personal status and established Islamic law courts, and some states have expanded the meaning of that phrase and other constitutional provisions to widen the scope of the application of the law. See NIG. CONST. §§ 260-264. See also SUDAN CONST. pt. 1, § 4 ("Islamic Shari'ah and custom shall be the main source of legislation.").

33. See Neil Strassman, Cutting Forests Means Fewer Species, Scientist Says in Fort Worth, (FORT WORTH) STAR-TELEGRAM, Nov. 9, 2000, available at http://star-telegram.com/news/doc/1047/1:METRO53/1:METRO531109.html (last visited June 21, 2000).

34. See Qur'an 7:54 ("Surely, His is the Creation and Commandment.") (as translated in THE NOBLE QUR'AN (Muhammad T. Al-Hilali & Muhammad M. Khan trans., 1996)); see also id. at 55:3-5 ("He has created man: He has taught him speech [and intelligence]. The sun and the moon follow courses [exactly] computed."); id. at 55:10-12 ("It is He who has spread out the earth for [His] creatures: therein is fruit and date-palms, producing spathes [enclosing dates]; also corn, with [its] leaves and stalk for fodder, and sweet-smelling plants."). Islamic law and tradition treat biodiversity as part of a broad picture of God's creation. In many places, the Qur'an treats human beings as part of the same process of creation as other organisms, and frequently all are juxtaposed in its references to nature. E.g., id. at 35:28 ("And so amongst men and crawling creatures and cattle, are they of various colours."); see also id. at 11:6, 22:18.

35. Muslim Ibn Al-Hajjah, Sahih Muslim, in AL-KUTUB AL-SITTAH § 5059 (Saleh A. Al-Sheik ed., 2000).

36. Under Islam, the diversity of God's creatures encompasses human beings with their different races, colors, or tongues (see Qur'an 35:28), but this Article focuses on the welfare of diverse non-human creatures, i.e., biodiversity. The Qur'an alludes to the diversity and unity of biodiversity:

And in the earth are tracts [diverse though] neighboring, and gardens of vines and fields sown with corn, and palm trees—growing out of single roots or otherwise: watered with the same water, yet some of them We make more excellent than others to eat. Behold, verily in these things there are signs for those who understand!

Id. at 13:4. In a separate passage, the Qur'an expands on the wonders of natural diversity:

Seest thou not that God sends down rain from the sky? With it We then bring out produce of various colours. And in the mountains are tracts white and red, of various shades of colour, and black intense in hue. And so amongst men and crawling creatures and cattle, are they of various colours. Those truly fear God, among His servants, who have knowledge: for God is exalted in Might, oft-Forgiving.

Id. at 35:27-28; see also id. at 50:7-8 ("And the earth—We have spread it out, and set thereon mountains standing firm, and produced therein every kind of beautiful growth [in pairs]—to be observed and commemorate by every devotee turning [to God]."). Islamic law provides that this great wealth and beauty is to be appreciated and used appropriately, but not to be wasted or pilfered. See infra notes 46, 49, 64, 103, 130-37, 149-55 and accompanying text.

37. See Qur'an 11:6 ("There is no moving creature on earth but its sustenance dependeth on God."); see also id at 27:25, 35:27.

38. SEYYED H. NASR, MAN AND NATURE: THE SPIRITUAL CRISIS IN MODERN MAN 94 (1997).

39. SEYYED H. NASR, RELIGION AND THE ORDER OF NATURE 60-63 (1996).

40. See Qur'an 16:8 ("And [He has created] horses, mules, and donkeys, for you to ride and use for show; and He has created [other] things of which ye have no knowledge.").

41. See id. at 45:3-5 ("Verily in the heavens and the earth, are Signs for those who believe. And in the creation of yourselves and the fact that animals are scattered [throughout the earth], are Signs for those of assured Faith.").

42. Id. at 45:13 ("And He has subjected to you, as from Him, all that is in the heavens and on earth: behold, in that are Signs indeed for those who reflect."); id. at 31:20 ("Do ye not see that God has subjected to your [use] all things in the heavens and on earth. And has made His bounties flow to you in exceeding measure, [both] seen and unseen?"); id. at 16:12 ("He has made subject to you the Night and the Day; the Sun and the Moon; and the Stars are in subjection by His command: verily in this are Signs for people who are wise."); see also id. at 2:29, 45:13.

43. Id. at 2:30 ("Behold, thy Lord said to the angels: 'I will create a vicegerent on earth.' They said: 'Wilt though place therein one who will make mischief therein and shed blood?—Whilst we do celebrate thy praises and glorify thy holy [name]?' He said: 'I know what you know not.'").

44. See, e.g., id. at 8:27 ("O ye that believe! Betray not the trust of God and the Apostle, nor misappropriate knowingly things entrusted to you.").

45. YAHYA IBN SHARAF AL-NAWAWI, SAHIH MUSLIM BI SHARH AL-NAWAWI 55 (1980); see also Qur'an 18:7 ("That which is on earth We have made but as a glittering show for the earth, in order that We may test them—as to which of them are best in conduct.").

46. On the need for preventing harm, see infra section III.B.

47. See Qur'an 44:38 ("We created not the heavens, the earth, and all between them, merely in [idle] sport."); id. at 3:191 ("Those who celebrate the praises of God, standing, sitting, and lying down on their sides, and contemplate the [wonders of] creation in the heavens and the earth, [with the thought]: 'Our Lord! You did not create [all] this for naught! Glory to You!'"); id. at 10:5 ("Nowise did God create this but in truth and righteousness.").

48. Id. at 24:41; see also id. at 17:44 ("The seven heavens and the earth, and all beings therein, declare His glory: there is not a thing but celebrates His praise; and yet ye understand not how they declare His glory! Verily He is Oft-Forbearing; Most Forgiving."); id. at 13:13 (on the participation on the celebration of God's praises by the thunder); id. at 21:79 (same for mountains).

49. Roger E. Timm, The Ecological Fallout of Islamic Creation Theology, in WORLDVIEWS AND ECOLOGY: RELIGION, PHILOSOPHY, AND THE ENVIRONMENT 83, 89 (Mary Evelyn Tucker & John A. Grim eds., 1994).

50. Qur'an 15:19 ("And the earth We have spread out [like a carpet]; set thereon mountains firm and immovable; and produced therein all kinds of things in due balance.").

51. Id. at 55:7-8.

52. See id. at 23:27 ("So We inspired him [Noah] [with this message]: 'Construct the Ark within Our sight and under Our guidance: then when comes Our command, and the fountains of the earth gush forth, take thou on board pairs of every species, male and female, and thy family—except those of them against whom the word has already gone forth: and address Me not in favor of the wrong-doers; for they shall be drowned [in the Flood].'") (emphasis added).

53. As alluded to above, the fact that the order was directed to Noah, a prophet under Islam, does not limit its broader application. In Islamic jurisprudence, God's commands, or law, to prophets of pre-Islamic era are deemed to be commands to the community of Muslims where there is no express textual modification or repudiation of that command. This principle of legal derivation is referred to as shar' man qablana, or "the law of our predecessors." This is because Islam treats the human community as fundamental, united through time and space as well, and legal principles from God are universal and immutable. See Qur'an 10:64 ("No change can there be in the Words of God."). From the consistent manner in which Islam approaches biodiversity, it may be argued that the duty to protect biodiversity is one such immutable law, applicable to all of humanity at all times.

54. See http://www.biodiv.org/natrep/Iran/Iran.pdf (last visited June 21, 2001).

55. See Qur'an 3:83 ("Do they seek for other than the Religion of God—while all creatures in the heavens and onearth, willingly or unwillingly, [bowed to His will], and to Him shall they all be brought back."); see also id. at 26:7-8 ("Do they not look at the earth,—how many noble things of all kinds We have produced therein? Verily, in this is a Sign: but most of them do not believe.").

56. See id. at 76:3 ("We showed him the Way: whether he be grateful or ungrateful [rests on his will]."); id. at 22:18.

57. MUHAMMAD IBN ISMA'IL AL-BUKHARI, 3 SAHIH AL-BUKHARI: THE TRANSLATION OF THE MEANINGS OF SAHIH AL-BUKHARI 397 (Muhammad M. Khan trans., 1985). Islam further recognizes that all living organisms maintain their own communities, with their own distinct individual and social lives. See Qur'an 6:38 ("There is not an animal [that lives] on the earth, nor a being that flies on its wings, but [forms part of] communities like you," where "animal on earth" is understood to include those living in fresh and salt water.).

58. See, e.g., GARY K. MEFFE & C. RONALD CARROLL, PRINCIPLES OF CONSERVATION BIOLOGY 24-27 (1994) (discussing biodiversity as a source of goods, services, information, and psycho-spiritual uses for people).

59. Qur'an 4:131; see also id. at 7:128 ("[Surely] the earth is God's, to give as a heritage to such of his servants as he pleaseth.").

60. Saba Habachy, Property, Right, and Contract in Muslim Law, 62 COLUM. L. REV. 450, 456 (1962) (noting that Islamic law protects an individual's right to use a resource against all other persons, including the state, which cannot interfere with the right unless necessitated by war or another superior public interest established by law).

61. See infra notes 62-72 and accompanying text.

62. See Ali Ahmad, Islamic Water Law as an Antidote for Maintaining Water Quality, 2 U. DENV. WATER L. REV. 169, 179 (1999).

63. Id. at 180.

64. Muslim individuals are not permitted to kill animals or destroy trees even during a war in order to anger the enemy. Reflecting the practice of the Prophet, Abu Bakr gave the famous order to Yazid ibn Sufyan, the commander of an army that went to Sham or Great Syria:

And I instruct you [to fulfill the following] ten [orders]: do not kill a woman, nor a child, nor an old man; do not cut down fruitful trees; do not destroy [land or housing] in use; do not kill a goat or a camel unless for food; do not flood palm trees [with water] nor burn them down.

MALIK IBN ANAS, MUWATTA' 918 (Abdel-Magid Turki ed. and trans., 1994). However, one incident, which is generally regarded as an exception, occurred during the siege against Banu Nadhir, during the perilous and defining years of early Islam. The Prophet ordered troops to cut some of their date palms. The Qur'an referred to the incident thus: "Whether ye cut down [O you Muslims!] the tender palm-trees, or ye left them standing on their roots, it was by leave of God." Qur'an 59:5.

65. ABDUL HASSAN ALI IBN MUHAMMAD IBN HABIB AL-BASRI AL-MAWARDI, AL-AHKAM AL-SULTANIYYAH WA'L WILAYAT AL-DINIYYAH 273 (1978) (observing that rights characterized as huquq Allah enjoy a heightened enforcement requirement over other contractual, trade, or property-based rights).

66. Libyan American Oil Company (LIAMCO) v. Libya, reprinted in 20 I.L.M. 1, 90 (1981) (Mahmassani, Arb.).

67. See generally FARHAT J. ZIADEH, PROPERTY LAW IN THE ARAB WORLD: REAL RIGHTS IN EGYPT, IRAQ, JORDAN, LEBANON, LIBYA, SYRIA, SAUDI ARABIA, AND THE GULF STATES 26-29 (1979).

68. LIAMCO, 20 I.L.M. at 91 ("Under Islamic law, particularly in the Maliki School, mines and underground resources are the property of the Sultan (the State).") (citing, among others, IBN JUZYA, AL-QAWANEEN AL-FIKHIYYA 102 (1935)); see also Walied El Malik, State Ownership of Minerals Under Islamic Law, 14 J. ENERGY NAT. RESOURCES & ENVTL. L. 310, 315 (1996).

69. Ahmad, supra note 62, at 188.

70. The case of al-Dahak elaborates the principle that greater weight is accorded public access to water than to incidences of private proprietorship. In that case, the plaintiff al-Dahak wanted to access water by digging a canal. The only way he could have done so was by digging through the land of Muhammad ibn Muslimah, the defendant. The defendant strongly opposed this idea of a canal passing through his property. The Caliph 'Umar decided in favor of the plaintiff, despite the defendant's strong objection. IBN ANAS, supra note 64, § 279.

71. MAJALLAH AL-AHKAM AL-ADLIYYAH, art. 906, quoted in S.S. Onar, The Majallah, in LAW IN THE MIDDLE EAST, supra note 29, at 303 [hereinafter MAJALLAH]. The Majallah is reputed to be the first digest of Islamic legal rules and principles of civil matters in a codified form. It was promulgated by the Ottoman authorities in 1869. See id. at 293.

72. AL-MAWARDI, supra note 65, at 290

73. AL-BUKHARI, supra note 57, at 37.

74. It is part of the immutable law of Islam that Mecca has been and will continue to be a sanctuary for humankind and for all organisms of the earth located in its vicinity. Qur'an 27:91 ("I [Muhammad] have been commanded only to worship the Lord of this city [Mecca], Who has sanctified it and to Whom belongs everything.").

75. Unlike Mecca, which was designated in the Qur'an by God as a sanctuary for His creatures, Medina was designated by the Prophet (in his declaration, or Sunnah): "Verily I declare Medina a sanctuary [that is the area] that lies between its two mountain paths. Its trees shall not be cut and its game shall not be hunted." AL-BUKHARI, supra note 57, at 54.

76. Id. at 37.

77. See supra note 75.

78. Qur'an 5:97.

79. ALI IBN HAJAR AL-ASQALANI, 4 FATHUL BARI FI SAHIH AL-BUKHARI 413-19 (1959). The haram mechanism does not envisage domestic animals necessary for nourishment.

80. The Prophet was reported to have said: "Five creatures, all harmful, can be killed in the haram: the crow, the kite, the scorpion, the mouse, and the rabid dog." AL-BUKHARI, supra note 57, at 34.

81. AL-MAWARDI, supra note 65, at 189.

82. AL-ASQALANI, supra note 79, at 415.

83. AL-MAWARDI, supra note 65, at 188. This penalty is prescribed under ta'zir, which is a punishment classification that may be expanded or abridged depending on the scope of the crime.

84. See MUHAMMAD S. AL-UTHAYMAYN, AL-USUL MIN 'ILM AL-USUL 58 (1997) (regarding ta'wil, a methodology by which rules are extended beyond their express connotations).

85. UTHUMAN IBN FUDI, BAYAN WUJUB AL-HURA 'ALA-L 'IBAD 72 (F.H. El Misri trans., 1978) (observing that "Al-Kharashi and others said that nobody is allowed to erect in a harim a building or any other thing which would inconvenience the occupants of the area.").

86. Id. at 73. The harim of a spring is set by some jurists 500 cubits (1 cubit = 0.758 meters), while that of a river is 1,000 cubits or one-half of its width, whichever is greater. See MAJALLAH, supra note 71, arts. 1281-1291.

87. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, done at Ramsar, Iran, Feb. 2, 1971 (entered into force 1975), reprinted in 11 I.L.M. 963.

88. IBN FUDI, supra note 85, at 70.

89. AL-ASQALANI, supra note 79, vol. 5, at 442.

90. The first hima administrator was Usama who administered the hima of Al-Rabadha, which had been designated by Caliph Abubakr in 632 A.D. AL-MAWARDI, supra note 65, at 212.

91. Writing on the issue of governance in the 19th century, Shaykh Ibn Fodio observed that the office of hima was "well known" in government circles, as it was not a concept that had been borrowed from outside of Islam. IBN FUDI, supra note 85, at 70.

92. AL-ASQALANI, supra note 79, vol. 5, at 441 (noting that "Hima may be designated by the persons who occupy the position of the Prophet; that is the Caliph."). Placing hima powers in the public realm seeks to prevent the arbitrariness that may accompany the designation of choice areas by powerful individuals for parochial, rather than public, benefits. See AL-BUKHARI, supra note 57, at 326 (quoting the Prophet as asserting "There shall be no hima [established] except for God or His Messenger [the public].").

93. IBN FUDI, supra note 85, at 72.

94. Id.

95. Id. at 70.

96. Id.

97. Id.

98. AL-MAWARDI, supra note 65, at 210. In other himas, restriction on grazing may be seasonal or based on the type or number of the livestock. Yassin Dutton, Natural Resources in Islam, in ISLAM AND ECOLOGY, supra note 8, at 51, 55.

99. Qur'an 40:79; see also id. at 16:5, 5:1.

100. On kind treatment of animals, the Prophet Muhammad told a story of a thirsty man who, when he finished drinking from a well, noticed a dog panting for thirst. The man went back and filled his shoe with water and gave it to the dog. For this, God forgave him. The Prophet then remarked: "There is a reward for serving any animate." AL-BUKHARI, supra note 57, at 322-23. See also id. at 323-24 (quoting the Prophet as saying: "A woman was tortured and was put in Hell because of a cat which she had kept locked till it died of hunger. Allah's Apostle further said [Allah knows better] Allah said [to the woman], 'You did not feed nor water it when you locked it up, nor did you set it to eat the insects of the earth.'"). The Prophet also prohibited the shooting of tied animals, or making them an object of target. Id. vol. 7, at 307.

101. See Ahmad Ibn Shu'aib Al-Nasa'i, Sunan Al-Nasa'i, in AL-KUTUB AL-SITTAH, supra note 35, § 4354 ("'Whoever kills a sparrow or anything bigger than that without a just cause, Allah will hold him accountable on the Day of Judgment.' The listeners asked: 'O Messenger of Allah, what is a just cause?' He replied, 'That he kills it to eat, not simply chop off its head and then throw it away.'"); see also id. § 4451 (noting that the Prophet declared: "If you kill a sparrow [or any other animal] without justification, it will hasten to Allah on the Day of Judgment saying: 'O Lord! So and so killed me for fun and not for use.'").

102. SAYYID SABIQ, 3 FIQH AL-SUNNAH 309 (1970).

103. The first Caliph set forth the express injunction based on the tacit practice of the Prophet: "Do not cut down fruitful trees . . . and do not kill animals except for food." IBN ANAS, supra note 64, § 918.

104. YUSUF AL-QARADAWI, AL-SUNNAH MADAR LI AL-MA'RIFAH WA AL-HADARAH 145-46 (1977) (noting, inter alia, that "the jurist deduces from [the hadiths] the prohibition of the killing of an animal except for food.").

105. The other, minor justification is where an animal constitutes a danger to people. See supra note 80 and accompanying text.

106. See, e.g., infra notes 119-29 and accompanying text (discussing mechanisms for protecting threatened marine biological resources).

107. Qur'an 5:4.

108. IBN ANAS, supra note 64, § 413.

109. AL-BUKHARI, supra note 57, vol. 7, at 313.

110. Sahih Muslim, in AL-KUTUB AL-SITTAH, supra note 35, § 4994 (also forbidding consumption of animals with paws).

111. SABIQ, supra note 102, at 248.

112. Id. at 283.

113. Id.

114. Id. at 302; Sahih Muslim, in AL-KUTUB AL-SITTAH, supra note 35, § 5055 (quoting the Prophet as saying: "Verily Allah has enjoined goodness to everything; so when you kill, kill in a good way and when you slaughter, slaughter in a good way. So every one of you should sharpen his knife, and let the slaughtered animal die comfortably.").

115. SABIQ, supra note 102, at 302; see also Qur'an 6:121 ("Eat not of [meats] on which God's name has not been pronounced.").

116. For fuller details on other modes, such as the rule of using dogs as hounds, see SABIQ, supra note 102, at 311.

117. Id. The meat that is cut from a live animal is also not lawful to be eaten. See Abu Dawud Ibn Ash'ath, Sunan Abu Dawud, in AL-KUTUB AL-SITTAH, supra note 35, § 2858 ("Whatever is cut from an animal while it is alive is carrion [and cannot be eaten].").

118. MEFFE & CARROLL, supra note 58, at 331-32.

119. Qur'an 5:99.

120. IBN ANAS, supra note 64, § 27.

121. See, e.g., IUCN Red List, supra note 7 (listing the hawksbill turtle as critically endangered in Egypt and Nigeria, the green turtle as endangered in Egypt and Nigeria, and the pygmy hippopotamus as vulnerable in Nigeria).

122. Islamic Foundation for Ecology and Environmental Sciences (IFEES), The Application of Islamic Environmental Ethics to Promote Marine Conservation in Zanzibar: A Case Study 1 (unpublished manuscript, on file with authors) [hereinafter IFEES].

123. Id. at 1-2.

124. Id. (describing the Misali Ethics Project).

125. See id. at 2.

126. See id.; see also FAZLUN KHALID, QUR'AN: CREATION AND CONSERVATION (1999).

127. Personal communication with Fazlun Khalid to Ali Ahmad (Mar. 2001).

128. See IFEES, supra note 122, at 3.

129. See supra section II.C.3.

130. See AHMAD IBN TAYMIYYAH, 4 FATAWA AL-KUBRA 619 (1996).

131. E.g., Qur'an 16:80:

It is God who made your habitations homes of rest and quiet for you; and made for you, out of the skins of animals, [tents for] dwellings, which ye find so light [and handy] when ye travel and when ye stop [in your travels]; and out of their wool, and their soft fibers [between wool and hair], and their hair, rich stuff and articles of convenience [to serve you] for a time.

132. See supra note 111 and accompanying text.

133. AL-BUKHARI, supra note 57, vol. 7, at 314.

134. SABIQ, supra note 102, at 279.

135. Id.

136. Warning against excessive luxury, the Prophet said: "Do not ride on silk and on fur of tiger." Sunan Abu Dawud, in AL-KUTUB AL-SITTAH, supra note 35, § 4129. In another pronouncement not restricted to tigers, the Prophet expressly warned against utilizing hides of wild animals as apparel, as well as prohibiting their use as ornaments while riding other animals. Al-Nasa'i, supra note 101, §§ 4258, 4260.

137. Sunan Abu Dawud, in AL-KUTUB AL-SITTAH, supra note 35, § 2675.

138. See supra notes 108-113 and accompanying text.

139. Sunan Abu Dawud, in AL-KUTUB AL-SITTAH, supra note 35, § 5267.

140. Id. § 5269 ("A doctor asked the Prophet about killing a frog and making it as part of a solution for a medicine. The Prophet prevented him from killing the frog.").

141. See supra note 7.

142. IBN ANAS, supra note 64, § 918.

143. Deuteronomy 20:19-20:

When you are at war, and lay siege to a city for a long time in order to take it, do not destroy its trees by taking the axe to them, for they provide you with food; you shall not cut them down. The trees of the field are not men that you should besiege them. But you may destroy or cut down any trees that you know do not yield food, and use them in siege-works against the city that is at war with you, until it falls.

144. Sahih Muslim, in AL-KUTUB AL-SITTAH, supra note 35, § 3968 (quoting the Prophet as saying: "No Muslim, who plants a branch of tree, except that whatever is eaten or stolen from it, or eaten by a tiger or a bird or anyone obtains the least thing from it, except it is considered charity on his behalf until the Day of Judgment.").

145. Sunan Abu Dawud, in AL-KUTUB AL-SITTAH, supra note 35, § 5239. Note narrator's comment that this is due to the fact that the tree shields people and wildlife from sun and provides fruits.

146. AL-BUKHARI, supra note 57, vol. 7, at 261.

147. See, e.g., MICHAEL BEGON ET AL., ECOLOGY: INDIVIDUALS, POPULATIONS, AND COMMUNITIES 482-521 (3d ed. 1996) (examining mutualisms between and among animals, plants, and fungi).

148. Qur'an 57:7-9.

149. IBN TAYMIYYAH, supra note 130, at 619.

150. Qur'an 7:31.

151. ABDULLAH IBN AHMAD AL-QURTUBI, 10 ALJAMI' LI AHKAM AL-QUR'AN 247 (1967).

152. BAGADER ET AL., supra note 8, at 5.

153. Muhammad Ibn Majah, Sunan Ibn Majah, in AL-KUTUB AL-SITTAH, supra note 35, § 425.

154. Qu'ran 17:26.

155. AL-QURTUBI, supra note 151, at 247-48.

156. MUHAMMAD ABU ZAHRAH, USUAL AL-FIQH 376 (1958) (quoting the Prophet as saying: "There shall be no harm and no infliction of harm.").

157. MAJALLAH, supra note 71, art. 30.

158. See supra note 72 and accompanying text.

159. See generally AHMAD, supra note 9; see also BERNARD G. WEISS, THE SPIRIT OF ISLAMIC LAW 146 (1998) ("The spirit of Islamic law is in the balance more communalistic and directive, less individualistic and facilitative, than the Western law.").

160. ABU ZAHRAH, supra note 156, at 364-66; see also HUSAINI, supra note 17, at 80 (noting that "private or public benefits must be forgone, and national interests subdued, in order to perform what is fard [obligatory] and to desist from what is haram [forbidden].").

161. On the principles of rule deduction, see ABU ZAHRAH, supra note 156, at 222-38. In accordance with analytical deduction method of Islamic jurisprudence, the concept of harm can be extended where the relevant class is God's creatures. Various legal treatments have been extended to non-human creatures based on this consideration, confirming the validity of extending the no-harm rule to these creatures. The established assumption of Islamic law is that both humans and non-humans are God's creatures, and the divine order encompasses all without distinction. See Qur'an 4:126 ("And He it is that encompasseth all things."). As another verse points out, it is not only God's creation that permeates the earth, His order and command also do. Id. at 7:54 ("Surely, His is the creation and commandment.").

162. See supra note 114 and accompanying text.

163. See supra notes 53-54, 104 and accompanying text.

164. See supra note 130.

165. See supra section II.C.1.

166. Sunan Abu Dawud, in AL-KUTUB AL-SITTAH, supra note 35, § 2839.

167. See supra note 57 and accompanying text.

168. See supra notes 122-29 and accompanying text.

169. Islamic law is the positive law within Muslim societies in the sense that it is what their governments seek to apply and enforce and it sets forth the norms that most Muslim people in the society seek to live by. WEISS, supra note 159, at 114; see also supra section II.B.

170. See supra note 144 and accompanying text.

171. See, e.g., AL-BUKHARI, supra note 57, vol. 7, at 335 (quoting the Prophet as commanding one year that):

"Whoever has slaughtered a sacrifice should not have of its meat anything after three days." When it was the next year the people said "O Allah's Apostle! Shall we do as we did last year?" He said: "Eat of it and feed of it to other and store of it, for in that year the people were having a hard time and I wanted you to help (the needy)."

SABIQ, supra note 102, at 324 (noting that Muslim jurists have since interpreted this Hadith and concluded "that the best posture would be to eat one-third of the meat, store one-third, and offer one-third to the needy.").

172. See DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 1051-52 (1998). Although the jambiyas are utilized in an Muslim society, they have their roots in tribal practices.

173. U.N. Pleads With Taliban Not to Destroy Buddha Statues, N.Y. TIMES, Mar. 3, 2001, at A3 (quoting the Taliban's leader Mulla Muhammad Omar as declaring in his edict to destroy the statutes that: "These idols have been gods of the infidels."); Holland Cotter, Buddhas of Bamiyan: Keys to Asian History, N.Y. TIMES, Mar. 3, 2001, at A3; Barry Bearak, Over World Protests, Taliban Are Destroying Ancient Buddhas, N.Y. TIMES, Mar. 4, 2001, at A6 (quoting the Taliban's minister of information and culture as saying: "It is not a big issue . . . . The statues are objects made only of mud or stone."); Barry Bearak, Afghan Says Destruction of Buddhas Is Complete, N.Y. TIMES, Mar. 12, 2001, at A4; Barbara Crossette, Taliban Explains Buddha Demolition, N.Y. TIMES, Mar. 19, 2001, at A9 (quoting a Taliban envoy as explaining that the Taliban did not try to destroy the statues earlier because they were "harmless," but once foreign aid money started flowing more to cultural preservation than to humanitarian food relief, then the Taliban found that the statues became harmful and had to be destroyed. The envoy did note that the Taliban would protect statues currently being worshipped as well as Hindu temples.).

174. See, e.g., Molly Moore & Pamela Constable, Voices in Muslim World Decry Taliban Vow to Destroy Statues, WASH. POST, Mar. 10, 2001, at A15 (noting that "some radical Islamic groups have strongly endorsed the Taliban action on religious grounds").

175. See Azizah Y. Al-Hibri, Opinion on the Afghani Demolition of Ancient Religious Symbols, Mar. 12, 2001 (unpublished manuscript on file with authors); U.N. Pleads, supra note 173 (quoting Pakistan's foreign minister as stating that "respect for other religions and for their beliefs is enjoined upon Muslims" and the chief Muslim cleric in Egypt as stating that the statutes are "just a recording of history and don't have any negative impact on Muslim's beliefs"); Bearak, Afghan Says Destruction, supra note 173 (quoting U.N. Secretary-General Kofi Annan as observing that: "Hardly any Islamic scholars have supported their decision [to destroy the statues].").

176. Cf. Moore & Constable, supra note 174 (noting that the Afghan controversy has its roots in a broader struggle "to reconcile ancient tradition and beliefs with modern law and social norms").