Connect with us

Aqeedah and Fiqh

Understanding the Statements of the Illustrious Imams: ‘When a Hadith is Sahih it is my Madhab”

Sh. Abdullah Hasan

Published

on

What is the meaning of the statement by the four Imams: Abu Hanifah, Malik, al-Shafi’i, and Ahmad Ibn Hanbal, that ‘when a hadith is found to be authentic that is my adopted position (in fiqh)’?

Summary:

  • Statements such as these by the illustrious Fuqaha are to be understood in their proper context. They were addressing them to their students and scholars alike and not to any lay people and non-specialists in fiqh and hadith.
  • The statements could also be interpreted to mean that an individual scholar will be given license to investigate Ahadith (if he is capable) but must not contradict the Usul or the principles of the Imam (madhab) in its entirety.
  • Language should not be (always) taken literally. Speech should be understood in their correct context by considering the addresser and the addressee of a particular statement(s).
  • Single or a group of Ahadith are not sufficient for deducing Ahkam (rulings) from the sources.
  • Those who are competent and fulfil the criterion of ijtihad are only suitable to directly investigate and deduce rulings from the Qur’an and Sunnah.
  • Those who are novices in the Arabic language and fiqh (jurisprudence) are required to conform to the views and investigations of qualified scholarship.
  • Each of the great mujtahidun scholars opined certain methodology when investigating Ahadith and fiqh. If a competent scholar ignores to apply a particular authentic hadith it does not necessarily imply that he is neglecting the narration intentionally nor does it necessarily mean that he was unaware of the narration.

Understanding language

One of the most important branches of Usul al Fiqh, Tafseer and other sciences is the study of language. Linguistics includes principles relating to the way in which words convey their meanings, and to the clarity and ambiguity of words and their interpretation. The knowledge of these principles is essential to the proper understanding of the sources of the Shari’ah, the Qur’an and the authentic Ahadith of the Prophet, which laws and rulings are deduced.

Language[1] is employed by people to communicate with each other; teach, express emotions and feelings. Without the correct understanding of language there would be much difficulty in the way in which people and civilisation develops.

However, although there are universal modes of language, the way in which we express our thoughts and communicate our speech will vary from country to country, culture to culture and person to person. An educated man, for example, will differ in expression and the method of articulation of his thoughts from the way a man who has a simple elementary education; a doctor’s level of communication will differ from that of a farmer; a lawyers method of expression and choice of phrases and words will differ with a student; a university professor’s writing and usage of prose and rhymes therein will differ from a beginner learning a language, so on and so forth.

Furthermore our language or the words and phrases we employ in our day to day conduct and communication with other people will differ immensely when we consider our environment, context or to whom we address our message etc. Our cognitive and emotional state of mind will also effect and influence, to a large extent, the way in which we communicate and express our feelings and inner understanding. An intelligent person will survey the listener and articulate his or her thoughts appropriately. Conversely and, depending on the level of the understanding of the audience, each person or group will determine or interpret the conveyed message in varied forms and elucidations.

Speech and its objectives

Ibn ‘Ashur explains this very succinctly in his treatise on Maqasid al-Shari’ah under the chapter heading ‘Insufficiency of the literal methodology without knowledge of the Higher Objectives’:

‘’Never has speech in any human language, nor of its genres and styles in a particular language, been sufficient by itself to indicate the intent (Maqsad) of the speaker in such a way that would preclude any possibility of doubt about the signification (dalalah) of his words. I mean the kind of signification referred to as explicit expression (nass) that is unequivocal in denoting one particular meaning to the exclusion of others. However, the meaning of words in different languages, and the meanings of different types of speech in the same language, vary greatly in the degree of doubt and probability (ihtimal) arising in the mind about the purport (murad) of that speech. Some types of speech are more open to interpretation than others, just as speech authors differ in their capacity to articulate in an unequivocal way the meanings they intend by the words they use. Hence, some speakers are described as fluent or eloquent.’’[2]

He also highlights that the understanding of the listeners or the audience of a particular speech will vary depending on their capacity to understand the various contours of language,

‘’Similarly, in so far as their understanding of its import is concerned, the share of listeners to a speech also varies according to their understanding and practice of the idioms of that speech and the styles of those who belong to the same category as the author of that speech. Likewise, neither speakers nor listeners can afford to ignore certain features that surround a speech act, namely the context, the capacity (maqam) from which that act flows as well as its background information. All these elements consolidate one another in such a way as would exclude some possibilities of interpretation that might concur to the listener’s mind concerning the speaker’s intention. This is the reason why the speaker’s direct words to his listeners express his intention more clearly than when they are conveyed by another person. Likewise, a speech conveyed to others in writing is more open to different interpretations that a speech conveyed verbatim, let alone speech that is addressed directly. This is because a written speech loses the connotations of context and the features of both the speaker and the conveyer, despite the fact that it is more accurate for it is less subject to distortion, omission, or having its meaning expressed in different words when the conveyer fails to retain the original words of the speaker.’’[3]

Additionally he clarifies the mistake of those who only take the literal words in a speech without considering the context and import of the conveyer and the variant capacity of the listeners.

It is in this light that the reported statements ‘when a hadith is found to be authentic then that is my adopted position’ (and similar statements) by the illustrious Imams of the four acceptable and popular schools of thought have been and should be understood and interpreted. Ibn ‘Ashur in his treatise on Maqasid further explained:

‘’It is here also that we can realise the inaccuracy and unsoundness of the statement attributed to al-Shafi’i, in which he is reported to have said: ‘’If a tradition (khabar) from God’s Apostle is proven authentic, then that is my adopted position,’’ for such as statement cannot be uttered by a scholar who has attained the level of a mujtahid. Moreover, evidence from al-Shafi’i’s juristic doctrines compels us to believe that this statement is either wrongly attributed to him or has been distorted, unless he means by authenticity the perfect signification based on the considerations that we have explained, and provided it is free from opposition from what we have warned against.’’[4]

Ibn ‘Ashur then clarifies how this statement from al-Shafi’i (and others) should be understood,

‘’Accordingly al-Shafi’i’s statement can be interpreted as follows: When you examine my juristic views, you should know that they are based on authentic tradition.’’[5]

The issue and the confusion

Unfortunately in recent times these statements by these great scholars of Islamic law have been taken out of context and sometimes used to substantiate an adopted methodology in fiqh by certain individuals and groups. Many books have been authored on denouncing the concept of taqlid (conformation) by all, even the non-specialists who may not have the basic understanding of the Arabic language or even unable appreciate the vast intellectual differences in the areas of Usul al-Fiqh, Usul al-Hadith, Usul al-Tafseer and other such disciplines in Islamic law.

Countless articles, YouTube videos, discussions on forums and even lectures have been produced to propagate the notion of completely rejecting the views of these scholars when an ‘authentic’ narration, according to them, is found which stands incongruity to the perceived authentic narration they have.

Much confusion and sedition (fitnah) arose from these inaccurate interpretations of these scholars to the extent that lay people or non-specialists in the sciences of the Arabic language and Islamic law have been going around shouting and screaming to shun conforming to the views of the four established schools of thought and take from where they took, i.e., directly from the Qur’an and Sunnah (prophetic traditions), without understanding or possessing the qualifications of the precepts and principle of language and methodology of deduction.

Henceforth I shall endeavour to further explain the correct and sound purport of these scholars when they uttered such statements and how we the audience and listeners should understand and analyse them.

Following are some of the reports by the heads of these schools of thought and their brief analysis:

Abu Hanifah:

  1. “When a hadith is found to be sahih (authentic), then that is my adopted position.” [6]
  2. ‘’It is not permitted for anyone to accept our views if they do not know from where we got them from.’’[7]
  3. ‘’It is not permissible for someone to give legal verdicts from my books that he should do so without knowing from where I took from.’’[8]
  4. ‘’It is prohibited for someone who does not know my evidence to give verdicts on the basis of my words.’’[9]
  5. ‘’For indeed we are human: we say one thing one day, and take it back the next day.’’[10]
  6. ‘’Woe to you, O Ya’qub! Do not write down everything you hear from me, for it happens that I hold one opinion today and reject it tomorrow, or hold one opinion tomorrow and reject it the day after tomorrow.’’[11]
  7. ‘’When I say something contradicting the Book of Allah the Exalted or what is narrated from the Messenger ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him), then ignore my saying.’’[12]
  8. ‘’What has come from the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him), then we take it without hesitation, and what has come from his companions we select from them as long as we do not depart from their sayings (in totality).’’[13]

Malik Ibn Anas:

  1. Indeed I am only a human: I make mistakes (sometimes) and I am correct (sometimes). Therefore, look into my opinions: all that agrees with the Book and the Sunnah accept it; and all that does not agree with the Book and the Sunnah, ignore it.’’[14]
  2. ‘’Everyone after the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) will have his sayings accepted and rejected – except the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him).’’[15]
  3. ‘’The Messenger of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) passed away and the affair has been completed; therefore the athar (narrations) of the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) should be followed, and (mere) opinions should not be followed.’’[16]

Muhammad Ibn Idris al-Shafi’i:

  1. ‘’In every issue where the people of narration find a report from the Messenger of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) to be sahih which is contrary to what I have said, then I take my saying back, whether during my life or after my death.’’[17]
  2. ‘’Every hadith on the authority of the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) is also my view, even if you do not hear it from me.’’[18]
  3. ‘’For everything I say, if there is something authentic from the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) contrary to my saying, then the hadith of the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) comes first, therefore do not taqlid of my opinion.’’[19]
  4. ‘’The sunnah of the Messenger of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) reach, as well as escape from, every one of us. So whenever I voice my opinion, or formulate a principle, where something contrary to my view exists on the authority of the Messenger of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) then the correct view is what the Messenger of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) has stated, and it is my view.’’[20]
  5. ‘’The Muslims are unanimously agreed that if a sunnah of the Messenger of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) is made clear to someone, it is not permitted for him to leave it for the saying of anyone else.’’[21]
  6. ‘’If you find in my book (writings) something different to the Sunnah of the Messenger of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him), then speak on the basis of the Sunnah of the Messenger of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him), and leave what I have said.’’[22]
  7. ‘’When a hadith is found to be sahih (authentic), then that is my adopted position.’’[23]

Ahmad ibn Hanbal:

  1. ‘’ Do not follow my opinion; neither follow the opinion of Malik, nor Shafi’i, nor Awza’i, nor Thawri, but take from where they took.’’[24]
  2. ‘’The opinion of Awza’i, the opinion of Malik, the opinion of Abu Hanifah: all of it is opinion, and it is all equal in my eyes. However, the proof is in the athar (narrations).’’[25]
  3. ‘’Whoever rejects a statement of the Messenger of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) is on the brink of destruction.’’[26]
  4. ‘’From the lack of understanding of a man is to follow his religion from men.’’[27]

Brief discussion:

  • Every scholar is bound to follow this precept of following the authentic narration over anything else. However, not all authentic hadith is to be implemented and actioned. Some could be abrogated; others could be specified or qualified. Furthermore there are varied opinions among the scholars in a given hadith as regards to the authenticity of it. Not all authentic Ahadith are in the same level of authenticity. There are countless number of Ahadith upon which the hadith specialists and Fuqaha have differed upon its authenticity and grade of authenticity. Therefore whose gradation does one follow? One who is not qualified to sieve through the corpus of hadith collections must conform to the experts and specialists in that field.

To perform ijtihad is a challenging task. Scholars cite some conditions:

– Knowing the Arabic Language which includes: Nahu [grammar] sarf [Arabic morphology], Balagha [science of rhetoric] and the knowledge of al-huruf [‘Ilm al Huruf]

– Knowledge of the Qur’an which includes: Ahkam al-Qur’an, the knowledge of the nuzul of the Qur’an, the science of Nasikh and Mansukh, the science of the Qira’at, and the science of tafsir.

– Knowledge of the Sunnah which includes: Mustalah hadith [also jarh wa ta’dil and the ilal of hadith], the legal ordinances contained in the Sunnah, the causes or instances of the ahadith [asbab wurud al hadith] etc.

– Usul al Fiqh which includes: Knowing the general and the specific texts, the mutlaq and the muqayyad, the abrogating and the abrogated, and the qawi’d al fiqhiyiat and their application, and the Maqasid ash Shari’ah.

– Knowledge of those matters that have consensus [ijma’ as sahih].[28]

  • The canons of hadith collections were not available during their era. Scholars were still collecting Ahadith from various locations and hadith masters, it was not till later that the books of hadith we have today were codified and written. The narrations were not available to the masses but mostly restricted to students and scholars. It is quite impossible to infer from the Imams that they were referring to non-specialists. Even if they were the statements of the Imams such as ‘when a hadith is found to be authentic then that is my adopted position’ are referring to competent scholars to make that judgement.
  • Statements such as ‘take from where they took’ suggest that the Imams are making it clear that one should investigate the root sources, i.e., the Qur’an and Sunnah directly and evaluate the verses and narrations. This surely is suggesting that the one who should do so should be well versed in the sciences of the Arabic language and possesses the tools of ijtihad and istinbat, does it not? The Imams are not referring to a novice in the Arabic language nor are they referring to ill-equipped and unqualified individuals.
  • Reading the writings and the Usul of Imam Malik, for example, makes it clear that he did not mean what some suggest in our times; he followed certain Usul or principles in fiqh and accepting Ahadith. For example, he would give preference to the ‘amal ahlal madinah when a narration contradicts the widespread action of the people of madinah.
  • Statements such as ‘do not follow my opinion but follow the narrations’ or ‘whoever is rejecting a narration is on the brink of destruction’ if taken literally from the Imams seems contradictory since they themselves disregarded certain Ahadith in their writings because they believed certain particular Ahadith have been abrogated or specified or even there are other more authentic Ahadith to a particular narration.

This has been clarified by many scholars. For example, Imam al-Razi explains why it is not possible to extract rulings from a single hadith or a group of Ahadith without looking at the verses and Ahadith in their entirety and comprehensively. This can be done only by a specialist in that field. The following is a summary of the reasons:

1. There is a possibility that the ruling that one conclude from the single evidence has been restricted to certain circumstances, without one’s knowledge.

2. There is a possibility that the expression of the single evidence is metaphoric.

3. Our reference in language is linguists, which are people who could err.

4. Arabic grammar is conveyed to us via ancient Arabic poetry, which was narrated through individuals’ narrations (riwayat ahad). These narrations are not certain and the original poets themselves could have made grammatical mistakes.

5. There is a possibility that one or more of the words of this single evidence have multiple meanings.

6. There is a possibility that one or more of the words of the single evidence have been altered, over time, in a way that alters the original meaning.

7. There is a possibility that the expression has a hidden (khafī) meaning that we do not understand.

8. There is a possibility that the ruling that we conclude from the single evidence has been abrogated, without evidence our knowledge.

9. There is a possibility that a ruling that we conclude from single evidence is at odds with ‘reason.’ In such case (al-Razi says), if both reason and narration are confirmed, then one of them is wrong. Moreover, reason is our means to confirm the validity of narration itself. Therefore, reason has precedence over narrations. Thus, we should follow reason, and not the linguistic evidence of the narration.[29]

  • Each of these mujtahidun were addressing competent students, who themselves were qualified to deduce rulings directly from the Qur’an and Sunnah; students like Abu Yusuf, al-Shaybani were qualified to make judgements on the sources.

Many scholars past and present have explained the correct way to understand these statements. For example, Taqi al-Din al-Subki’s Ma‘na Qawl al-Imamal-Muttalibi Idha Sahha al-Hadithu Fahuwa Madhhabi; Ibn al-Salah’s Adab al-Mufti waal-Mustafti; and the first volume of al-Nawawi’s al-Majmu’, all have understood these famous statements in the manner that have been clarified above. Please refer to these writings in particular for a more detailed discussion.

The correct way to understand these statements may be summarised as follows:

1. Is that the Imams restricted the instructions to qualified individuals in the various sciences who are capable of sifting the abrogating and sound Ahadith from the abrogated and unsound ones as well as extract the rulings from their collective evidence according to the principles of the Law and those of the Arabic language.

Al-Nawawi explained: ‘’What Imam al-Shafi’i said does not mean that everyone who sees a sahih hadith should say “This is the madhhab of al-Shafi’i,” applying the purely external or apparent meaning of his statement. What he said most certainly applies only to such a person as has the rank of ijtihad in the madhhab. It is a condition for such a person that he be firmly convinced that either Imam al-Shafi’i was unaware of this hadith or he was unaware of its authenticity. And this is possible only after having researched all the books of al-Shafi’i and similar other books of the companions of al-Shafi’i, those who took knowledge from him and others similar to them. This is indeed a difficult condition to fulfil. Few are those who measure up to this standard in our times. What we have explained has been made conditional because Imam al-Shafi’i had abandoned acting purely on the external meaning of many hadiths, which he declared and knew. However, he established proofs for criticism of the hadith or its abrogation or specific circumstances or interpretation and so forth. Shaykh Abu ‘Amr [Ibn al-Salah] said: “It is no trivial matter to act according to the apparent meaning of what Imam al-Shafi’i said. For it is not permissible for every faqih – let alone a layman (‘ammi) – to act independently with what he takes to be a proof from the hadith… Therefore, whoever among the Shafi’i’s finds a hadith that contradicts his School must examine whether he is absolutely accomplished in all the disciplines of ijtihad, or in that particular topic, or specific question. [If he is,] then he has the right to apply it independently. If he is not, but finds that contravening the hadith bears too heavily upon him–after having researched it and found no justification for contravening it–then he may apply it if another independent Imam other than al-Shafi’i applies it. This is a good excuse for him to leave the madhab of his Imam in such a case.”[30]

Ibn Abidin wrote: ‘’It is not hidden that this is for one qualified to examine the texts and has knowledge of its non-abrogated from its abrogated, so when the scholars of the madhhab deliberate on an evidence and act upon it, its attribution to the madhhab is sound due to it issuing by permission from the founder of the madhhab, since there is no doubt that if he knew the weakness of his proof, he would go back on it and follow the stronger proof.’’[31]

2. That the scholar should not contradict the Usul of the madhab in its entirety. As mentioned before each scholar is certain Usul in accepting or applying hadith etc. If a scholar wishes to implement a hadith then he should not go against the madhab in its entirety.

Ibn Abidin stated: ‘’That must be conditional within the madhab whether the view agrees to a view in the madhab. Since he is not given permission to perform ijtihad in so far as that goes against the school in its entirety in which the Imams (of the school) have agreed upon, because their reasoning (ijtihad) is stronger than his. Therefore the clear thing is that they saw evidence more strong than what he understood and did not act upon it.’’[32]

An example:

Abu al-Walid Ibn Abi al-Jarud, a scholar of the Shafi’i school pronounced that al-Shafi’i’s position in the issue of cupping while fasting is that one’s fast is nullified as per the rigorously authenticated hadith of the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him):

‘’The one administering the cupping and the one being cupped have both broken their fasts.’’[33]

However, the view of al-Shafi’i and other scholars including Abu Hanifah, Malik, al-Thawri, and Companions, like Abu Sa`id al-Khudri, Ibn Mas`ud, `A’ishah, and Umm Salamah, and Successors like `Urwah and Sa`id b. Jubayr, was that cupping does not invalidate the fasting nor the one who is administering it.

How did al-Shafi’i and others understand or interpret the above authentic narration?

A number of explanations have been forwarded by these scholars. One plausible justification they gave is that of abrogation. They argued that that the above hadith has been abrogated by other authentic narrations, for example, “The Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) granted permission for a fasting person to sit for cupping.’’[34]

Here is a clear example of how scholars interpreted certain authentic narrations. If a person were to exclaim the slogan of ‘follow sahih hadith only’ and ignore the view of al-Shafi’i and others on this particular issue without knowing and understanding the scholastic heritage and Usul al-Hadith interpretations, how silly would he sound!

1. If indeed the Imams were ignorant of a particular hadith around a given issue the scholars of the school or competent masters of hadith and fiqh later came and adjusted the position of the madhab. This arduous task has been carried out by scholars over the centuries, and of course this can only be done by qualified and competent scholars.

An example:

In the Hanafi school the Sunnah of bathing (ghusl) before going to Friday prayer (Jumu’ah). The position of the school is that the validity of this Sunnah bath is nullified if one’s ablution (wudhu) is broken between the bath and the Friday prayer, in which case one needs to bathe again to attain the reward of the Sunnah.

Yet we find in the Radd al-muhtar of Ibn ‘Abidin, the foremost fatwa resource for the late Hanafi school, that Imam ‘Abd al-Ghani Nabulusi, after mentioning the above ruling, notes that there are two positions about it among scholars of the madhhab: The first is the position of those who hold the legal reason for this bath is purification (Taharah), in which case nullifying one’s ablution between it and the prayer would invalidate it. The second is the position of those who hold that the reason for the bath is cleanliness (nadhafa), in which case nullifying ablution and repeating it between the bath and the prayer would not invalidate it, for the extra ablution, if anything, increases cleanliness. Nabulusi adopts this second position because in his words “the hadiths on this matter imply that the aim is attaining cleanliness alone”,[35] and Ibn ‘Abidin inclines towards it also, because of the Ahadith about the merit of coming to the mosque from the first hour on Friday morning to wait for the congregational prayer (Jumu’ah). Abu Hurayra relates that the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) said:

‘’Whoever bathes on Friday as he would for major ritual impurity (janaba), then goes early [to the mosque] is as though he has sacrificed a she-camel. Whoever goes in the second hour [of daylight] is as though he has sacrificed a cow. Whoever goes in the third hour is as though he has sacrificed a ram. Whoever goes in the fourth hour is as though he has sacrificed a chicken. Whoever goes in the fifth hour is as though he has offered an egg. And when the imam comes out [to begin the sermon], the angels [stop recording, and] come to listen to the remembrance.’’[36]

Ibn ‘Abidin says of Nabulusi’s position (that the bath (ghusl) on Friday is not invalidated by having to renew one’s ablution before the Friday prayer):

‘’It is attested to by the demand to go early to the prayer, best done in the first hour of the day, which extends till sunrise. When doing this, it might prove difficult to keep one’s ablution (wudhu) until the time for the prayer arrives, especially on the longest days of the year. Repeating the bath would be even more arduous, while [Allah says in Surah al-Hajj:] “He has not placed any hardship upon you in religion” (Qur’an 22:78). It might also lead to holding back from going to the bathroom while praying, which is unlawful.’’[37]

Here we see an early position of the Hanafi School (that the Friday bath is nullified by having to renew one’s ablution after it) re-evaluated in light of a hadith by two of the school’s principal later scholars, ‘Abd al-Ghani Nabulusi and Ibn ‘Abidin.

This is not exclusive to the Hanafi madhab but all other schools have similar evaluations and developments made by their leading accolades.[38]

Conclusion:

From the cursory discussion above it is evidently clear that the statements by the four illustrious Imams ‘when a hadith is found to be authentic then that is my adopted position’ and similar remarks are to be understood in the proper context as explained above. A), they were instructions to qualified individuals in fiqh and language. B), they are encouragement for people to study language and fiqh with scholars.

To understand these statement in any other light than the way in which has been clarified is trying to interpolate the comments of the Imams, which no classical scholar understood, to a meaning they did not intend.

Allah knows best.

References:


[1] There has been much debate surrounding the origins of Language. A number of theories have been forwarded. As far as Islam is concerned. It is the believe and conviction of all believers that God, Almighty, taught and instructed Adam (peace be upon him), the first human on earth, the names and manufacturing of all things, “And He taught Adam the names of all things then he presented them to the angels…”  Thus from the Islamic and Qur’anic paradigm language is a divine providence bestowed upon man from the beginning of the human creation and not merely intelligent human codification. The difference between human beings and animal: Human beings, in contrast to other Animals, are capable of far more complex communication and thinking. Communication is not unique to humans, but the level of communication is of such a profoundly more rich and subtle nature as to give rise to a shared conceptual world. This is the one of the most important feature that distinguishes us from the animal kingdom.  The authoritative Atlas of Languages confirms this fact and also the fact that animals can never be taught to speak. ‘’Language is perhaps the most important single characteristic that distinguishes human beings from other animal species. . . . Because of the different structure of the vocal apparatus in humans and chimpanzees, it is not possible for chimpanzees to imitate the sounds of human language, so they have been taught to use gestures or tokens in place of sounds . . . but chimpanzees never attain a level of linguistic complexity beyond the approximate level of a two-year-old child.’’ (Stephen Matthews, Bernard Comrie, and Marcia Polinsky, editors: Atlas of Languages: The Origin and Development of Languages Throughout the World (New York: Facts on File, Inc., 1996), p. 10.)

Similarly, Lewis Thomas, the distinguished medical scientist who was the long-time director and chancellor of the Sloan Kettering Cancer Centre in Manhattan has affirmed that: ‘‘. . . Language is so incomprehensible a problem that the language we use for discussing the matter is itself becoming incomprehensible.’’ (Lewis Thomas, “On Science and Uncertainty,” Discover (vol. 1, October 1980), p. 59).

Dr. Noam Chomsky, Professor of Linguistics at the Massachusetts Institute of Technology, writes, ‘‘Human language appears to be a unique phenomenon, without significant analogue in the animal world. . . . There is no reason to suppose that the “gaps” are bridgeable. There is no more of a basis for assuming an evolutionary development of “higher” from “lower” stages in this case, than there is for assuming an evolutionary development from breathing to walking.’’ (Noam Chomsky, Language and Mind (New York: Harvourt, Brace, Jovan-ovich, 1972), pp. 67, 68).

Not only is there no animal that is capable of achieving anything like human speech, but also there is, at the other end of the scale, no human tribe that does not have a true language. ‘No language-less community has ever been found.’  There are no normal humans that cannot speak and no animals that ever can. This is the great unbridgeable gap between all mankind and every component of the animal kingdom. Therefore language is a unique characteristic of the human creation and cannot be fully and comprehensively imitated by any other known species in the universe.

[2]Ibn ‘Ashur, Maqasid p, 26 IIT,

[3] Ibid

[4] Ibn ‘Ashur, Maqasid p, 27 IIT

[5] Ibid

[6] Hashiya of Ibn ‘Abidin, Vol 1 p, 63. Iqadh Himam Ulil albab by Imam Salih al Fulani, p.62.

[7] Ibid

[8] Iqadh Himam Ulil albab by Imam Salih al Fulani, p, 52

[9] Ibn Abd al Barr, Al-Intiqa fi fadhail ath-thalatha al-aimmah al-fuqaha, p.145.

[10] Al-Bani, Sifat Salatun Nabi, p.46.

[11] Ibid

[12] Iqadh Himam Ulil albab by Imam Salih al Fulani, p, 50.

[13] Ibn Abd al Barr, Al-Intiqa fi fadhail ath-thalatha al-aimmah al-fuqaha, p.144.

[14] Ibn Abd al Barr, Jami’ Bayan al-Ilm wa fadhlihi, Vol 1, p.775 no, 1435.

[15] Al Bani, Sifat Salatun nabi, p.49.

[16] Iqadh Himam Ulil albab by Imam Salih al Fulani, p, 18.

[17] Ibn Naim, Hilyatul Awlaiya, vol 9, p.107.

[18] Ibn Abi Hatim, Adab al-Shafi’I, p.94, al-dhahabi, Siyar ‘alam al-nubala, vol 10, p.35.

[19] Ibn Abi Hatim, Adab al-Shafi’I, p.94, Hilyatul awliya, vol 9 p.107, al-Bayhaqi, Manaqib al-Shafi’i, vol 1 p.473.

[20] Al-Bayhaqi, Manaqib al-Shafi’i, vol 1, p.475, al-Fulani, 63,100.

[21] Ibn al-Qayyim, I’lam al-Muwaqqi’in, vol 2, p.361

[22] Ibid

[23] An-Nawawi, Majmu’, vol 1, p.63

[24] Ibn al-Qayyim, ‘Ilam al-Muwaqi’in, vol 2, p.201

[25] Ibn Abd al-Barr, Jami’ Bayan al-‘Ilm, vol 2, p.1072 no:2107

[26] Ibn al-Jawzi, Manaqib Imam Ahmad, p.172.

[27] Ibn al-Qayyim, ‘Ilam al-Muwaqi’in, vol 2, p. 201

[28] Al-Judai, Usul al-Fiqh, p.381

[29] Cited. Muhammad Ibn Umar al-Razi, Al-Mahsul, ed. Taha Jabir al-Alwani, vol.1, p.547-73.

[30] Al-Nawawi, al-Majmu’ Sharh al-Muhadhdhab (1:64), citing Ibn al-Salah’s Fatawa wa Masa’il (1:54, 1:58-59). Cf. al-Tahanawi, I‘la’ al-Sunan (2:290-291).

[31] Hashiya of Ibn ‘Abidin 1:68

[32] Ibn Abidin, Rasm al-Mufti, p.56.

[33] This is an authentic hadith that has been related by at least fifteen different Companions. The most authentic narrations of these hadith, perhaps, are the ones that reach us from the following Companions: Shidad b. Aws [Sunan Abi Dawud (2368, 2369) and Sunan Ibn Majah (1681)] Thawban [Sunan Abu Dawud (2367, 2370, and 2371) and Sunan Ibn Majah (1680)]. Rafi` b. Khadij [Sunan al-Tirmidhi (774)]. This hadith is also related from Companions like `Ali b. Abi Talib, Sa`d b. Abi Waqqas, `Abd Allah b. `Umar, Ibn `Abbas, Abu Musa al-Ash`ari, Abu Hurayrah, Bilal, Usamah b. Zayd, `A’ishah, and Safiyyah. Its chains of transmission are indeed numerous.

[34] Sunan al-Nasa’i al-Kubra (3224, 3228) and Sahih Ibn Khuzaymah (1967)

[35] Radd al-muhtar (9.00), 1.114

[36] Bukhari (9.00), 2.3–4: 881

[37] Radd al-muhtar (9.00), 1.114

[38] This part was taken from the article linked. For a further detailed discussion please refer here: http://abdullahhasan.net/?p=5285

Sh. Abdullah Hasan graduated with an Imam Diploma, BA and Ijaza Aliyah in Islamic Studies [Theology & Islamic Law, taught completely in Arabic] from a European Islamic seminary. He holds a diploma in Arabic from Zarqa Private University (Jordan), studied at the faculty of fiqh wa usuluhu (Jurisprudence and its principles) at the same university while receiving training in various disciplines privately with some of the leading Scholars of Jordan and the Middle East. He studied Chaplaincy at the Markfield Institute of Higher Education (MIHE). He is a Licensed Islamic Professional Counsellor (LIPC), specialising in youth and marriage therapy. In addition, he is a specialist in Zakat and Islamic philanthropic studies.He served, as an Imam, several Muslim communities in the UK.Sh. Abdullah Hasan has enormous interest and passion in the field of community and people development. He has over 10 years of management, leadership and training experience within the third sector. He is the founder of British Imams and Scholars Contributions & Achievement Awards (BISCA), which is a national platform to celebrate, support & nurture positive leadership within the community. The Founder of British Institutes, Mosques & Association Awards (BIMA), which is national platform celebrating the achievements of mosques and Islamic institutions. He also founded Imams Against Domestic Abuse (IADA), an international coalition of leaders to end domestic abuse, and is a member of the National Council of Imams & Rabbis, UK.,

16 Comments

16 Comments

  1. Avatar

    Qurantutor

    December 4, 2012 at 6:06 AM

    Thanks for such an enlightening piece. it has great many reminders. really my kind of thoughts on the thriftiness.Any notice of fiqh can’t be causing without to be talking concerning the four noteworthy imams of fiqh and their schools of contemplation. Imam Abu Hanifa, Imam Malik ibn Anas,Imam Shafi`i, and Imam Ahmad ibn Hanbal are the radiant stars of the sky of Islamic statute. It is exceptionally imperative to note and acknowledge that notwithstanding the distinctions of conclusion in the matters of fiqh, these favored souls had just the utmost appreciation for one another.

  2. Avatar

    Zemar

    December 4, 2012 at 6:33 PM

    Not bad article overall. A few comments:

    -I think the whole anti-madhab movement is a reaction movement of the extreme madhab-ism taught in certain countries. We all know the fatwa “whoever does not follow a madhab is a kafir” (not saying all muqallids believe this) and a particular time when people of one madhab would not pray behind the imam of another madhab in the haram. I agree that in general being anti-madhab is not correct nor a wise approach.

    -I don’t believe in absolute taqleed, rather, it is restricted to the layman. As for the student of knowledge, he should follow what is in accordance to the Qur’an and Sunnah and that which is stronger. And yes, this is going to take time for him. At times one particular issue may be clear to him but another may not in which he may still be doing taqleed. The problem is that nowadays muqallids have made taqleed unrestricted and absolute. Even if a person becomes a scholar of top notch, they STILL expect him to do taqleed and don’t believe any mujtahids live in our times. This type of thinking developed later on. The early scholars did not have any problem leaving something from their madhab which contradicted their knowledge of a matter. For example:

    At-Tahaawee’s son, ‘Alee narrated from his father that he and another scholar, a judge by the name of Aboo ‘Ubaid ibn Harbawaih would revise their Fiqh together. At-Tahaawee said:

    “Once, Ibn Harbawaih asked me about an issue, and upon hearing my answer exclaimed: “But this is not the view of Aboo Haneefah!” So I said to him:

    “My dear judge, do I have to uphold each and every view of Aboo Haneefah?” Ibn Harbawaih said: “I thought you were one of his blind follwers (or muqallids).” I replied:

    “Does anyone follow blindly (or do taqleed) unless he is afflicted with bias and bigotry?” Ibn Harbawaih said: “Or if he is foolish!”

    Soon this statement travelled around in Egypt until it became a proverb which the people preserved.”

    Reported by Ibn Zoolaaq in Qudaat Misr from at-Tahaawee’s son, as cited by Ibn Hajar in Lisaan-ul-Meezaan (Vol.1, p.626, #771, Daar-ul-Bashaa’ir, Beirut, 1423 AH/2002 CE).

    Such type of thinking has led to fiqh being extremely stagnant. We need to revive this.

    -Also you used lots of quotes from pro-muqallid scholars. It would have been better if you used quotes from the other side as well, otherwise, it makes the article very one-sided and biased.

    -I don’t know how much I agree with “reason has precedence over narrations. Thus, we should follow reason, and not the linguistic evidence of the narration.” If that’s the case I shouldn’t believe texts telling me about existence of Jinns and angels sitting on my left and right writing down my deeds because both of these contradict reason. Rather, narrations are given preference over reason as long as they are authentic.

  3. Avatar

    Mahmud

    December 5, 2012 at 1:39 PM

    Assalamualaikum wa rahmatullahi wa barakatuh

    Also,
    The Messenger of Allah recited this Ayah;

    ﴿اتَّخَذُواْ أَحْبَـرَهُمْ وَرُهْبَـنَهُمْ أَرْبَاباً مِّن دُونِ اللَّهِ﴾

    (They took their rabbis and their monks to be their lords besides Allah). `Adi commented, “I said, `They did not worship them.”’ The Prophet said,

    «بَلَى إِنَّهُمْ حَرَّمُوا عَلَيْهِمُ الْحَلَالَ وَأَحَلُّوا لَهُمُ الْحَرَامَ فَاتَّبَعُوهُمْ فَذَلِكَ عِبَادَتُهُمْ إِيَّاهُم»

    (Yes they did. They (rabbis and monks) prohibited the allowed for them (Christians and Jews) and allowed the prohibited, and they obeyed them. This is how they worshipped them.)
    http://www.qtafsir.com/index.php?option=com_content&task=view&id=2565&Itemid=64

    This religion is not so complicated and difficult that we require scholars for everything. I do not follow a madhab as I do not view it as sunnah. However I don’t go the other extreme and not take from scholars. I am open to viewing various opinions and picking the one which will be best for me inshaa Allah when I meet Allah.

    And I will not stop condemning those who justify riba even though they may say “It is a matter of ijtihad.”

    Allah’s laws have more right to be obeyed than this scholar system that has developed.

  4. Avatar

    Anon

    December 7, 2012 at 5:04 AM

    Asalamualaykum wrwb,

    This was a very important and well written article. JazakAllah khair. Growing up in Saudi, I never understood why people followed madhabs. Then, after I started studying Shaf’i fiqh properly, my eyes opened up. It was so humbling.

    Just like everything else, the more you learn, the more you realize how ignorant you were and still are. There is so much to learn. A person could never read the Quran and Hadith and understand the complexities and structure of fiqh. It is truly an amazing Islamic science. And it needs just as much effort as mastering the basic levels of balagha, nahw, mustalah al-hadith, mantiq, tafseer, and every other science. Our scholars were unbelievably intelligent and amazing people, and the work they did is uncomparable. Look at Nawawi’s Riyad-us-Saliheen, and what a beloved book that is to all Muslims. He died in his forties and yet his legacy is precious. Scholars nowadays are not like the scholars of the past. With all our advanced technology, we can’t produce anything as pure and beautiful as Sahih Al Bukhari.

    Whenever we tell our shuyookh that we are amazed by their knowledge and so on, they always look so sad and quote this Arabic poem that (roughly translated) says : When the water ran out, the people had to resort to the dust.

    One of my teachers warns us often “We don’t say like the people nowadays say : They are men, and we’re men too!” and I think the secret to understanding this is actually learning some the legacies those men – rahimahumullah – left behind. When you learn a little bit of it, you’ll realize that you could just never do that. In grade school and high school growing up, I always thought I was pretty smart as far as things go, but when you learn from real scholars you’ll realize is that first – you’re not smart at all because they were veritable geniuses, and secondly – all knowledge is dependent on tawfeeq that comes out of one’s relationship with Allah – and we all know that the best were in the time of our beloved prophet, sal Allahu alayhi wa sallam, and then those who followed after, and then those who followed after.

    All of the scholars of the past (not just fiqh scholars) followed a madhab. Hadith scholars, Bukhari, Muslim, (ironic thinking that most people who avoid madhabs are getting their hadith from these complilations) etc, all of the Saheeh Sitta, Tafseer scholars, all of them. Did they understand something we didn’t? Abandoning madhabs and starting from scratch is a very new thing.

    I want to follow in the footsteps of the great people whose knowledge I take from and whose lives I hope to emulate. People who don’t understand madhabs should seriously think about this.

    • Avatar

      Mahmud

      December 10, 2012 at 9:06 PM

      Assalamualaikum wa rahmatullahi wa barakatuh

      And I want to follow in the footsteps of Nabi sallallahualayhiwasalam whose is superior to all of these men and it is he who I hope to emulate. I was never ordered to follow a madhab. I was ordered to follow Nabi sallalahualayhiwasalam.

      And I don’t believe I am doomed to be outstripped by the earliest generations. No-on the contrary I will definitely become nearest to Allah and Rasulullah in the akhirah inshaa Allah.

      Assalamualaikum wa rahmatullahi wa barakatuh

      • Avatar

        Abidawud

        January 24, 2013 at 1:16 AM

        Assalaamualaikum warahmatullahi wabarakatuh, it goes without saying that to follow madhab / scholars is obviously to follow Rasulullah sallallaahu alaihi wassalam in a correct way, needless to say that these great scholars of madhab knows better how to follow Rasulullah sallallaahu alaihi wassalam. If great scholar of hadits and fiqh of the past confined themselves to a mdhab eventhoguh they were qualified to make ijtihad, then who are we with our limited knowledge. may Allah SWT guide us to the right path.

      • Avatar

        ALI

        August 13, 2016 at 10:49 AM

        YES MUHAMMAD IT NOT OBLIGATORY TO FOLLOW MADHABS NEITHER IT WAS RECOMMENDED,THERE IS NO SUCH
        [PREDICTION[PESHINGOI]OR FARMAN FROM BY ALLAH AND HIS RASOOL SALALAHAUALAHAIWASALAM]THAT 4 IMAMS WILL
        COME AND YOU HAVE TO FOLLOW EITHER OF THE 4 INSTEAD 4 IMAMS WERE SALAFIS WHOSE FOREFATHERS ADHERED TO
        THE 1ST 3 GENERATIONS TEACHINGS AND DID NOT HAVE ANY MADHAB AS SUCH- IF THE MUQALIDS SAY THEY ARE ON THE RIGHT PATH-THEY ARE CLAIMING THIS TO RUN THEIR SHOPS MADE AFTER 5TH HIJRI ESTABLISHED IN 11 TH CENTURY BY THE TURKEY
        https://en.wikipedia.org/wiki/Hanafi

        http://www.spubs.com/sps/sp.cfm?subsecID=MNJ06&articleID=MNJ060002&pfriend=

    • Avatar

      poohead

      May 16, 2014 at 5:33 PM

      Enlightning or brainwashing? Think about it… “Humbling” as you quote. Well I don’t think of your character as very “humbling” when you speak like ” ironic thinking that most people who avoid madhabs are getting their hadith from these complilations” now THAT sounds just pure arrogant. There are two sides of a story and just growing up in Saudi doesn’t mean you’ve experianced the other. Stop talking about things you don’t know. Thank you.
      Salam

  5. Avatar

    Ok

    December 10, 2012 at 11:04 PM

    Ghusl does not ranslate to bathing. Ghusl has the following points.

    1. Clean any impurity on the body
    2. Gargle 3 times with water that fills the whole mouth
    3. Rinse the nose 3 times where it reaches to the back
    4. Wash the body in a way where not an inch of the entire body is left dry.

    This will enable purity after which a person can pray.

  6. Avatar

    Arif

    December 15, 2012 at 6:16 PM

    Who said that only limited individuals are qualified to take directly from Qura’n and Sunnah ? Isn’t Qura’n revealed for everyone ? Didn’t Allah say that he has made Qura’n easy to understand ? Then I do not understand why some people are bent on complicating this simple religion..

    • Avatar

      S.J

      December 22, 2012 at 2:19 PM

      Asalamu Alaikum Arif,

      It’s funny because I was just thinking about this issue very recently and I think it confuses folks a bit. Yes, the Quran was revealed for everyone and everyone should have a deep personal, reflective relationship with it that will strengthen/boost your iman/yaqeen/taqwa/love/awe/etc, one of taddabur.

      The scholars that this article alludes to use the Quran and other sources as a means of deriving fiqh and ahkaam which requires some kind of training or specialization. If things were always as clear cut and simple, then differences would not arise [unless you want to attribute those differences to the scholars’ lack of intelligence, sincerity, or bad/personal motives.. astaghfirrlah]

      Wa Salaam :-)

    • Avatar

      Asad

      January 27, 2013 at 6:37 PM

      Everybody can take from the Qur’an and Sunnah. But if you mean that everyone should be able to derive rulings on halal and haraam directly from the Qur’an and Sunnah. Then it’s clear that this is obviously not the case unless they know the sciences of the Arabic language, the Qur’an it’s rulings, the verses abrogating and abrogated, the sciences of Hadith and the sciences of legal methodology in interpreting the Qur’an and Hadith. If they know all these sciences then well and good.

      Also you said, “didn’t Allah say he made the Qur’an easy to understand?” No, actually the Qur’an doesn’t say that. It says that Allah made the Qur’an easy to remember. 54:17. That is, Allah made the Qur’an easy to remember Him. When reciting the Qur’an it’s easy to remember Allah, His Attributes, Jannah and Naar.

      But does that mean we’ll easily understand the division of shares for people in a will? No.

      Also Allah said he made the Qur’an clear – mubeen. But clarity does not necessarily mean simplicity. The solution to a complex calculus problem could be clear, that doesn’t mean it will be as simple as 2+2 = 4.

      There are scholars of tafsir who have struggled with the meaning of ayat of the Qur’an for years. This is after years of study and solid grounding in the Arabic language.

      How can we as laymen be so arrogant to think that we know better than them with our English translations of the Qur’an?

      • Avatar

        mustafa

        January 28, 2013 at 2:51 PM

        Assalamualaikum wa rahmatullahi wa barakatuh

        The problem occurs when we find justifications for riba, marrying without a wali, drinking wine, etc.

  7. Avatar

    Moegammad Allie

    August 30, 2015 at 2:58 AM

    I am in agreement. keep up the good work. Inshaa Allah. This is good and real Tabligh.

  8. Avatar

    Abjal

    March 2, 2016 at 5:35 AM

    Subhanallah we have people today trying to bring their own way understanding Quran and sunnah. I’m more comfortable following these madhabs than people of todays time. Just research on the adhab and the understanding and stories of these 4 scholars and you’ll understand why these scholars were more pure than today’s generation of fitnah and fasad

  9. Avatar

    Peace

    November 21, 2016 at 9:29 AM

    MashaAllah very good article !

    Umar(ra) once tried to set the cap for dowry charged by women– When a women challenged him he said that he was incorrect and the women is right.

    When the imams emphasis to investigate, analyze and follow the saheeh hadith, they are still some who follow unapproved hadeed and purchase the curse of the Imams and Allah.

    May Allah unite us all !

Leave a Reply

Your email address will not be published. Required fields are marked *

#Islam

Shaykh Hamza Yusuf And The Question of Rebellion In The Islamic Tradition

Dr Usaama al-Azami

Published

on

Sepoy rebellion, Shaykh Hamza

In recent years, Shaykh Hamza Yusuf, a notable Islamic scholar from North America, has gained global prominence by supporting efforts by the United Arab Emirates (UAE) to deal with the fallout of the Arab revolutions. The UAE is a Middle Eastern autocracy that has been the chief strategist behind quelling the Arab revolutionary aspiration for accountable government in the region. Shaykh Hamza views himself as helping prevent the region from falling into chaos by supporting one of its influential autocratic states. However, more recently, he has become embroiled in another controversy because of comments he made regarding the Syrian revolution in 2016 that surfaced online earlier this week and for which he has since apologised. I will not discuss these comments directly in this article, but the present piece does have a bearing on the issue of revolution as it addresses the question of how Islamic scholars have traditionally responded to tyranny. Thus, in what follows, I somewhat narrowly focus on another recent recording of Shaykh Hamza that has been published by a third party in the past couple of weeks entitled: “Hamza Yusuf’s response to the criticism for working with Trump administration”. While it was published online at the end of August 2019, the short clip may, in fact, predate the Trump controversy, as it only addresses the more general charge that Shaykh Hamza is supportive of tyrannical governments.

Thus, despite its title, the primary focus of the recording is what the Islamic tradition purportedly says about the duty of Muslims to render virtually unconditional obedience to even the most tyrannical of rulers. In what follows, I argue that Shaykh Hamza’s contention that the Islamic tradition has uniformly called for rendering obedience to tyrannical rule—a contention that he has been repeating for many years—is inaccurate. Indeed, it is so demonstrably inaccurate that one wonders how a scholar as learned as Shaykh Hamza can portray it as the mainstream interpretation of the Islamic tradition rather than as representing a particularly selective reading of fourteen hundred years of scholarship. Rather than rest on this claim, I will attempt to demonstrate this in what follows. (Note: this article was sent to Shaykh Hamza for comment at the beginning of this month, but he has not replied in time for publication.)

Opposing all government vs opposing a government

Shaykh Hamza argues that “the Islamic tradition” demands that one render virtually absolute obedience to one’s rulers. He bases this assertion on a number of grounds, each of which I will address in turn. Firstly, he argues that Islam requires government, because the opposite of having a government would be a state of chaos. This is, however, to mischaracterise the arguments of the majority of mainstream scholars in Islamic history down to the present who, following explicit Qur’anic and Prophetic teachings, opposed supporting tyrannical rulers. None of these scholars ever advocated the removal of government altogether. They only opposed tyranny. For some reason that is difficult to account for, Shaykh Hamza does not, in addressing the arguments of his interlocutors, make the straightforward distinction between opposing tyranny, and opposing the existence of any government at all.

A complex tradition

Rather than support these tyrannical governments, the Islamic tradition provides a variety of responses to how one should oppose such governments, ranging from the more quietist—opposing them only in one’s heart—to the more activist—opposing them through armed rebellion. The majority of later scholars, including masters such as al-Ghazzali (d. 505/1111), Ibn Rajab al-Hanbali (d. 795/1393), and Ibn Hajar al-‘Asqalani (d. 852/1449) appear to have fallen somewhere between these two poles, advocating rebellion only in limited circumstances, and mostly advising a vocally critical posture towards tyranny. Of course, some early scholars, such as the sanctified member of the Prophetic Household, Sayyiduna Husayn (d. 61/680) had engaged in armed opposition to the tyranny of the Umayyads resulting in his martyrdom. Similarly, the Companion ‘Abdullah b. Zubayr (d. 73/692), grandson of Abu Bakr (d. 13/634), and son of al-Zubayr b. al-‘Awwam (d. 36/656), two of the Ten Companions Promised Paradise, had established a Caliphate based in Makkah that militarily tried to unseat the Umayyad Caliphal counter-claimant.

However, the model of outright military rebellion adopted by these illustrious scholars was generally relinquished in later centuries in favour of other forms of resisting tyranny. This notwithstanding, I will try to show that the principle of vocally resisting tyranny has always remained at the heart of the Islamic tradition contrary to the contentions of Shaykh Hamza. Indeed, I argue that the suggestion that Shaykh Hamza’s work with the UAE, an especially oppressive regime in the Arab world, is somehow backed by the Islamic tradition can only be read as a mischaracterisation of this tradition. He only explicitly cites two scholars from Islamic history to support his contention, namely Shaykhs Ahmad Zarruq (d. 899/1493) and Abu Bakr al-Turtushi (d. 520/1126), both of whom were notable Maliki scholars from the Islamic West. Two scholars of the same legal school, from roughly the same relatively peripheral geographic region, living roughly four hundred years apart, cannot fairly be used to represent the swathe of Islamic views to be found over fourteen hundred years in lands as far-flung as India to the east, Russia to the north, and southern Africa to the south.

What does the tradition actually say?

Let me briefly illustrate the diversity of opinion on this issue within the Islamic tradition by citing several more prominent and more influential figures from the same tradition alongside their very different stances on the issue of how one ought to respond to tyrannical rulers. Most of the Four Imams are in fact reported to have supported rebellion (khuruj) which is, by definition, armed. A good summary of their positions is found in the excellent study in Arabic by Shaykh ‘Abdullah al-Dumayji, who is himself opposed to rebellion, but who notes that outright rebellion against tyrannical rule was in fact encouraged by Abu Hanifa (d. 150/767) and Malik (d. 179/795), and is narrated as one of the legal positions adopted by al-Shafi‘i (d. 204/820) and Ahmad b. Hanbal (d. 241/855). As these scholars’ legal ideas developed and matured into schools of thought, many later adherents also maintained similar positions to those attributed to the founders of these schools. To avoid suggesting that armed rebellion against tyrants was the dominant position of the later Islamic tradition, let me preface this section with a note from Holberg Prize-winning Islamic historian, Michael Cook, who notes in his magisterial study of the doctrine of commanding right and forbidding wrong that “in the face of the delinquency of the ruler, there is a clear mainstream position [in the Islamic tradition]: rebuke is endorsed while [armed] rebellion is rejected.”

But there were also clearly plenty of outliers, or more qualified endorsements of rebellion against tyrants, as well as the frequent disavowal of the obligation to render them any obedience. Thus for the Malikis, one can find Qadi Abu Bakr b. al-‘Arabi (d. 543/1148) who asserts that advocating rebellion against tyrants is the main position of the madhhab; similarly among later Hanafis, one finds Qadi Abu Bakr al-Jassas (d. 370/981); for the Hanbalis, one may cite the positions of the prolific scholars Imam Ibn ‘Aqil (d. 513/1119), Ibn al-Jawzi (d. 597/1201), and in a more qualified sense, Ibn Rajab al-Hanbali. Among later Shafi‘is, I have found less explicit discussions of rebellion in my limited search, but a prominent Shafi‘i like the influential exegete and theologian al-Fakhr al-Razi (d. 606/1210) makes explicit, contrary to Shaykh Hamza’s claims, that not only is obeying rulers not an obligation, in fact “most of the time it is prohibited, since they command to nothing but tyranny.” This is similar in ways to the stance of other great Shafi‘is such as al-hafiz Ibn Hajar al-‘Asqalani who notes concerning tyrannical rulers (umara’ al-jawr) that the ulama state that “if it is possible to depose them without fitna and oppression, it is an obligation to do so. Otherwise, it is obligatory to be patient.” It is worth noting that the normative influence of such a statement cited by Ibn Hajar transcends the Shafi‘i school given that it is made in his influential commentary on Sahih al-Bukhari. Once again, contrary to the assertions of Shaykh Hamza, there is nothing to suggest that any of the illustrious scholars who supported rebellion against tyrannical rulers was advocating the anarchist removal of all government. Rather they were explicitly advocating the replacement of a tyrant with a just ruler where this was possible.

Al-Ghazzali on confronting tyrants

A final example may be taken from the writing of Imam al-Ghazzali, an exceptionally influential scholar in the Islamic tradition who Shaykh Hamza particularly admires. On al-Ghazzali, who is generally opposed to rebellion but not other forms of opposition to tyranny, I would like to once again cite the historian Michael Cook. In his previously cited work, after an extensive discussion of al-Ghazzali’s articulation of the doctrine of commanding right and forbidding wrong, Cook concludes (p. 456):

As we have seen, his views on this subject are marked by a certain flirtation with radicalism. In this Ghazzālī may have owed something to his teacher Juwaynī, and he may also have been reacting to the Ḥanafī chauvinism of the Seljūq rulers of his day. The duty, of course, extends to everyone, not just rulers and scholars. More remarkably, he is prepared to allow individual subjects to have recourse to weapons where necessary, and even to sanction the formation of armed bands to implement the duty without the permission of the ruler. And while there is no question of countenancing rebellion, Ghazzālī is no accommodationist: he displays great enthusiasm for men who take their lives in their hands and rebuke unjust rulers in harsh and uncompromising language.

Most of the material Cook bases his discussion upon is taken from al-Ghazzali’s magnum opus, The Revival of the Religious Sciences. Such works once again demonstrate that the Islamic tradition, or great Sufi masters and their masterworks, cannot be the basis for the supportive attitude towards tyrannical rule on the part of a minority of modern scholars.

Modern discontinuities and their high stakes

But modern times give rise to certain changes that also merit our attention. In modern times, new technologies of governance, such as democracy, have gone some way to dealing with challenges such as the management of the transition of power without social breakdown and the loss of life, as well as other forms of accountability that are not possible in absolute autocracies. For their part, absolute autocracies have had their tyrannical dimensions amplified with Orwellian technologies that invade private spaces and facilitate barbaric forms of torture and inhumane degradation on a scale that was likely unimaginable to premodern scholars. The stakes of a scholar’s decision of whether to support autocracy or democracy could not be higher.

Modern scholars like Shaykh Yusuf al-Qaradawi (b. 1345/1926), someone who Shaykh Hamza’s own mentor, Shaykh Abdullah b. Bayyah (b. 1353f./1935) considered a teacher until fairly recently, has advocated for an Islamic conception of democracy as a possible means to deal with the problem of tyranny that plagues much of the Muslim world. He is hardly the only scholar to do so. And in contrast with some of the scholars of the past who advocated armed rebellion in response to tyranny, most contemporary scholars supporting the Arab revolutions have argued for peaceful political change wherever possible. They have advocated for peaceful protest in opposition to tyranny. Where this devolved into violence in places like Libya, Syria, and Yemen, this was generally because of the disproportionately violent responses of regimes to peaceful protests.

Shaykh Hamza on the nature of government

For Shaykh Hamza, the fault here appears to lie with the peaceful protestors for provoking these governments to crush them. Such a conception of the dynamics of protest appears to assume that the autocratic governmental response to this is a natural law akin to cause and effect. The logic would seem to be: if one peacefully calls for reform and one is murdered in cold blood by a tyrannical government, then one has only oneself to blame. Governments, according to this viewpoint, have no choice but to be murderous and tyrannical. But in an age in which nearly half of the world’s governments are democracies, however flawed at times, why not aspire to greater accountability and less violent forms of governance than outright military dictatorship?

Rather than ask this question, Shaykh Hamza Yusuf appears to be willing to defend autocracy no matter what they do on the grounds that government, in principle, is what is at stake. Indeed, in defending government as necessary and a blessing, he rhetorically challenges his critics to “ask the people of Libya whether government is a blessing; ask the people of Yemen whether government is a blessing; ask the people of Syria whether government is a blessing?” The tragic irony of such statements is that these countries have, in part, been destroyed because of the interventions of a government, one for which Shaykh Hamza serves as an official, namely the UAE. This government has one of the most aggressive foreign policies in the region and has been instrumental in the failure of representative governments and the survival of tyrannical regimes throughout the Middle East.

Where do we go from here?

In summary, Shaykh Hamza’s critics are not concerned that he is “supporting governments,” rather they are concerned that for the last few years, he has found himself supporting bad government and effectively opposing the potential for good government in a region that is desperately in need of it. And while he may view himself as, in fact, supporting stability in the region by supporting the UAE, such a view is difficult if not impossible to reconcile with the evidence. Given his working relationship with the UAE government, perhaps Shaykh Hamza could use his position to remind the UAE of the blessing of government in an effort to stop them from destroying the governments in the region through proxy wars that result in death on an epic scale. If he is unable to do this, then the most honourable thing to do under such circumstances would be to withdraw from such political affiliations and use all of his influence and abilities to call for genuine accountability in the region in the same way that he is currently using his influence and abilities to provide cover, even if unwittingly, for the UAE’s oppression.

And Allah knows best.

Continue Reading

#Islam

Can Women Attend The Burial Of The Deceased?

A short survey on what leading scholars and the four schools of law (madhhabs) have to say on the issue

Dr Usaama al-Azami

Published

on

Quran at graveyard, woman attend burial

A few weeks ago, my brother passed away, may Allah have mercy on his soul. By Allah’s grace, his funeral was well-attended by many friends, relatives, and students of his, including a number of women. In this context, someone asked me about the Sharia’s guidance regarding women attending the burial of the deceased, and in what follows I consider what leading scholars and the four schools of law (madhhabs) have to say on the issue. The short survey below is by no means exhaustive, something that will need to be left for a much longer piece, but I hope it can be considered representative for the purposes of a general readership. 

This is not a fatwa, but rather a brief outline of what past scholars have argued to be the case with some suggestions as to how this might be understood in modern times. Finally, I should note that this is a discussion about accompanying the deceased to their final resting place (ittiba‘/tashyi‘ al-jinaza) after the conducting of funeral prayers (salat al-janaza). Accompanying the deceased on the part of women is considered more contentious than simply attending the funeral prayer, so in general, jurists who permit such accompaniment would allow for attending the prayer, while jurists who do not permit accompaniment of the deceased may be more reluctant to permit prayer. Whatever the specific cases may be, I do not go into this discussion below.

Key positions and evidence

In brief, I have been able to discern three general positions regarding women accompanying the deceased until they are buried: 1. A clear majority of scholars indicate that women are permitted to attend the burial of the deceased, but it is generally discouraged (makruh). 2. Some scholars permitted elderly women’s attendance of the burial unconditionally. 3. Others prohibited all women’s attendance unconditionally.

Overall, it is clear that most schools have permitted women’s attendance of burial, with most of these scholars discouraging it for reasons we shall consider below. The notion that women should not attend the burial of the deceased will thus clearly be shown to be a minority position in the tradition, past and present. Being a minority position does not mean it cannot be practiced, as we will consider in due course. The evidence from the Sunnah is the main legal basis for the ruling, and I shall now consider the most authentic hadiths on the matter.

The general rule for legal commands is that they apply to both genders equally. Accordingly, in a hadith narrated by Bukhari and Muslim, the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) strongly encouraged attending the burial of the deceased. That the ruling for women would be one of discouragement (karaha) rather than of encouragement (istihbab) would thus necessarily arise from countervailing evidence. This may be found in another hadith narrated by both of the earlier authorities. This short hadith is worth quoting in full: 

(‏متفق عليه‏) قالت أم عطية: نهينا عن اتباع الجنائز، ولم يعزم علينا

In translation, this reads: Umm ‘Atiyya said, “We were prohibited from following the funeral procession, but it was not insisted upon.”

Interpreting the evidence

The Sharia’s ruling on this matter hinges on how this hadith is understood. On this point, scholars of various schools have adopted a range of positions as outlined earlier. But on the specifics of how the wording of the hadith should be understood, it is worth considering the reading of one of the towering figures of hadith studies, Ibn Hajar al-‘Asqalani (d. 852/1449). In his authoritative commentary on Sahih al-Bukhari entitled Fath al-Bari, he glosses the phrase in the aforementioned hadith “but it was not insisted upon” as meaning, “the prohibition was not insisted upon.” He adds: “It is as though she is saying: ‘it was discouraged for us to follow the funeral procession, without it being prohibited.’”

The hadith has, however, been interpreted in various ways by the schools of law. A useful summary of these interpretations may be found in encyclopedic works of fiqh written in recent decades. In his al-Fiqh al-Islami wa-Adillatuhu, the prolific Syrian scholar Wahba al-Zuhayli (d. 1436/2015) notes (on p. 518) that the majority of jurists consider women’s joining the funeral procession to be mildly discouraged (makruh tanzihi) on the basis of the aforementioned hadith of Umm ‘Atiyya. However, he adds, the Hanafis have historically considered it prohibitively discouraged (makruh tahrimi) on the basis of another hadith in which the Prophet reportedly told a group of women who were awaiting a funeral procession, “Return with sins and without reward.”

Al-Zuhayli inclines towards this ruling despite noting in a footnote that the hadith he has just mentioned is weak (da‘if) in its attribution to the Prophet. However, he also adds that the Malikis permitted elderly women to attend the burial of the deceased unconditionally, and also young women from whom no fitna was feared. What constitutes fitna is not generally specified in these discussions and perhaps needs further study, but one contemporary Hanafi defines it as “intermingling with the opposite sex,” and thus suggests that where there is no such intermingling between members of the opposite sex, it is permissible for young women to attend funerals and burials.

Another valuable encyclopedic source for learning about the juristic rulings of various schools and individual scholars is the important 45-volume al-Mawsu‘a al-Fiqhiyya compiled by a team of scholars and published by the Kuwaiti Ministry of Endowments a quarter of a century ago. In its section on this issue, it notes that the Hanafis prohibitively discourage women’s attendance of the funeral procession, the Shafi‘is mildly discourage it, the Malikis permit it where there is no fear of fitna, and the Hanbalis mildly discourage it. The reasoning behind these positions may be found in the Arabic original, and ought to be made available in English by Muslims in the West investing in translating such voluminous works into English. 

From the above, we may gather that of the four schools, only the pre-modern Hanafis prohibit women’s attendance of funeral processions. I have already indicated one example of a modern Hanafi who moves closer to the position of the less restrictive schools in this issue, but it is worth highlighting another. Shaykh Nur al-Din ‘Itr (b. 1355/1937), one of the greatest Hanafi hadith experts alive today, in his commentary on the hadith of Umm ‘Atiyya writes that the report indicates that women’s attending a funeral procession is only mildly discouraged (makruh tanzihi). Additionally, in a footnote, he criticises a contemporary who interprets the hadith as indicating prohibition and then proceeds to cite the less restrictive Maliki position with apparent approval.

The fiqh of modernity

In none of the above am I necessarily arguing that one of these positions is stronger than the other. I present these so that people may be familiar with the range of opinions on the matter in the Islamic tradition. However, this range also indicates the existence of legitimate difference of opinion that should prevent holders of one position from criticising those who follow one of the legitimate alternatives with the unfounded charge that they are not following the Qur’an and Sunna.

Furthermore, there are often interesting assumptions embedded in the premodern juristic tradition which modern Muslims find themselves out of step with, such as the assumption that women should generally stay at home. This is clearly an expectation in some of the fiqh literature, and in modern times, we sometimes find that this results in incoherent legal positions being advocated in Muslim communities. We find, for example, that in much of the premodern fiqh literature, Hanafis prohibit women from attending the mosque for fear of fitna, while we live in times in which women frequently work outside the home. As one of my teachers in fiqh, the Oxford-based Hanafi jurist Shaykh Mohammad Akram Nadwi, once remarked in class, is it not absurd for a scholar to prohibit women from attending the mosque for fear of fitna while none of these scholars would prohibit a woman from going to a mall/shopping centre?

This underlines the need for balanced fiqh that is suited to our times, one that allows both men and women to participate in spiritually elevated activities, such as going to the mosque and attending funerals while observing the appropriate Islamic decorum, so that the rest of their lives may be inspired by such actions. The answer to modernity’s generalised spiritual malaise is not the shutting out of opportunities for spiritual growth, but rather its opposite. This will only come about when Muslims, individually and communally, invest more of their energy in reflecting on how they can faithfully live according to the Qur’an and Sunna in contexts very different to those in which the ulama of past centuries resided.

And God knows best.

Continue Reading

#Islam

Reflections on Muslim Approaches to the Abortion Debate: The Problem of Narrow Conceptualization

American Muslims must go beyond simplistic and emotionally-charged approaches to the abortion question.

Shaykh Salman Younas

Published

on

Abortion

“Islam is the golden mean between all ethical extremes’ is what certain Muslims would assert… This moral assumption isn’t far from the truth.”

Shaykh Abdullah Hamid Ali in A Word on Muslim Attitudes Toward Abortion

“The golden mean is kind of a summit, and it is a struggle to get there. The ego does not want balance because you have to think and make sacrifices.”

Shaykh Abdal Hakim Murad in Paradigms of Leadership (6)

A few months ago, Governor Kay Ivey signed into law House Bill 134, or the Human Life Protection Act, which prohibited all abortion in the state of Alabama except in cases where it was deemed necessary to prevent a serious health risk to the mother. The bill additionally criminalized abortion or any attempt to carry it out in situations deemed non-necessary. A motion to exempt rape and incest victims from this law was defeated in the Alabama state senate, which give the state the (dubious) distinction of possessing one of the most restrictive abortion laws in America. This move by Alabama to place extreme restrictions on abortion followed a spate of similar legislative moves by other states, such as Georgia, Kentucky, and Mississippi.

This escalation in anti-abortion legislation occasioned intense debate within the Muslim community.[1] Muslims who self-identify as progressives chanted the familiar mantra of “my body, my choice” to affirm a notion of personal rights and bodily autonomy in defending a woman’s right to choose. The ideological underpinnings of this view are extremely problematic from a theological perspective, and the practical policies arising from it that sanction even late-term abortions contravene the near-consensus position of classical jurists and is rightly seen as an assault on inviolable human life. For this reason, this essay will not pay any particular attention to this view.

Several people pushed back against this permissive attitude by arguing that abortion is essentially prohibited in Islam in all but the direst of situations, such as when the life of the mother is at genuine risk. This opinion has a sound precedent in the legal tradition and is the mainstream view of some of the legal schools, but it has often been presented in a manner that fails to acknowledge the normative pluralism that exists on the matter in the shariah and rather perniciously presents these alternative opinions as ‘liberal’ or ‘progressive’. Similarly, those who favour the more lenient view found in other legal schools are often seen characterizing the stricter opinion as ‘right-wing’ or reflective of the Christianization of Islamic law. Despite having legal precedent on their side, both groups engaged the abortion question in a manner that was rather superficial and fundamentally problematic.

Abortion

Did Jurists Only Permit Abortion in ‘Dire’ Circumstances?

I will begin this essay by offering a corrective to the mistaken notion that classical jurists only permitted abortions in cases of necessity, an assertion that has become very common in current Muslim discourse on abortion in America. One need not look much further than the Ḥanafī school to realize that this claim is incorrect. Though there are opinions within the school that only permit abortion before 120 days with the existence of a valid excuse, the view of several early leading authorities was that abortion was unconditionally permissible (mubāḥ) before this period and/or prior to the physical form and features of a fetus becoming clearly discernible.[2] In his encyclopaedic work al-Muḥīṭ al-Burhānī, Burhān al-Dīn ibn Māza (d. 616/1219) presents two main opinions on abortion in the school:

(i) It is permitted “as long as some physical human features are not clearly discernible because if these features are not discernible, the fetus is not a child (walad)” as per Fatāwā Ahl al-Samarqand. Some scholars asserted that this occurs at 120 days,[3] while others stated that this assertion, though incorrect, indicated that by discernibility jurists intended ensoulment.[4]

(ii) It is disliked because once conception occurs, the natural prognostication is life and so the fetus is granted this ruling at the moment of conception itself. This was the view of ʿAlī ibn Mūsā al-Qummī (d. 305/917-18).[5]

The first opinion of unconditional permissibility was not a solitary one in the school. It was forwarded by many of the foremost Ḥanafī authorities, such as Ḥussām al-Dīn ibn Māza (d. 536/1141),[6] Raḍī al-Dīn al-Sarakhsī (d. 575/1175),[7] Jamāl al-Dīn al-Ghaznawī (d. 593/1196),[8] Zayn al-Dīn al-Rāzī (d. 666/1267),[9] ʿAbd Allāh ibn Maḥmūd al-Mawṣilī (d. 683/1284),[10] Fakhr al-Dīn al-Zaylaʿī (d. 743/1343),[11] Qiwām al-Dīn al-Kākī (749/1348),[12] Jalāl al-Dīn al-Khawārizmī (d. 767/1365),[13] Kamāl ibn al-Humām (d. 861/1457),[14] Muḥyī al-Dīn Jawīzāda (d. 954/1547),[15] Muḥammad ibn ʿAlī al-Ḥaṣkafī (d. 1088/1677),[16] and several others.[17] The reasoning underlying this view was that prior to a specific period (whether defined by days or by fetal development), a fetus is not a ‘child’ or ‘person’.[18] Therefore, no ruling is attached to it at this stage.[19]

Another opinion in the school, and one that has gained wide acceptance amongst contemporary Ḥanafī jurists, argued that abortion prior to 120 days was disliked and sinful unless carried out with a valid excuse. This view was most famously expressed by Fakhr al-Dīn Qāḍīkhān (d. 592/1196) in his Fatāwā and subsequently supported by the likes of Ibn Wahbān (d. 768/1367),[20] Ibn Nujaym (d. 970/1563),[21] and Ibn ʿĀbidīn (d. 1252/1836).[22] These sources, however, do not define or fully flesh out what constitutes an excuse, sufficing mainly with a single example as illustrative of a case where abortion would be permitted, namely when a woman ceases to produce milk on account of pregnancy and her husband is unable to provide an alternative source of sustenance for their child and fears his or her perishing. Cases of rape, incest, adultery, and other possible excuses are not discussed by most of these authors, and it is not clear whether they would have deemed these valid excuses or not.[23]

The Ḥanafī school, therefore, had three main opinions on the issue: unconditionally permissible prior to a specific time period; unconditionally disliked; and conditionally permissible prior to a specific time period. Of the three, the first view seems to have been the dominant one in the school and held by multiple authorities in virtually every century. The view of conditional permissibility was also a strong one and notably adopted by several later jurists. It is also the view that has gained currency among modern Ḥanafī scholars who are generally not seen forwarding the view of unconditional permissibility.

Some Contemporary Views on Abortion

A wide range of opinions is also found in the discourse of contemporary jurists. Shaykh Muṣṭafā Zarqā (d. 1999) presented a gradated scheme where abortion prior to 40 days was permitted without a “severe excuse”, which included “undertaking necessary travel where pregnancy and giving birth would prove a hindrance, such as for education or for work that requires a couple to move.”[24] He also considered financial strain arising from a child as a valid excuse during this limited time period. According to him, the threshold for a valid excuse would become higher as the pregnancy proceeded beyond 40 days.

Muftī Maḥmūd Ḥasan Gangohī (d. 1996), one of the foremost scholars of the Deobandī school, permitted abortions when conception occurred out of wedlock (zinā).[25]

Muftī Salmān Manṣurpūrī states emphatically that the basis is that abortion is impermissible unless there is a valid excuse before 120 days, such as the life of the mother being at risk, serious consequences to her general health, an actual inability to bear pregnancy, clear harm or danger to one’s current children, and adultery, but not fear of economic difficulty nor the decision not to have children.[26]

In Fatāwā Dār al-ʿUlūm Zakariyya, Muftī Raḍā’ al-Ḥaqq states that a fetus diagnosed by medical professionals with an incurable and serious disorder that will prove to be an extreme burden on the child and its family is permitted to abort prior to 120 days as per the Islamic Fiqh Academy in Mecca.[27] Elsewhere, he divides pregnancy into three stages. The first stage is when the general form and facial features of the fetus take shape but prior to the formation of its limbs. At this stage, it is permitted to carry out on abortion with a valid and established excuse, such as the fetus suffering from a “dangerous hereditary disease”, “physical abnormality/deformity”, the life of the mother being at risk, or reasonably-established fear of the mother’s “physical and mental health” being impacted. The second stage is when the limbs of the fetus are clearly formed and discernible, and the third stage is after 120 days. In both these stages, the respected Muftī rules that abortion is not permitted except in cases of necessity, such as saving the life of the mother.[28] The permission to abort the fetus is also extended to cases of rape.[29]

Mawlānā Zubayr Aḥmad Qāsmī (d. 2019), a founding member of the Islamic Fiqh Academy, India, argued that the permission to carry out an abortion before ensoulment (even after discernibility) is not simply restricted to cases of necessity (ḍarūra) but includes cases of need (ḥāja), which broadly includes “any situation that entails bodily or psychological harm for the parents or the child and is a cause for continual distress.”[30] Examples of valid excuses include “danger to the general health, mental health, or life of the mother”, pregnancy resulting from rape or fornication (so long as it is not someone who has engaged in the latter habitually), the strong possibility that the child will be born with serious physical abnormalities or defects as determined by a medical professional, and the genuine inability of the parents to raise and maintain/sustain more than one child without it negatively impacting their current children.[31]

Mawlānā Khālid Sayf Allāh Raḥmānī states, “Essentially, abortion is impermissible in Islam, and there is no time period in which it is acceptable to abort a fetus. However, this impermissibly has degrees. In the first scenario (i.e. post-ensoulment) it is a grievous sin and categorically prohibited; in the second scenario (i.e. pre-ensoulment but post-discernment of limbs) it is lesser than this; in the third scenario (i.e. before features/limbs become discernible) it is relatively less severe than the previous two.” He then goes on to rule that abortion is not permitted for the following reasons: not desiring more children; conception out of wedlock; or being physically or mentally unable to care for a child, since others may be able to do so. Excuses that permit abortion before ensoulment include a doctor concluding with reasonable-surety that the child will suffer from a dangerous hereditary disease, physical abnormalities, and deformities, and the life of the mother is at serious risk.[32]

There are stricter views than some of those mentioned above, especially from non-Ḥanafī scholars. Shaykh Hamza Yusuf, taking the Mālikī school as his basis,[33] has argued that abortion before 40 days is prohibited “with rare exception.”[34] This view of impermissibility is also held by Shaykh Yūsuf al-Qaraḍāwī although he allows for a dispensation to be given to victims of rape.[35]

Shaykh ʿAbd Allāh ibn Bayya also deems abortion at all stages of pregnancy to be sinful to varying degrees except in situations where the life of the mother is at risk.[36]

Shaykh Wahba al-Zuhaylī (d. 2015) ruled that abortion was impermissible from the moment of conception “except in cases of necessity” such as being afflicted with cancer or an incurable disease.[37]

Framing the Problem: Basic Levels of Engaging the Law

The discussion so far makes one point quite evident: there are an array of opinions on the issue of abortion ranging from the extremely restrictive to the more permissive. Though ‘difference of opinion’ (ikhtilāf) has generally been viewed as one of the outstanding and unique features of Islamic legal discourse, it is precisely the range of views that exist in the tradition on abortion that partly plays a role in the problematic approaches to the issue seen amongst certain Muslims. It is not so much the differences themselves that are the issue, but the manner in which particular opinions are selected by individuals who subsequently propagate them to the community as binding doctrine.

To better understand this, one can broadly identify four basic levels of engagement with religious law applicable to Muslim leaders and scholars in the West in the context of the abortion issue,[38] which often overlap with one another: (a) personal, (b) academic, (c) fatwā, public preaching, and irshād, and (d) political.

(a) The Personal

The ‘personal’ level concerns an individual’s own practice where he or she can follow the legal school (or trusted scholar) of their choosing or decide on the rulings that govern their lives when possessing the ability to do so. This level does not directly concern anyone but the individual himself.

(b) The Academic

The ‘academic’ level in the current context refers primarily to a process of study, reflection and deduction, and research to arrive at a personal conclusion regarding some aspect of the law that is undertaken in conversation with a guild of peers and not the general population. Such academic activity is often theoretical, abstract, and conceptual, and even when it addresses more practical concerns, it constitutes a general articulation of an opinion, not an individualized responsa, that others engage with as members of a scholarly class. This scholarly class includes the ʿulamā’ and others whose input is relevant to a particular issue.

(c) Fatwā, Irshād, and Public Preaching

The realm of fatwā is exclusively for a qualified scholar. Here, the scholar enters most directly into the practical implementation of a legal ruling. Fatwā does involve an academic process, and it is often conveyed by a jurist as a universal ruling in accordance with his academic conclusions. However, the practice of fatwā is commonly understood as an answer directed by a qualified jurisconsult (muftī) to an individual (mustaftī) who requires guidance on a particular religious matter. The jurisconsult providing said individual with an answer is now tasked with translating the abstract, theoretical, and academic into a practical solution, which requires taking into account the circumstances of the questioner.[39]

The delicateness of this matter has led some scholars to compare the relationship of a jurisconsult with the questioner to that of a doctor and his patient.[40] Indeed, the answer that a scholar provides a questioner may not be fully in accordance with the theoretical and abstract conclusions the former has reached in an academic setting, it may disregard an opinion that the jurisconsult otherwise deems a valid legal interpretation because its application is not appropriate in the specific case at hand, it may be strict or lenient, in accordance with the legal school of the scholar or a dispensation from another, and it may be inapplicable to anyone but the questioner. Further, a fatwā is non-binding (unlike a judicial court ruling) and does not negate other valid opinions or peoples’ choice to follow them. This is important to note in contexts where a fatwā is issued to communicate a universal rule.

In many cases, the answer that is provided to a person is not presented as a fatwā but merely a form of religious advice or irshād. Though there is presumably a difference between these two concepts, they are sometimes indistinguishable in a Western context. Irshād has a seemingly less formal quality to it, and it can be offered by a non-scholar though the prerequisite of sound knowledge still remains. Like fatwā, the proffering of religious advice and guidance can assume a more public form and have an academic flavour to it. The articles written by non-scholars on the blogosphere, lectures and speeches delivered by speakers, and religious counsel extended to others falls within this general category of irshād. For those in leadership roles, the public nature of their work means that high standards are required even here when it comes to addressing and conveying religious issues of a complex or delicate nature.

(d) The Political

If the issuance of a fatwā and providing religious advice is a delicate matter, the process of forming, advocating for, and/or enacting laws on the political level is far greater in this regard. Such laws are made in the context of human societies and affect large swaths of people who objectively vary in their circumstances – individual, social, religious/ideological, and economic. Unlike a fatwā or irshād, once a law has been settled upon by the state, it becomes binding upon an entire population and any reasonable alternative ceases to hold validity in practice at least until the law is reviewed and amended. Exemptions are only tolerated when affirmed by the law itself. Further, law interacts with and influences society in complex ways. This is true for all forms of law, not just ones that are state-enacted.

A core question in legal philosophy is what the law ought to be or what makes a law good. The ‘good’ is a moral concept and might be described as one that is essentially contested in so far as people differ over its conception and the criteria for its application. Some emphasize the consequences of a rule (consequentialism), while others favour a deontological moral ethic or one that is virtue-centred. Each of these families of theories subsume within them further particular theories that differ with one another. There are also considerations of fairness, equity, distributive justice, enforceability, practicality, and/or efficiency that those evaluating the law might assign significant value to. These notions of morality and the good influence policy-making and legal systems.

How do Muslims approach this issue? Islam is viewed by Muslims as a comprehensive moral and philosophical system where the moral value of an act is determined by the divine will. It is the commands and prohibitions of God that render an action good or evil, and under this divine command theory, revelation is the primary source for moral knowledge.[41] However, this legal notion of moral value is not as straightforward as it sounds since a significant number of legal rulings are probabilistic in nature and differed upon. Consequently, the moral value attached to these rulings lack a decisive character, which engenders a plurality of moral outlooks. This pluralism is an indelible feature of the tradition itself creating a paradox whereby Muslims can affirm that good and evil are known through revelation, while recognizing that differences concerning moral judgments are part of the moral vision of revelation itself.

This raises important questions regarding the political approach a minority Muslim population in the West might take regarding the abortion issue. Should Muslims seek to accommodate a pluralism justified by tradition and avoid commandeering the state to coercively impose laws that negate the right of people to follow an acceptable and mainstream Islamic legal opinion?

Should Muslims simply support restrictions on abortion practices that contravene the consensus position of Islam? Or should Muslims seek to promote an opinion, or some combination of opinions, among those found in the legal schools on the basis of a reasonably defined criteria that assesses the issue holistically from the perspective of the theological, legal, ethical, and the public good?

Indeed, there are many classical opinions whose validity scholars did not accept, others that were prima facie valid but not put into practice, and classical jurists themselves erected systems to keep a check on legal chaos resulting from people being allowed to arbitrarily follow any opinion with a basis in precedent. Yet, Muslim societies always tolerated differences of opinion, and for most of its history, people living in these societies had recourse to various scholars from multiple legal schools. Unlike the centralizing and homogenizing tendencies of the modern nation-state, Islamic law was centrifugal and operated on a grass-roots level to produce self-governing societies. In many periods, this diversity was even found in judicial settings where courts were established for each of the legal schools. This was extended to non-Muslim populations living under Islamic governments as well who were accorded a high degree of autonomy. While this might strike some as a thing of the past, a nostalgic yearning for a bygone era, there are many lessons the community can draw from the attitudes and approaches of past societies.

In a political context, the notion of the ‘public good’ (maṣlaha) is particularly relevant given the scope and consequences of legislative actions, but it is a notoriously complicated one to pin down and, like the ‘good’, might be described as essentially contested. Even the basic question “who will this law or opinion impact, and in what manner” takes one into a complex maze of considerations and perspectives that demand careful attention and thought. It is hard to imagine any informed answer to this question without the input of a variety of experts. While Muslims are not quite in a position to craft legislation, influential religious activists and scholars who advocate for specific legislation and/or discourse on it to the wider community should keep the above points in made for any advocacy that proceeds in the name of religion is one that must be approached with care and seriousness.

Abortion

Identifying the Problem: Beyond Personal Preferences, Emotions, and Selective Madhhab Picking

With this framework in mind, it is now possible to identify a major problem in current American Muslim discourse on abortion, which is that it does not meaningfully engage any of the levels described above save the personal. The distinction between these various engagement contexts is hardly recognized. Most public discourse on abortion promotes one traditional opinion over another based not on a rigorous standard that is grounded in revelation, theology, legal theory, ethics, the public good, and a keen awareness of human nature, the individual, political, social, and ideological currents and factors, historical trends, and the challenges of the contemporary world, but seemingly on personal opinions based on little more than a reaction to a perceived ideological threat, individual proclivities, or pure taqlīd. The mainstream opinions of the legal school simply act as tools of legitimation for one’s personal view.

The Problem of Imposition

On a personal level, this is not a problem per se, and people have their reasons to select certain views as opposed to others and even vociferously promote them in some limited capacity to friends, colleagues, or family over a session of tea or a short-lived social media feud with random individuals. However, for those in positions of leadership and influence, this cannot be the basis for a fatwā, general communal irshād, or public advocacy impacting millions of people. The imposition of the personal onto these areas in this manner is both ill-advised and potentially harmful. Even the conclusions reached by a scholar on the basis of sound academic research may be put aside in these contexts, i.e. fatwā and political activism/legislation, when the scholar feels that competing considerations and interests demand so. Thus, a scholar may believe in a reading of revelation that is extremely restrictive on abortion but recognizing the probabilistic nature of his interpretation and the variety of individual circumstances, the ethical norms of ease and warding off hardship, profound societal and economic changes, complex and strained community and family structures, the advice of other experts, and the general public good chooses not to advocate for this view as a matter of policy to be implemented as law or provided to a specific individual as a legal edict.

The Sunna Imperative for Leniency, The Lack of Depth of the Lenient

It is often forgotten that a peculiar response by some classical jurists to the degenerated state of society was not in toughening up legal prescriptions but relaxing them: “Our time is not one of avoiding the doubtful (shubuhāt), meaning if a person only avoids the impermissible, it is sufficient.”[42] This was an ethical consideration influencing the judgment of the jurist who saw it not as compromising religion nor a dereliction of his duty but part of the guidance of the sunna itself where facilitating the affairs of people was deemed important.[43] As Shaykh Abdal Hakim Murad states commenting on the instruction of al-Birgivī (d. 981/1573) not to give the laity the more difficult opinion on an issue validly differed upon:

This, of course, is a Prophetic counsel. The ego doesn’t always like giving people easy options because we assume it is because of our laziness or some kind of liberal Islam. For al-Birgivī it is taqwā to give the ordinary Muslims the easier interpretations… but nowadays, we tend to assume that the narrower you are, the less compromises you make, the more the West will be angry and, therefore, the better the Muslim you must be.[44]

The Prophetic counsel that Shaykh Abdal Hakim refers to is known to many: “Make things easy and do not make them difficult.” This attitude of facilitating matters for people, granting them leniency, and not repulsing them with harshness and difficulty is a part of Islam. As Imām al-Shāṭibī stated, the removal of hardship (rafʿ al-ḥaraj) is a decisively established foundational principle in the shariah.[45] From this foundational principle arises some of the most important legal and ethical principles in the Islamic tradition, such as hardship necessitates ease, there is no harm nor reciprocating harm, harm is lifted, the lesser of two evils, taking into account the consequences of an act, custom as a source of law, and more. In fact, some jurists opined that when the evidence for an issue was contradictory or conflicting, the more lenient opinion was to be given preference due to the generality of revelatory texts affirming ease in the shariah.[46]

But there is a problem. Many of those who promote and relay the lenient Ḥanafī opinion of unconditional permissibility approach it in a manner that lacks substance. On the academic plane, even basic questions regarding this position are not addressed or understood, much less entertained. Take, for example, the difference between the statement of Ḥanafī jurists that abortion is impermissible after the physical features of the fetus become discernible and the statement of others in the school that this impermissibility comes into effect after a 120-day period. Are these the same? Who in the madhhab held these positions? Is there a clear preference for one or the other? How was discernibility understood? What features needed to be discernible? Did discernibility refer to what is normally observable by humans or to what is discernible by modern embryogenesis? How have contemporary jurists addressed this issue? Then there is the matter that one is hard-pressed to find a single contemporary Ḥanafī jurist who favours the view of unconditional permissibility. What does this reveal about this opinion and the possibility of critically evaluating past opinions that fall within the scope of differences of opinion?[47]

These questions largely fall within the parameters of an intra-school discussion and do not even begin to address the broader social and political considerations mentioned earlier.

Here, the sheer fact that there were over six-hundred thousand abortions reported in America in 2015, the latest year for which statistics exist from the CDC, should be alarming to people and cannot be callously dismissed.

Though the overwhelming majority of these occurred well within a 120-day period (≤13 weeks’ gestation, which is measured from the first day of the woman’s last menstruation and not from the day of conception), most of those who obtained these abortions were unmarried women who did so in non-dire circumstances.[48] The culture of sexual freedom out of which the abortion movement emerged and its ideological grounding in notions of bodily autonomy and personal choice cannot be ignored in this discussion.[49] Nor can the devaluing of family and motherhood,[50] the practice of female foeticide, the increasingly materialistic outlook of society, and its mechanistic view of human beings.

Additionally, some Muslims seem largely oblivious to the fact that abortion politics link to many other issues that have little do with abortion itself, such as assisted suicide or end-of-life care. In a famous district court case on assisted suicide, Compassion in Dying vs. Washington, it was Planned Parenthood vs. Casey that was cited as an important precedent to rule that a ban on physician-aided suicide was unconstitutional.[51] Clearly, it is not sufficient to make simplistic appeals to leniency to justify promulgating an opinion that leads to such wider consequences. Abortion, in other words, cannot be treated as a ‘stand-alone’ issue with little or no relation to a broader philosophical outlook that downplays a sanctity of life ethic.[52]

Thou Shalt Make No Exceptions, But Should We?

Many of the issues highlighted in the previous paragraph raise serious theological and ethical concerns for Muslims and should push them to reflect on the type of society they wish to create and sustain in America. Is the abortion movement today in line with the moral vision envisioned for society by God and His Prophet (blessings upon him)? Clearly not. But while the seriousness of this crisis cannot be understated, a core question, at least in the context of this debate, is often missed: if it is misplaced and dangerous to forward the most lenient opinion in this context, in what way does the strictest possible position on abortion where exemptions are not even extended to victims of rape and incest ameliorate the current situation? Or to put it differently, how do these social and ideological problems make the strictest possible opinion on abortion the most appropriate one to adopt for the individual and society?

The answer to this question is not usually satisfactorily provided. Generally, such a view returns to a genuine moral belief one holds regarding a fetus being an inviolable living person. This moral belief may be grounded in a preferred reading of revelation, simple adherence to a specific legal school, a reaction to a perceived ideological battle framed in the language of pro-life vs. pro-choice, personal inclinations, or, as is usually the case, some combination of these factors. But the no-exception view is at least initially a personal view one holds, which is then forwarded as a broad religious and political solution. One may wonder why this is an issue. After all, why shouldn’t a person forward what he or she personally believes to be the Islamic ruling on an issue?

Certainly, this is expected especially when it concerns human life, but as stated earlier, it is problematic when that personal view, which it should be noted in this case lacks a decisive legal/moral character from a religious perspective, moves into the realm of fatwā and public advocacy without taking into account the many considerations required to make an informed decision in these areas. This is in addition to the fact that those who hold this view feel perfectly within their rights to tell others to set aside their personal moral views permitting abortions precisely in view to a broader context.

Here, it is worth sharing the response given by Shaykh Yūsuf al-Qaraḍāwī when he was asked about abortions for Bosnian Muslim women who were raped during war. After mentioning that his basic view is that abortions are impermissible “from the moment of conception” and “this is what we give preference to”, he states:

However, in cases of need, there is no harm in taking one of the two alternative views (i.e. permissibility before 40 or 120 days), and whenever the excuse is more severe, the dispensation will be more established and manifest, and whenever it is before the first 40 days, it is closer to dispensation.

We know that there are jurists who are very strict on this matter and do not permit abortion even a day after conception… but what is most preferable is a middle path between those who are expansive in granting permission and those who are excessively strict in prohibition.[53]

This is, of course, how knowledge and fiqh operate. They do not merely float around in the world of the abstract but address a complex world of real people, which in the context of fatwā, irshād, and politics often requires setting aside individual feelings and personal adherences to particular legal opinions: “Know that this ikhtilāf [between scholars] may be a reason to provide facilitation and ease, which is one of the higher aims of the shariah affirmed by the unequivocal text of the Qur’an and sunna.”[54]

Too often, many of those who vociferously promote the strictest view on abortion address the issue on the level of the abstract and then transfer it to the practical realm with little further thought. Take, for example, the argument that Muslims should oppose the legalization of abortion because a majority of abortions are due to economic anxiety or a feeling of unreadiness, which in turn return to the increasingly materialistic outlook of society and crumbling family structures.

This materialistic outlook and erosion of the family must be remedied. However, no justification is ever furnished as to why a no-exception abortion stance is the best method to address this social problem, and there is almost no focus on the individual. It never crosses the mind of the proponents of this view that it is the very fact that society is materialistic to its core and the family lay in ruins that causes economic anxiety and feelings of unreadiness to be felt much more palpably and intensely by young, unmarried, pregnant women.

Web MD

By largely confining their analysis and presentation of the issue to ‘materialism’, ‘decay of family’, ‘feminism’, etc., proponents of the restrictive view (inadvertently) divert attention away from the lived realities of people. This leads to neglecting the more concrete conditions and circumstances people are subject to, such as poverty, unemployment, drug abuse, poor health, psychological issues, sexual abuse, incarceration, social inequality and stratification, and the varying abilities of people to cope with life pressures and struggles. This focus away from the individual produces an unsympathetic, even antagonistic attitude, where the solution favoured is uncompromising and rigid. The ethical is erroneously conflated with strictness even though it might entail leniency in recognition of individual and social conditions.

To take one example where these broader considerations come into play, take the issue of pregnancy resulting from rape. Though statistics regarding rape are inconsistent because the crime is so underreported, it is safe to say that hundreds of thousands of women are victims of rape every year with tens of thousands of these rapes resulting in pregnancy (approximately five percent).[55] A significantly high number of rape victims are under eighteen with many actually being under the age of twelve.[56] Victims of rape spend many weeks simply recovering from physical injuries and managing mental health symptoms, which can remain with them for years. Beyond the physical and psychological symptoms common after rape, if a rape victim decides to carry her child to term, she is forced to go through a lengthy and exhausting process to prosecute her rapist in a criminal court and contest custody in a family or dependency court.

The political and legislative context makes matters even more difficult. Not every state has legislation in place allowing for parental rights to be terminated for a rapist. Most states that do have such legislation in place require a criminal conviction of rape beyond a reasonable doubt, which is the highest standard of evidence possible, with several also requiring a civil court conviction by clear and convincing evidence that conception resulted from rape.

Some states require the rape to be of the first-degree, which is varyingly defined.[57] Generally, the chances of obtaining a conviction of first-degree rape are slim. Not only do rape crimes go unreported in a majority of cases,[58] there are numerous hurdles in the criminal justice system that disadvantage rape victims at every stage of the process, such as ‘rape myths’ that influence police, investigative officers, jurors, and judges.[59]

In most cases, a rapist will plead guilty to lesser crimes in order to avoid prolonged jail time, which would potentially allow him to gain parental rights in states requiring first or second-degree rape convictions for such rights to be terminated.[60] In view of this, one can state that the suggestion by some Muslims that abortion should not be permitted even in such contexts because a woman can simply put her child up for adoption is seriously misinformed and potentially harmful.[61] Is the correct solution in this context to support the most restrictive view on abortion?

Conclusion: Refining our Conceptualization & The Bigger Picture

American Muslims must go beyond simplistic and emotionally-charged approaches to the abortion question. This issue, like many others, cannot be properly addressed through a narrowly defined law, politics, or clash of ideologies narrative, especially at the level of individual fatwā, communal irshād, or political activism, advocacy, and legislation.

Nor can the wider community be shown direction on this issue, or have a course charted for them, merely on the basis of narrowly-informed personal opinions and proclivities neatly presented in the classical opinions of our choosing. Our approach must address the issue through real fiqh, namely deep understanding, where the question of abortion is tackled with an academic rigor that is cognizant of lived realities and is grounded in the ethics and guidance of revelation.

Today in America, a crisis we face is of an activism not based in, or guided by, real scholarship, and a scholarship that is wanting, uninspiring, and disconnected from those it seeks to guide. The first step scholars must take on this issue is to gain a proper and thorough conceptualization of the issue. No sound and effective conclusion can arise without such a conceptualization. This is true for any issue we find ourselves dealing with.

On the level of addressing the broader community, this is not an issue to be decided by an individual but a collectivity of minds coming together to exchange ideas and opinions. The laity should understand that American Muslims will not reach an agreement on this matter, and nor should we demand that they do. People will continue to forward different opinions and solutions. The progression of time will likely result in a plurality of acceptable views emerging within our context. This should not be met with confusion.

Muslims once lived in an age of ambiguity where opinions were confidently held but differences embraced. Today, we live in an age of anxiety, people with confused identities, threatened by modernity and various ideologies, so much so that “the only form of Islam [we] can regard as legitimate is a totalitarian, monolithic one” as Shaykh Abdal Hakim once remarked. Let us avoid this, allow for different perspectives, but demand higher standards from those who seek to guide us and speak on our behalf especially when the matter veers into a space that impacts people and communities in a very real way.

Finally, and most importantly, Muslims must break out of the mindset that social problems can simply be legislated away or solved through polemical battles waged on the internet against pernicious ideologies. The political and social are intimately intertwined, but it is all too common to see many Muslims neglecting the latter while imagining that the activities they are engaged in to address the political are actually meaningful and impactful. In fact, it is often detached from the real world, a mouthing of clichés and idle moralizing on social media platforms that elicits rage and fails to yield actual solutions on the ground. If television altered the meaning of being informed as Neil Postmann asserted, social media has undoubtedly taken things a step further by altering the meaning of ‘taking action’.

The erosion of family, the decay of morality, the rise of materialistic outlooks, the loss of higher purpose and meaning, and the devaluing of life must be addressed more directly through education, the creation of a real community, the nurturing and training of leaders who embody knowledge and wisdom, and the erection of structures that support peoples’ faith and anchor them in times of crisis. It should not be forgotten that these non-legal institutions play an important role in shaping behaviours and promoting social mores.

Muslims should learn from the many conservative Christian activists who, contrary to popular stereotypes, demonstrate an acute awareness of the struggles and anguish that many women contemplating abortion experience. As the prominent pro-life activist Frederica Mathewes-Green states:

This issue gets presented as if it’s a tug of war between the woman and the baby. We see them as mortal enemies, locked in a fight to the death. But that’s a strange idea, isn’t it? It must be the first time in history when mothers and their own children have been assumed to be at war. We’re supposed to picture the child attacking her, trying to destroy her hopes and plans, and picture the woman grateful for the abortion, since it rescued her from the clutches of her child.

If you were in charge of a nature preserve and you noticed that the pregnant female mammals were trying to miscarry their pregnancies, eating poisonous plants or injuring themselves, what would you do? Would you think of it as a battle between the pregnant female and her unborn and find ways to help those pregnant animals miscarry? No, of course not. You would immediately think, “Something must be really wrong in this environment.” Something is creating intolerable stress, so much so that animals would rather destroy their own offspring than bring them into the world. You would strive to identify and correct whatever factors were causing this stress in the animals.[62]

It is this realization, which arises from a perspective that looks beyond abortion as simply an ideological battle between ‘the feminist’ or ‘the liberal’, that generates a sense of empathy within many conservative Christian activists who are then motivated to assist women in concrete ways.

Take the example of Embrace Grace, a Texas-based non-profit organization, which describes its purpose as “providing emotional, practical and spiritual support for single, young women and their families who find themselves in an unintended pregnancy” and to “empower churches across the nation to be a safe and non-judging place for the girls to run to when they find out they are pregnant, instead of the last place they are welcomed because of shame and guilt.” Christians have set up hundreds of pregnancy care centers across the United States, which, despite issues of concern, provide resources and services to pregnant women. Various churches have set up support groups for single mothers and mothers-to-be, while the Christian Community Development Association (CCDA) has set out to confront systemic injustices in society that lead women to seek out abortions, such as poverty.[63]

Shaykh Abdal Hakim Murad said reaching the golden mean requires that we think and make sacrifices. It is time for leaders, thinkers, and scholars in our community to begin thinking more deeply and contemplatively about the issue of abortion in its various contexts, and it is time for our community to sacrifice their time, wealth, and energies in providing concrete solutions and remedies that demonstrate a true concern for both the unborn and the women who carry them.

God alone is our sufficiency.

[1] References to Muslims in this article should be primarily understood as referring to people in positions of leadership and influence. In this article, I discuss some of the technical aspects surrounding the legal debate over abortion, but my intent is to simply provide a brief overview of this aspect of the debate in order for a general audience to appreciate some of the complexities of the topic.

[2] Though the term fetus technically refers to the unborn after 8 weeks of gestation, many use it to refer to the unborn throughout the period of pregnancy. I will be using the latter convention for the sake of simplicity.

[3] al-Ḥasan ibn Manṣūr al-Farghānī, Fatāwā Qāḍīkhān, on the margins of Fatāwā Hindiyya (Bulāq: al-Maṭbaʿa al-Amīriyya, 1310 A.H.), 3:410.

[4] Ibn Māza himself framed the ruling in terms of ensoulment. He stated that jurists differed on the permissibility of abortion pre-ensoulment with some permitting it. He then cited the text of Fatāwā Ahl al-Samarqand, which only speaks of discernibility. Qāḍīkhān mentioned how the discernibility of physical features and limbs was “determined” by some as occurring at 120 days. Kamāl ibn al-Humām and others correctly pointed out that observation proves otherwise but proceed to state that the connection made between discernibility and ensoulment shows that scholars intended the latter when expressing the former. Ibn ʿĀbidīn, however, questioned this. I agree for several reasons: firstly, many jurists make no reference to 120 days or ensoulment when presenting this ruling; secondly, discernibility and ensoulment are clearly different stages during the pregnancy, a fact that was known to classical scholars who sometimes applied different terms to these two stages, such as taṣwīr/ṣūra and takhlīq/khalq; and, thirdly, most Ḥanafī rulings premised on determining personhood rely on the discernibility criterion. Given this, there are two possible views in the Ḥanafī school regarding the period before which abortion is permissible: before some of the physical features of the fetus become discernible or prior to ensoulment at 120 days. Additionally, there was discussion in the Ḥanafī school on the features that were to be given consideration when assessing whether a fetus was a ‘person’. These discussions are highly significant in modern debates for if the criterion for personhood is discerning a particular physical form on the basis of observation, this potentially broadens the scope for modern Ḥanafī understandings of the concept of personhood and how/when it is established. I hope to address these issues in a separate paper. See Maḥmūd ibn Aḥmad ibn Māza, al-Muḥīṭ al-Burhānī fī al-fiqh al-Nuʿmānī, ed. Nuʿaym Ashraf Nūr Aḥmad (Karachi: Idārat al-Qur’ān wa’l-ʿUlūm al-Islāmiyya, 2004), 8:83-84; al-Farghānī, Fatāwā Qāḍīkhān, 3:410; Muḥammad Amīn ibn ʿĀbidīn, Radd al-Muḥtār (Būlāq: al-Maṭbaʿa al-Kubrā al-Amīriyya, 1323 A.H.), 1:201.

[5] Ibn Māza, al-Muḥīṭ al-Burhānī, 8:83-84. It is worth noting that al-Qummī did not say fetus is a life at conception but that it has begun a process that concludes with life.

[6] Ḥussām al-Dīn ʿUmar ibn Māza, al-Fatāwā al-Kubrā (Istanbul: Rāghib Bāshā #619), ff. 96b.

[7] Raḍī al-Dīn al-Sarakhsī, al-Wajīz (Istanbul: Koprulu #684), ff. 116a.

[8] Jamāl al-Dīn Aḥmad ibn Muḥammad, al-Ḥāwī al-Qudsī, ed. Ṣāliḥ al-ʿAlī (Lebanon: Dār al-Nawādir, 2011), 2:326.

[9] Zayn al-Dīn Muḥammad ibn Abī Bakr al-Rāzī, Tuḥfat al-Mulūk, ed. Ṣalāḥ Abū al-Ḥajj (Amman: Dār al-Fārūq, 2006), 290.

[10] ʿAbd Allāh ibn Maḥmūd al-Mawṣilī, al-Ikthiyār, ed. Shuʿayb Arna’ūṭ (Damascus: Dār al-Risāla 2009), 4:153.

[11] ʿUthmān ibn ʿAlī al-Zaylaʿī, Tabyīn al-Ḥaqā’iq Sharḥ Kanz al-Daqā’iq (Multan: Maktaba Imdādiyya, n.d.), 2:166.

[12] Amīr Muḥammad ibn Muḥammad al-Kākī, Miʿrāj al-Dirāya (Istanbul: Koprulu #619), ff. 395b.

[13] Jalāl al-Dīn ibn Shams al-Dīn al-Khawārizmī, al-Kifāya Sharḥ al-Hidāya, on the margins of Fatḥ al-Qadīr (Cairo: Maṭbaʻat al-Maymaniyya, 1901; reprint Dār al-Kutub al-ʿIlmiyya, n.d.), 3:373.

[14] Kamāl ibn al-Humām, Fatḥ al-Qadīr (Cairo: Maṭbaʻat al-Maymaniyya, 1901; reprint Dār al-Kutub al-ʿIlmiyya, n.d.), 3:372-73.

[15] Muḥyī al-Dīn ibn Ilyās Jawīzāda, al-Īthār li-Ḥall al-Mukhtār, ed. Ilyās Qablān (Istanbul: Maktabat al-Irshād, 2016), 4:98.

[16] Muḥammad ibn ʿAlī al-Ḥaṣkafī, al-Durr al-Mukhtār (Lebanon: Dār al-Kutub al-ʿIlmiyya, 2002) 197.

[17] I am usually disinclined to list names of jurists in this manner when relating who held a specific legal opinion. One reason for this is that it creates the mistaken illusion that every one of these jurists came to this conclusion on the basis of their individual ijtihād when it may in fact simply be an exercise in taqlīd. Thus, one finds that most of these authors merely relate verbatim those who preceded them without any additional comments. However, it still indicates that these jurists accepted the ruling in question as the position of the school without qualms.

[18] When does a fetus qualify as a ‘person’ or a ‘human’? What are the necessary and sufficient features for personhood? Does personhood correspond to the beginning of life? If not, when does life begin? How is this connected to ensoulment? When does ensoulment occur? When does a fetus have moral standing? What is the nature of this moral standing over the course of a pregnancy? These are central questions in classical and modern debates on abortion. Sometimes, one finds that ‘person’, ‘human’, ‘life’, and related terms, are not properly defined, which is a problem given that conclusions regarding abortion are often premised on their proper conceptualization. Further, when attempts at proper definition are undertaken, people naturally come to different conclusions. For example, some modern pro-life philosophers argue that ‘persons’ are individuals of a rational nature and a fetus has no capacity for sentience, at least not until mid-gestation. Conception, therefore, cannot mark the beginning of a person. Yet even here, some scholars note that the fetus is a potential person. Therefore, it has some moral value and standing, but others counter with a “person-affecting restriction” that argues that merely potential people possess no moral claims. Some people work under material assumptions regarding the nature of the mind and opine that a moral person must be a ‘self’ and a necessary condition for something to be a self is some form of electrical brain activity. The bioethicist, Baruch Brody (d. 2018), also relied on this criterion of brain waves in his conception of personhood. Jane English presents a range of features or ‘factors’ that she views as being found in typical conceptions of a person: biological, psychological, rationality, social, and legal. There are religious conservative thinkers who define being human on the basis of genetics. John T. Noonan stated, “The positive argument for conception as the decisive moment of humanization is that at conception the new being receives the genetic code. It is this genetic information which determines his characteristics, which is the biological carrier of the possibility of human wisdom, which makes him a self-evolving being. A being with a human genetic code is man.” Many religious conservatives also maintain that there is no moment during pregnancy that can be identified as conferring moral significance on the unborn, i.e. it possesses moral standing before birth and after. Thus, brain waves, sentience, quickening, viability, physical human form, etc., are given no consideration as points at which moral standing is affirmed for the fetus and prior to which it is denied. For important early works on this topic see John T. Noonan, The Morality of Abortion: Legal and Historical Perspectives (Cambridge, MA: Harvard University Press, 1970); Jane English, “Abortion and the Concept of a Person,” Canadian Journal of Philosophy 5, no. 2 (1975): 233-43; Baruch Brody, Abortion and the Sanctity of Life (Cambridge, MA: The MIT Press, 1975); Stephen Buckle, “Arguing From Potential,” Bioethics 2, no. 3 (1988): 226–253; Mary Anne Warren, Moral Status: Obligations to Persons and Other Living Things (New York: Oxford University Press, 2000); Michael Tooley, Abortion and Infanticide (Oxford: Clarendon Press, 1983); Richard Warner, “Abortion: The Ontological and Moral Status of the Unborn,” Social Theory and Practice 3 (1974). The literature on this is vast.

Classical jurists of Islam were guided fundamentally by revelation in their answers to these questions, but they still had substantial disagreements. Some identified a fetus as a person from the moment of conception, others as potentially so, yet others as a person only when its physical features became discernible, while some seemingly assigned no status to it at any fetal stage prior to ensoulment. When it came to ensoulment, the majority said this occurred at 120 days, while others said 40 days. Some equated ensoulment with personhood, while others distinguished between them. There were other conceptual frames utilized in discussions concerning the fetus as well, such as dhimma and ḥuqūq, being ‘animate’ or ‘inanimate’, a constituent part (juz’) of the mother or a separate self (nafs), and so forth. This occasioned a degree of ambiguity regarding the moral standing of the fetus at various stages of pregnancy. For example, Imām al-Ghazālī prohibited abortion at all stages of pregnancy but stated that the sin of doing so is less severe in earlier stages than later ones. Some jurists deemed it permissible to undergo an abortion due to a minor excuse in the first 40 days, requiring a more serious excuse from that point up until 120 days, and impermissible in all but the direst of situations following ensoulment. The fetus, therefore, seems to have a diminished moral standing at the beginning of the pregnancy and full moral standing post-ensoulment even in the eyes of jurists who affirmed personhood from conception. This is also reflected in rulings concerning financial compensation (ghurra) and expiation (kaffāra) owed by someone who causes a woman to miscarry. Meanwhile, many Ḥanafīs seemed to have assigned no moral status to the fetus before it had a discernible human form. The moral standing of the fetus was also influenced by the manner of conception with some jurists suggesting that a fetus conceived out of wedlock was not similar to a fetus that was conceived through a religiously sanctioned relationship. Besides revelation, observation played an important role in these determinations, as did the specific legal traditions jurists operated within. Today, science and embryology have guided the conclusions of many scholars, which has raised questions regarding the epistemological and interpretive value of the former. There is arguably a need to go beyond limited legal conceptions of personhood and life and engage in deeper theological and philosophical discussions on this matter.

[19] This ruling was consistent with several others in the school regarding whether a miscarried fetus is named, shrouded, and washed, whether a miscarriage concludes the waiting-period of a pregnant woman, and even whether a fetus is resurrected in the next-life. These rulings, among others, returned to whether the miscarried or stillborn fetus was actually considered a child/person, which in turn related to the formation and discernibility of its physical features. I believe this strengthens the view that discernibility of physical features was the main criterion for personhood in the Ḥanafī school. For some of these rulings see Muḥammad ibn al-Ḥasan al-Shaybānī, al-Aṣl, ed. Mehmet Boynūkālin (Beirut: Dār Ibn Ḥazm, 2012), 1:296, 4:415, 481, 5:144. This interconnectedness of legal doctrine, or its organic unity, is expressed in a famous aphorism, “The law is a seamless web.” These discussions are also present in the other three legal schools.

[20] Abū Muḥammad ʿAbd al-Wahhāb ibn Wahbān, ʿIqd al-Qalā’id wa-Qayd al-Sharā’id, ed. ʿAbd al-Jalīl al-ʿAṭā (Damascus: Maktabat al-Fajr, 2000), 195.

[21] Zayn al-Dīn ibn Nujaym, al-Baḥr al-Rā’iq (Cairo: al-Maṭbaʿa al-ʿIlmiyya, 1893; reprint by H.M. Saeed, n.d.), 3:215.

[22] Muḥammad Amīn ibn ʿĀbidīn, Radd al-Muḥtār (Būlāq: al-Maṭbaʿa al-Kubrā al-Amīriyya, 1323 A.H.), 2:388-89.

[23] The Hidāya mentions that a child conceived out of wedlock is still muḥtaram and so cannot be aborted. Imām ʿAbd al-Ḥayy al-Lakhnawī mentions that this only applies to a fetus that has reached the stage of post-discernibility. He then goes onto state that the fatwā position in his time is that it would be permissible pre-discernibility and post-discernibility. See Burhān al-Dīn al-Marghinānī, al-Hidāya Sharḥ Bidāyat al-Mubtadī maʿa Sharḥ al-ʿAllāma ʿAbd al-Ḥayy al-Lakhnawī, ed. Naʿīm Ashraf Nūr Aḥmad (Karachi: Idārat al-Qur’ān wa’l-ʿUlūm al-Islāmiyya, 1417 A.H.), 3:25.

[24] Muṣṭafā Zarqā, Fatāwā (Damascus: Dār al-Qalam, 2010), 285.

[25] Maḥmūd Ḥasan Gangohī, Fatāwā Maḥmūdiyya (Karachi: Idārat al-Fārūq, 2009), 18:321.

[26] Sayyid Muḥammad Salmān Manṣurpūrī, Kitāb al-Nawāzil (Muradabad: al-Markaz al-ʿIlmī lil-Nashr wa’l-Taḥqīq, 2016), 16:248-81.

[27] Muftī Raḍā’ al-Ḥaqq, Fatāwā Dār al-ʿUlūm Zakariyya (Karachi: Zam Zam Publishers, 2015), 6:756.

[28] Ibid., 6:755.

[29] Ibid., 6:763.

[30] Zubayr Aḥmad Qāsmī, “Khāndānī Manṣūbabandī,” in Jadīd Fiqhī Mabāḥith (Karachi: Idārat al-Qur’ān, 2009), 1:332.

[31] Ibid., 1:331-32.

[32] Khālid Sayf Allāh Raḥmānī, Kitāb al-Fatāwā (Karachi: Zam Zam Publishers, 2008), 6:218-226

[33] The relied-upon position in the Mālikī school prohibits abortions almost entirely even if done prior to ensoulment, which Mālikī jurists opine as occurring at 40 days.

[34] https://renovatio.zaytuna.edu/article/when-does-a-human-fetus-become-human

[35] Yūsuf al-Qaraḍāwī, Fatāwa al-Muʿaṣara (Cairo: Dār al-Qalam, 2005), 2:541-50.

[36] ʿAbd Allāh ibn Bayya, Ṣināʿ at al-Fatwā wa-Fiqh al-Aqaliyyāt (UAE: Masār lil-Tibāʿa wa’l-Nashr, 2018), 577-78.

[37] Wahba al-Zuhaylī, al-Fiqh al-Islāmī wa-Adillatuhu (Damascus: Dār al-Fikr, 1985), 3:557.

[38] The delineation and explanation I have presented here should not be seen as a comprehensive exposition of the concepts being discussed. Rather, it should be seen as a basic explanatory framework to understand the problem I wish to highlight in the next section. I have intentionally left out many details surrounding fatwā, siyāsa, taqlīd, etc., for the sake of the average reader.

[39] Muḥammad Kamāl al-Dīn al-Rāshidī, al-Miṣbāḥ fī Rasm al-Muftī wa-Manāhij al-Iftā’ (Deoband: Ittiḥād Book Depot, n.d.), 61-62 in the Takmila; Ibn Bayya, Ṣināʿ at al-Fatwā, 28-29, 230.

[40] al-Rāshidī, al-Miṣbāḥ, 28.

[41] ʿ Abd al-Malik ibn Yūsuf al-Juwaynī, Kitāb al-Irshād ilā Qawāṭiʿ al-Adilla fī Uṣūl al-Iʿtiqād, ed. Aḥmad ʿAbd al-Raḥīm (Cairo: Maktabat al-Thaqāfa al-Dīniyya, 2009), 210-11. This is admittedly a simplification of a very complex debate on the role of reason, its meaning and limitations, its relationship to revelation, deontological vs teleological theories of Islamic normative ethics, and more. These were issues of fundamental debate between the great theological schools, namely the Ashʿarīs, Māturīdis, and the Muʿtazila.

[42] Ibrāhīm ibn Ḥusayn Bīrīzāda, ʿUmdat Dhawī al-Baṣā’ir li-Ḥall Muhimmāt al-Ashbāh wa’l-Naẓā’ir, ed. Ilyās Qablān & Ṣafwat Kawsa (Istanbul: Maktabat al-Rushd, 2016), 2:415.

[43] This is also seen in the tradition of rukhas, or dispensations, and ḥiyal, or legal stratagems/loopholes.

[44] From his Paradigms of Leadership (6) lecture series.

[45] Ibrāhīm ibn Mūsā al-Shāṭibī, al-Muwāfaqāt, ed. Mashhūr Ḥasan (Cairo: Dār Ibn ʿ Affān, 1997), 1:520.

[46] For reference to this see Ibn Bayya, Ṣināʿ at al-Fatwā, 273-75.

[47] One might state that these people are simply engaging in a form of taqlid. This is fair, but there is still a level of diligence and rigor expected from anyone who wishes to publicly opine on a matter of such nature.

[48] https://www.cdc.gov/mmwr/volumes/67/ss/ss6713a1.htm

[49] Take the following statements made by Judith Thomson in her well-known defence of abortion, which continues to be loudly echoed by the pro-choice movement: “My own view is that if a human being has any just, prior claim to anything at all, he has a just, prior claim to his own body” and “No doubt the mother has a right to decide what shall happen in and to her body.” The violinist analogy she forwards, among others, expresses this point quite clearly. See Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy & Public Affairs 1, no. 1 (1971): 48, 54.

[50] The sociologist Kristen Luker noted over three decades ago that pro-life and pro-choice activists were mainly divided due to their differing views on the meaning of sexuality, motherhood, and the role of women. See Kristin Luker, Abortion and the Politics of Motherhood. Berkeley (California: University of California Press, 1984), especially Ch 7.

[51] Compassion in Dying v. Washington, 850 F. Supp. 1454 (WD Wash. 1994). This was unanimously overturned by the Supreme Court in 1997.

[52] The phrase ‘sanctity-of-life’ has featured prominently in theological, political, and biomedical ethical discussions related to abortion and end-of-life questions. Some members of congress, for example, have tried repeatedly to introduce a ‘Sanctity-of-Life Act’ to protect the unborn. However, the origins, meaning, and application of the phrase remain unclear and heavily debated. For a basic overview see the edited volume Sanctity of Life and Human Dignity (Boston: Springer Dordrecht, 1996).

[53] al-Qaraḍāwī, Fatāwa al-Muʿaṣara, 2:609-13.

[54] Ibn Bayya, Ṣināʿ at al-Fatwā, 273.

[55] The Federal House Bill 1257 that passed in 2015 as the Rape Survivor Child Custody Act cites between 25,000 and 32,000 pregnancies from rape annually but this is almost certainly an underestimate.

[56] For details on these and other related statistics see https://www.cdc.gov/violenceprevention/pdf/2015data-brief508.pdf.

[57] For detailed information regarding state statutes and provisions on the termination of pregnancy in contexts of children born as a result of sexual assault see http://www.ncsl.org/research/human-services/parental-rights-and-sexual-assault.aspx

[58] For statistics on this see the Department of Justice Criminal Victimization analysis (revised, 2018) at https://www.bjs.gov/content/pub/pdf/cv16.pdf. There are several reasons why women choose not to report such crimes, which include fear of retaliation, shame and guilt, and a belief that police will not be able to help them.

[59] For a brief discussion on existing research around rape myths see Olivia Smith & Tina Skinner, “How Rape Myths Are Used and Challenged in Rape and Sexual Assault Trials,” Social & Legal Studies 26, no. 4 (2017): 442-45.

[60] Rachael Kessler, “Due Process and Legislation Designed to Restrict the Rights of Rapist Fathers,” Northwestern Journal of Law and Social Policy, no. 10, vol 1 (2015): 199-229.

[61] There is a sensitive discussion surrounding the definition of rape in Islamic law specifically as it relates to intimate married partners. I have ignored this issue because it would distract from the main purpose of this article.

[62] https://www.nationalreview.com/2016/01/abortion-roe-v-wade-unborn-children-women-feminism-march-life/

[63] There have been initiatives in the Muslim community directed at addressing these pressing issues, such as the work of Dr. Aasim Padela of the University of Chicago and his Initiative on Islam and Medicine, Dr. Rafaqat Rashid and the work of al-Balagh Academy, Dr. Mansur Ali of Cardiff University and his research on bioethics, and several others. This is not to mention the many individuals who have tried to create practical spaces to assist people who may find themselves in difficult life circumstances. While there is much more to do, the efforts of these people should not go unnoticed.

Continue Reading

Trending