The Art of Creating Codes of Conduct for Islamic Institutions

The Art of Creating Codes of Conduct for Islamic Institutions

Introduction

When our team at In Shaykh’s Clothing makes policies for organizations, we use corresponding national standards as a guide and work with organizations to determine their best practices and ethical expectations based on their Islamic understanding. This is the only way to have concepts such as inappropriate behavior and unethical behavior clearly defined and actionable.

The diversity in the Muslim community in North America cannot be overstated. Sharia (Islamic Law) is our common denominator, however, there is significant diversity and differences of opinion on rulings that make universal standards in most areas impossible.

Religious communities have different conceptions of appropriate behavior, having various degrees of evidence from the sharia. Not all are necessarily equal, but they are valid. There is no Islamic qadi (judge) to throw out unfavorable opinions nor is there an enforcement mechanism for which views should be practiced. This creates a free-for-all that is used to justify abuse which reduces ‘bad’ to only something that is haram by consensus. Sharia minimums are not how any functioning society or group should decide what is appropriate. Sharia recognizes local customs and regional standards (called “Urf”) and is flexible to accommodate them in matters which are not forbidden. What is culturally unacceptable and what we deem ‘wrong’ even if not universally haram (forbidden) has more to do with awareness of our own context. For example, understanding that certain behavior is bad based on experience that shows these actions are known to lead to the illicit. Also, in terms of sexual harassment or flirtatious behavior, sexually suggestive actions such as gestures, expressions, and signals are mostly culturally defined. What is considered an inappropriate gesture in one culture may not be in another, but cannot be justified vis-a-vis a different culture. For example using the middle-finger in America wouldn’t be justified as not offensive due to it being a positive symbol in Japan. The clarity that is supposed to come with culture ends up being a source of confusion, since we have many different cultures, subcultures, and religious approaches which makes appropriate behavior difficult to standardize.
‘Urf is also important in setting up professional expectations. These expectations should be congruent with the corresponding American profession. For example, an Islamic teacher in an Islamic school has similar professional expectations as a math teacher in a public school. This matters because when parents send their children to school, they expect the same professional standards any other parent expects in a public school.

Baseline Sharia Directives Are Not Enough to Dictate Ethics

In many cases of abuse, the actions of the perpetrator are not technically haram. This is often used as an excuse to justify unethical behavior. Nevertheless, these arguments are made on two faulty assumptions: 1). It’s not wrong if it’s not haram and 2) You can look at actions devoid of context.

As part of our policy-drafting expertise, we ensure there is language present to make it more difficult for perpetrators to use these faulty arguments to cover for their abuses. We emphasize contracts to circumvent these arguments. To this end, when drafting policies, we develop ethical guidelines by referring to baseline principles (qawa`id) like the prevention of harm, prevention of fitnah, and maslaha (public interest). This could render a halal action haram based on what it may lead to. For example, a man and a woman talking in a public space is halal, but if one knows it can reasonably lead to some inappropriate relationship it would not be halal in that particular situation. Or taking a halal action and determining it to be haram due to harm caused in our time, for example not performing a marriage the woman’s father does not agree to or is not informed about. Although we are not instituting fatwas, it is through this understanding that we may discuss ethics thus developing best practices and have a way of having concrete parameters for adab, or appropriateness.

Below are  scenarios that are arguably technically halal if examined in a vacuum. Though not technically haram, these scenarios demonstrate the importance of considering the principles stated above when drafting ethical policies:

1. Teacher at an Islamic K-8 marries a 13 year old pubescent girl without her parents knowing. He takes the Hanafi view that her father’s permission is not needed. Barring legality, what is wrong with this Islamically?

This involves deception of parents, violation of their trust (they didn’t send their daughter to school to get married), violation of customary duties of a teacher, and probably breach of contract with their employer (who either explicitly or at implicitly – and established by custom – holds that teachers should not pursue students). Also, this includes harm to the girl as established by `urf which can be backed by psychologists as experts for mental harm. This is also illegal, not just as a teacher but by U.S. law.

This will seem obviously wrong to most Muslims, but I have actually engaged respected Islamic teachers who have justified the above scenario. Most reject this action, but when someone they already respect commits such an action, ‘technical’ arguments are made to minimize the action. Although this offense is easier to prosecute due to local laws, recognizing it as wrong from the beginning makes it easier to report and prevent.

2. A woman is over 18 and her teacher marries her without informing her parents. He argues that this is allowed in the Hanafi school. This is legal, there is no religion used to get her to fall in love or manipulate into the marriage.

The issue with regards to what is considered within the expectations of the teacher’s behavior as per `urf would be a determining factor for how ethical this action was. Was there a violation of an implicit trust? This scenario would be difficult to render haram or wrong without an explicit contractual ethical violation.

3. A shaykh marries a vulnerable convert woman he has influence over and can steer her in his direction. He exploits her vulnerabilities and marries her but fulfills her rights as a wife.

The man may argue that there is no explicit text against his behavior and in fact there is a general encouragement in the religion to marry. Without a specific, clear, and objective code of conduct for the organization that is publicized, neither the woman nor the religious figure will be operating outside of ethical boundaries established by the community. Note that the boundaries may not be consistent from community to community. Some communities may have no problem with this, and others may want a waiting period from her conversion. What is important is that  conduct that is approved be clear and objective so people can make adjustments accordingly.

4. A Qur’an teacher insists that it is perfectly halal for him and his minor-child student to be alone in a closed door because it is not khalwa (khalwa only applies to men and women) despite the parent feeling uncomfortable with the child being alone with the Qur’an teacher.

Though there is nothing in our primary sources that says a man and a child being alone is prohibited, this was identified by many scholars as a compromising setting, and there are historical edicts issued which prohibited the seclusion of a man with a child, including pre-pubescent boys, to prevent child sexual abuse. This was recognized as an avenue to the haram, and was therefore declared contingently haram. In America, some Quran schools have a policy in which they do not allow a teacher to ever be alone with a child. This is not the law, nor is it haram, but it is prudent to follow this standard given what we know about how child sexual abuse takes place so institutions adopt it as a contractual condition.

Khalwa

Khalwa is seclusion between a man and a woman who are not married or directly related in which sexual intercourse may take place without a likelihood of others entering. You can note from this definition, a host of other sins may take place in settings which are not intrinsically haram. The fact that the setting is not intrinsically haram, in no way suggests that it is appropriate or won’t lead to haram

Below are two real examples of abuse in which following only the rules of khalwa will not prevent abuse:

1. A shaykh would meet with women in an office room. This office had a window in a hallway that others could pass by if also in the building. After a series of meetings with no incident, and while others were present in the building, the shaykh unexpectedly touched the woman’s knee and kissed her. She walks out of the room, and he spins the story as her coming on to him and him rejecting her.

2. An imam insists on driving alone with a student at night. She expresses discomfort and tells him that she doesn’t think it’s allowed as no one will be there. He tells her it’s not khalwa because the car has windows and others on the road can see them. She maintains that she doesn’t think it’s appropriate, and he makes fun of her and emphasizes that this is not a big deal. She doubts herself and complies. He touches her legs at different moments and she waits for the ride to end before leaving and cutting off contact with him.

Both of these incidents could have been prevented if boundaries were clearly defined. If the concern were professional boundaries opposed to a sharia definition of khalwa, and this were clearly outlined to all members in the organization, there would be a firm grounds for refusal to meet in the above mentioned settings.

A Code of Conduct Makes Enforcement Consistent

That gut feeling of ‘this is wrong’ that a person feels when being pressured into an inappropriate setting despite it being halal should be trusted. If this is not spelled out however, such as by stipulating in an organization “no male and female employee can be alone in the conference room even if there is a window” it would be difficult for somebody to demand that as a norm. Having this set as a rule allows one to argue about appropriateness without having to prove the setting is haram by consensus. If you don’t have this stipulation and someone says they are uncomfortable, or something happens in this situation, it is difficult for that person to claim the inappropriate meetings shouldn’t have happened in the first place.

Victims are often too terrified to speak out. A few reasons include: 1) Being traumatized, 2) They don’t think anyone will believe them, and 3) Not sure they’ll be protected even if they do come out. If there is no policy, there’s no explicit statement to say what happened is bad. They may retreat in their own world and say ‘maybe it wasn’t wrong.’ They question their own experience to see if it was wrong or not. They may get into doubts ‘was I actually abused?’ Others to whom they complain also interrogate them asking ‘is it real khalwa?’ ‘Are you sure you aren’t exaggerating?’ Are you mis-remembering?’ But if the policy says ‘you can’t be alone’ the moment the guy shuts the door, that is enough. They should also be ensured that their complaints won’t be used against them or made public.

Other examples of differing views on appropriateness include the long debate over whether we should have dividers or not in the masjid. Both sides have valid points. Another example is taking photos with the opposite sex. Some Muslims may find male teachers taking photos with female students reprehensible. Others will take issue with female teachers appearing on video or flyers, or men and women learning in a room with no dividers and these actions will be seen as a sign of immodesty and lack of spirituality, but to other learned practicing Muslims it will be perfectly normal and respectable. We can’t expect universal agreement on these issues, and since we cannot come to a consensus, these cannot be matters of national policies or standards.

Often in Muslim organizations, there are vague stipulations that amount to promising to uphold the highest standards of Muslim conduct. Such vague injunctions are impossible to enforce consistently because they can mean anything to anybody. Clear and objective standards of conduct make it easy to go through the fact finding process:

Here is a hypothetical example: A teacher at an Islamic school asks a 16 year old for her number in a private setting. She alleges it was in a suggestive tone but the teacher says her father is a friend of his so he just wanted to talk to him.

This is a classic he said-she said scenario. Both parties should be called in and questioned individually. What do you do without other direct evidence? At this point, you go to surrounding factors relating to the scenario and circumstantial evidence. Under which circumstances would a teacher need to ask a student in a private setting? As an institution this is on file, why isn’t he asking the administration? A problem here is the blending of a personal matter, the claim that he wants to speak to his friend, and the professional expectation of only receiving the number from the school. Here, the teacher should be disciplined for not following professional procedures, regardless if his side of the story were true. This is how you avoid the he “said-she said” and avoid the mess of when things are allowed to escalate.

It is important to have expectations, standards, and a code of conduct laid out as clearly as possible. It is not feasible to have a code of conduct beyond basic professional standards as our diverse community varies greatly in particulars. ‘Inappropriate’ behavior, while halal and legal, can be difficult to identify and firmly avoid if it is not made clear. Secondly, each member on staff needs to be able to report violations. This is why we work with organizations to create policies that match national standards and customize guidelines that may vary, and we train staff how to handle violations.

The most practical solution is for each organization to have its own set of policies on shared values. By binding themselves to this contract, shar`i issues are avoided. People who are more conservative in their social relations are free to implement norms that are halal and congruent with their conservatism, while those who have a more lax understanding can have corresponding halal norms. Even from a shar`i perspective, the whole goal of a contract is to erase disputes. Defining what the appropriate guidelines are in the employment contract is one way to do that.

Conclusion

It is virtually impossible for a Muslim organization to effectively handle a scandal involving multiple victims against a prominent (or not so prominent) member of the organization. Having a clear code of conduct, an established confidential compliant system, a standardized mechanism for investigating allegations without a conflict of interest, and standardized approaches to dealing with improper conduct consistent with legal obligations is the best way to catch and address problems early before they become a full-blown crisis.

With social media in particular, religious organizations cannot continue to put their heads in the sand and hope nothing happens. It is time for every organization to take a hard look at a standardized code of conduct that is consistent with best practices for running nonprofit organizations, and takes into account our religious sensibilities.

We at In Shaykh’s Clothing have years of experience in training and creating ethical policies in the context of Muslim leadership. Our team is comprised of Muslim scholars, experts in narcissism, professional certified coaches, and attorneys. If your organization or institution is in need of policies , contact us at info@inshaykhsclothing.com. For more on our services, click here.

You can contact Danish Qasim directly via Danish@inshaykhsclothing.com.

Special thanks to Wasim Shiliwala for his assistance in this piece.

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