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Terrorism is to Jihad as Adultery is to Marriage | Shaykh Abu Aaliyah Surkheel

Shaykh Abu Aaliyah Surkheel

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For the past four days I had been working on the following article, which I intended to post yesterday evening. However, I then heard about the vile and sadistic act of violence carried out by two men with knives and a meat cleaver in Woolwich. So I thought it best to review the blog post in light of the event, to see if I should develop it in any way. But barring a few edits here and there, I am posting the article more or less as it was originally written.

This is a brief overview of what Islam has to say about jihad, terrorism and the sanctity of human life. It bases itself, not on the need to please policy makers or the powers to be, nor on a colonialised mindset desperate to fit Islam into some acceptable liberal mould, but upon the texts of the Qur’an and the Sunnah, and the consensus (ijma‘) and considerations of mainstream Muslim jurists.

On a personal note, combating terrorism, and its ideological underpinnings, has long been a significant part of my da‘wah or outreach programme; and all praise is for God. It was animated long before the events of 9-11 or 7-7; since 1992 in fact, when a few of my teachers in shari‘ah alerted me to its realities, dangers and its unIslamic character. What follows is, as stated earlier, a brief trek across some of that terrain:

1. The first thing to mention in this regards is Islam’s outlook concerning the sanctity (hurmah) of human life. For as Islam views it, the human creature is indeed a sacred creation; so much so that: Whoever kills a person for other than crimes of manslaughter or corruption in the earth, it shall be as if he has killed the whole of humanity; and whosoever saves the life of one person, it shall be as if he has saved the whole of humanity. [5:32] Such, then, is the extraordinary value placed on human life in the Qur’an. And thus, as will be shown, acts of terror where women, children and other civilians are intentionally targeted and killed is categorically repudiated by Islam and by the agreement of those versed in law and learning among the Muslims.

2. Jihad as a word stems from jahada, which means: to strive, to exert oneself, to take extraordinary pains. As for its religious sense, al-Raghib al-Asbahani (d.425H/1034CE) defines it thus: ‘Exerting one’s utmost ability in repelling an enemy, and it is of three kinds: namely, contending against the outward enemy, the devil, and one’s ego. Each of these enters into God’s statement, exalted is He: And strive for God as He rightly must be striven for. [22:78] And strive with your wealth and your lives in the cause of God. [9:41] Also: Those who believed and left their homes and strove with their wealth and their lives in the cause of God. [8:72]‘1

3. In Islam, the decision about war and peace is not left to scholars, soldiers, or anyone else. Rather it rests with the head of state who wields executive authority. This being a cardinal rule of warfare in Islam. Ibn Qudamah al-Maqdisi (d.620H/1223CE) explains the rule like so: ‘The question of declaring war [or not] is entrusted to the head of state and his decision (amr al-jihad mawkulun ila’l-imam wa ijtihadihi). Compliance with the decision is the subject’s duty in terms of what the authorities deem fit in the matter.’2 Al-Buhuti (1051H/1641CE) echoes the principle: ‘Declaring jihad or not is entrusted to the head of state and his decision, for he best knows the condition of the Muslims and of the enemy.’3

4. The classical Islamic doctrine that forbids killing non-combatants and civilians in an outward (military) jihad takes its cue from the Prophet’s words, peace be upon him: ‘March forth in the name of God, trusting in God and adhering to the religion of God. Do not kill elderly men, infants, young children or women.’4 And Ibn ‘Umar relates that the Prophet, peace be upon him, ‘forbade the killing of women and children.’5

5. After quoting the last hadith, Imam al-Nawawi (d.676H/1277CE) typified the juristic consensus on the issue when he said: ‘Scholars concur upon acting by this hadith and forbid the killing of women and children, provided that they do not engage in combat. But if they do, the overwhelming majority of scholars (jamahir al-‘ulema) hold that they may be fought.’6 Ibn Qudamah, explaining the logic behind the consensus against not fighting women, the elderly, children, monks or traders, writes that each of these ‘are non-combatants (laysa min ahl al-qital).’7 Again, he states: ‘It is not permissible to kill a child among them, nor the insane, nor a woman, monk, elderly man, someone with a debilitating illness, and nor a blind man – except if they fight.’8

6. Thus, as has been shown, the intentional targeting and killing of civilians, which a fringe minority now seek to pass off as a bonafide jihad, is a gross departure from the classical juristic consensus and a perversion of the prophetic teachings. The wanton carnage and urban mayhem unleashed upon civilian lives, and the twisted re-readings of Islam’s scriptural sources by the current vanguards of terrorism, must continue to be denounced, repudiated and textually exposed. In unmasking terrorism (hiraba) for what it truly is, it has been aptly contended that: ‘Terrorism is to jihad what adultery is to marriage.’9 The Qur’an says: ‘What! Have you slain an innocent soul though he has killed nobody? Truly you have done a thing most foul.’ [18:73]

7. One argument extremists use to justify their acts of terror is to allege that civilians living in a democracy aren’t innocent at all. Their logic runs like this: In a democracy the government represents the will of the people, therefore civilian populations are complicit in their government’s foreign policies and are thus legitimate targets in war. This allegation is as false as it is factually distorted. What this reductionist everyone’s-guilty-in-a-democracy argument ignores or overlooks is that large swathes of citizens in a democracy may not agree with their government’s foreign policies, or even have voted them into power! So how can such citizens be complicit in their government’s actions? The anti-war demonstrations and protests against the Iraq war, for instance, which scores of millions of ordinary citizens across Western Europe and the United States rallied behind, is enough to show the fallacy of such logic. Moreover, as we shall see below, the shari‘ah still considers such people as not being min ahl al-qital – “actual combatants”.

8. A more direct rebuttal of this twisted logic would be to look at the context in which the Prophet, peace be upon him, prohibited the killing of women, children and other civilians in war. This injunction was given when the Prophet, peace be upon him, and the early Muslims were in the midst of war with the pagan Arabs of Makkah, whose goal was no less than the extermination of Muslims. The Makkan idolators were a tightly–knit confederacy whose tribal elders would make decisions collectively at their tribal councils. The average person in such a society had far greater access to their elders and leaders and far more influence on policies than any citizen in today’s Western democracies. In fact, it was not uncommon for women (either married or related to tribal leaders, or those with social influence) to pressurise, cajole and even threaten their husbands into war with the Muslims, on pain of family disgrace and tribal ignominy, if they did not do so. During the battle of Uhud, women, led by Hind, even went out onto the battlefield to lend moral support to the aggressors. In spite of knowing all this, the Prophet, peace be upon him, still insisted: ‘Do not kill elderly men, young children, or women.’10 And when he once saw a woman that had been killed, he said: ‘This is not one who should have been fought.’11

9. Another proof used to justify the killing of civilians is a hadith in which the Prophet was asked about some of the idolators whose settlements had been attacked at night and which resulted in a few women and children being killed. This led him to say: ‘They are from them (hum minhum).’12 There are two reasons why this hadith cannot be used in this manner: Firstly, a large body of jurists consider the hadith to have been abrogated by the explicit command to ‘not kill civilians in war.’13 Secondly, jurists who do permit night raids that could result in civilian loss clearly state: ‘This is provided they [women, children and other non-combatants] are not deliberately targeted.’14 It is also interesting that a leading jurist of early Islam, as well as the actual sub-narrator of this hadith, Imam al-Zuhri, would qualify the above hadith by immediately relating the hadith which forbids killing civilians. Thus: ‘Whenever al-Zuhri related this hadith, he would say: “Ka‘b b. Malik’s son narrated to me; from his uncle … that the Prophet, peace be upon him, forbade the killing of women and children.”’15

10. Another aspect of the shari‘ah which bears on the subject, but which has also come under extremism’s aberrant re-readings, is the notion of ‘aqd al-aman – “the covenant of security”. What this implies is that Muslims residing, for instance, in a non-Muslim land – either native born, naturalised or legal resident – are under an explicit pact or contract which renders all non-Muslim life, property and honour sacrosanct. That is, Muslim citizens of non-Muslim countries cannot engage in acts of aggression against their own state of fellow citizens. Ibn Qudamah said: ‘As for treachery towards them, this is expressly forbidden. For they only granted him security on condition that he not betray them and that they be safe from his harm. If this is not stipulated in explicit terms, it is implicitly implied. …This being so, it is unlawful for us to be treacherous to them, since this is betrayal; and our religion has no place for betrayal. The Prophet, peace be upon him, said: “The Muslims fulfil their contracts.”16‘17

11. It isn’t possible to stress enough how seriously orthodox Islam takes the obligation to honour contracts and covenants, or how unlawful it is for a Muslim who lives or resides in a land to then attack it or its citizens. What should also be appreciated is that a Muslim may even hold the following opinion with no internal contradiction with the above ten points: that America and Britain are waging wars of aggression in the Middle East; however, Muslims who are under a pledge of security may not attack their country, nor its soldiers, nor any of its citizens. One hadith has this threat of humiliation and ignominy: ‘For every person who betrays a covenant will have a flag at his back on the Day of Judgement, which will be raised according to the level of his treachery.’18

To conclude: the chorus of condemnation from Islam’s textual sources and religious authorities, against acts of terror, must continue to ring out urgently and loudly. If we wish to be dissenting voices on any issue of domestic or foreign policy, we must find legitimate ways within the democratic process to voice such dissent.

It is to their credit that Muslim scholars, despite differences between them on a whole array of theological and legal issues, have come out so unanimously against terrorism. What we also ask of them is to continue to strive to expose and eradicate the deviant notions and assumptions that underpin it. Our governments (British and American) also have a responsibility to act. For they can drain much of the extremists’ anger by securing a fair resolution to the Palestinian problem, closing Guantanamo Bay prison, and enacting just foreign policies. It is for the Muslim scholars, however, to vanquish the twisted fiqh-cum-theology of the terrorists.

1. Mufradat Alfaz al-Qur’an (Damascus: Dar al-Qalam, 2002), 208.

2. Al-Mughni (Saudi Arabia: Dar al-‘Alam al-Kutub, 1999), 13:11.

3. Kashshaf al-Qina‘ (Riyadh: Maktabah al-Nasr al-Hadithah, n.d.), 3:41.

4. Abu Dawud, Sunan, no.2614.

5. Al-Bukhari, no.3015; Muslim, no.1744.

6. Sharh Sahih Muslim (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1995), 12:43.

7. Al-Mughni, 13:178.

8. ‘Umdat al-Fiqh (Riyadh: Dar al-Mayman, 2009), 220.

9. Abdal Hakim Murad, Contentions, 5/7, at http://www.masud.co.uk

10. Abu Dawud, no.2614.

11. Abu Dawud, no.2669; Ibn Majah, no.2842.

12. Al-Bukhari, no.3012.

13. See: Ibn Hajr al-‘Asqalani, Fath al-Bari Sharh Sahih al-Bukhari (Beirut: Dar al-Kutub al-‘ilmiyyah, 1989), 6:182.

14. As per the classical Hanbali jurist, al-Buhuti, Kashshaf al-Qina‘, 3:47-8.

15. Cited in Fath al-Bari, 6:182. I am grateful to Muhammad Nizami for pointing out this report to me.

16. Al-Tirmidhi, no.1352.

17. Al-Mughni, 13:152.

18. Muslim, no.1738.

Abu Aaliyah is the founder of The Jawziyyah Institute, a leading institute for Islamic moderation and contemporary thought in the United Kingdom. Sidi Abu Aaliyah has been in involved in Dawah and Islamic teachings since 1986. He has translated a number of books from the Arabic language into English such as "The Exquisite Pearls". Abu Aaliyah's written works and audio lectures can be found online.

42 Comments

42 Comments

  1. Avatar

    Hind Pauline Thompson

    May 25, 2013 at 2:43 AM

    Jazak Allah khair for writing this article. I have shared it on Facebook. Can you first please explain the choice of picture for this article – it’s gruesome? Second, can you please explain why the Surat Al-Kahf reference is NOT taken out of context – In context the Prophet Musa (peace be on him) was making the statement when he shouldn’t have spoken against the actions of one of Allah’s servants. In that context Musa alayhi salaam should mispoke when he should have been practicing patience. I’m concerned that this reference from Surat Al-Kahf does not properly exemplify the impermissibility of killing innocents. And Allah knows best.

    • Avatar

      Masud Shorif

      May 28, 2013 at 3:31 PM

      Abu Aaliyah’s reply on his blog:

      The picture you refer to was one chosen by Muslim Matters for their blog – and have since changed, at your request.

      As for using the words of Musa, alayhi-salam, about Khidr seemingly taking the life of an innocent youth, the emphasis was on the notion that – unless the shari’ah grants justification – all life is sacred and people are innocent from that angle. And that is why Musa alayhi-salam protested: for if there were no justification in this instance, it would have been: a thing most foul.

      May Allah bless you both for your query and for reposting it here at The Humble I.

      • Avatar

        Hind Pauline Thompson

        May 29, 2013 at 4:04 AM

        Jazakum Allah khairun
        I definitely find the new picture more appropriate.
        And I now better understand the use of the ayah from Surat Al-Kahf in the article.
        May Allah reward you all

  2. Avatar

    Hind Pauline Thompson

    May 25, 2013 at 2:45 AM

    EDITED: Jazak Allah khair for writing this article. I have shared it on Facebook. Can you first please explain the choice of picture for this article? – it’s gruesome. Second, can you please explain why the Surat Al-Kahf reference is NOT taken out of context – In context the Prophet Musa (peace be on him) was making the statement when he shouldn’t have spoken against the actions of one of Allah’s servants. In that context Musa alayhi salaam mispoke when he should have been practicing patience. I’m concerned that this reference from Surat Al-Kahf does not properly exemplify the impermissibility of killing innocents. And Allah knows best.

    • Avatar

      life is a test.

      May 25, 2013 at 10:27 AM

      Hind Pauline Thompson, i agree with you about the picture!!Horrible!!!

      • Hena Zuberi

        Hena Zuberi

        May 25, 2013 at 3:30 PM

        Assalamalaykum wa rahmatula,

        The topic is gruesome. I have changed the picture after a very respectful request filled with adab by a reader on Twitter.

    • Avatar

      Abu Aaliyah

      May 25, 2013 at 3:47 PM

      Hind Pauline Thompson: Thank you for your comment. The choice of picture was not mine at all. Rather my article (and its corresponding picture I selected) is on my actual blog: http://www.thehumblei.com

      I would greatly appreciate it if you could post the latter part of your question on my blog, so I can attempt to respond to it there.

      Much obliged. Jazakallahu khayran.

  3. Avatar

    Hatim al-Ta'iy

    May 25, 2013 at 6:18 AM

    Thank you for this analysis. My question to you, Abu Aaliyah, would we what has changed from your point of you, since you translated Ibn Baz’s al-ghazw al-fikri wa wasa’ilihu al-iliktroniyya al-daqiqa as The Ideological Attack? Let us examine one of your choicer sentences:

    “And there is no doubt that negligence is one of the causes that lets the enemies of Islaam into the Muslim lands – along with their ideological attack – which gradually distances the Muslims from their Religion, step by step. So with this, evil will increase amongst them and they will be affected by the false ideologies of their enemies. And Allaah, One free from all defects, the Most High, ordered the Believers to have patience, to call to patience, and to strive in His Path using every method at their disposal; as Allaah, the Majestic and Exalted, said:

    “0 you who Believe, persevere and be more patient, and guard your territory by stationing army units permanently at the places from where the enemy can attack you, and fear Allaah in order that you may be successful.” [Soorah Aal-’Imraan 3:200]

    And Allaah, the Most Perfect, said: “And those who strive hard in Our cause, We shall surely guide them to Our Paths. Indeed Allaah is with the doers of good.” [Soorah al-’Ankaboot 29:69]”

    Surely, there can be no doubt here that what is alluded to includes the acceptability of violence in response to this alleged ‘ideological attack’. Hence, if one were to take texts such as this one as sincere nasih, one ought to conclude that Wednesday’s response in Woolwich was Islamically justified. What do you think, Ibn Anwar?

    • Avatar

      Shazad Sookram

      May 25, 2013 at 9:09 AM

      Hatim al-Ta’iy you have a really sick mind. There is nothing in Islam that can justify the murder and slaughter of innocent persons. Your are using the ayats out of context and it seems that you are an obvious trouble maker.

    • Avatar

      markibnmark

      May 25, 2013 at 9:28 AM

      @Hatim

      I don’t see how the passages you quoted from “The Ideological Attack” even remotely condone acts like the Woolwich attack. When in the history of Islam did any amir or scholar advise Muslims to conduct “lone wolf” killings in the lands of kufr? Please show me where this type of attack was ever recommended by any person of knowledge.

      The biggest problem I see that allows Muslims to conduct attacks like this is a general distance from the scholarly tradition of Islam. No scholar from Ahl-us-Sunnah has ever advised Muslims to conduct acts of treachery like this, particularly in places where one can build mosques and call openly to Islam like the UK and US. They only have the modern Khaarajites to lean upon, whose call is towards destruction and deception.

      I ask you, in what way does the Woolwich attack resemble the jihad of the Beloved Prophet (s.a.w) or the Sahaba? Where is the dawah that was so closely linked to the fighting of the salaf? Do we as Muslims no longer have a code of conduct during times of fitnah? Where is the wisdom and where is the sound leadership? Where is the moderation? Is Islam just a “personal belief” in which we can act in any way we feel is right with no guidance? What is the difference between the common refrain of so-called “jihadis”, that “times have changed” and “modern times call for different rules of conduct than in the past” any better than the modernists who want Muslims to accept evolution and secular humanism? Both of them reject the Qur’an and Sunnah to suit their agendas.

    • Avatar

      Abu Aaliyah

      May 25, 2013 at 4:02 PM

      Oh dear Hatim. I am stupefied by your logic. May Allah forgive me and you and move us on from the darkness that plagues our hearts.

    • Avatar

      Adnan

      May 25, 2013 at 7:32 PM

      Salam Alaikum, just a general question. From where do we translate the single word “rābitū” into the lengthy phrase “guard your territory by stationing army units permanently from where the enemy can attack you.” As far as I know, the verb has meanings to “tie down” (as in to tie a camel so it doesn’t run away), or “prepare,” “fortify,” or “strengthen.” In Surah Kahf, God says “wa rabatnā ‘alā qulūbihim” – “We strengthened their hearts.”

      I’m sure the meaning of “rābitū” is far more expansive than the strict military sense used above, which seems to be the Hilali and Khan version. I’m sure the translators had some reason for translating the word militaristically, but I fear it constrains the expanse of the Quran’s meaning far too much.

      And to Abu Aaliyah, jazakumullah khair for your beautiful response to Hatim.

      • Avatar

        Gibran

        May 27, 2013 at 1:35 AM

        wa alaykumusalam wa rahmatullahi wa barakatuh

        Adnan, I remember that ribat is guarding the territory to maybe that will answer the question.

        Here is Tafsir Ibn Kathir

        Allah said,

        ﴿يَـأَيُّهَا الَّذِينَ ءَامَنُواْ اصْبِرُواْ وَصَابِرُواْ وَرَابِطُواْ﴾

        (O you who believe! Endure and be more patient, and Rabitu) ﴿3:200﴾.

        Al-Hasan Al-Basri said, “The believers are commanded to be patient in the religion that Allah chose for them, Islam. They are not allowed to abandon it in times of comfort or hardship, ease or calamity, until they die as Muslims. They are also commanded to endure against their enemies, those who hid the truth about their religion.” Similar explanation given by several other scholars among the Salaf.

        As for Murabatah, it is to endure in acts of worship and perseverence. It also means to await prayer after prayer, as Ibn `Abbas, Sahl bin Hanif and Muhammad bin Ka`b Al-Qurazi stated. Ibn Abi Hatim collected a Hadith that was also collected by Muslim and An-Nasa’i from Abu Hurayrah that the Prophet said,

        «أَلَا أُخْبِرُكُمْ بِمَا يَمْحُو اللهُ بِهِ الْخَطَايَا، وَيَرْفَعُ بِهِ الدَّرَجَاتِ؟ إِسْباغُ الوُضُوءِ عَلَى الْمَكَارِهِ، وَكَثْرَةُ الْخُطَا إِلَى الْمَسَاجِدِ، وَانْتِظَارُ الصَّلَاةِ بَعْدَ الصَّلَاةِ، فَذلِكُمُ الرِّبَاطُ، فَذلِكُمُ الرِّبَاطُ، فَذلِكُمُ الرِّبَاط»

        (Should I tell you about actions with which Allah forgives sins and raises the grade Performing perfect ablution in unfavorable conditions, the many steps one takes to the Masajid, and awaiting prayer after the prayer, for this is the Ribat, this is the Ribat, this is the Ribat.)

        They also say that the Murabatah in the above Ayah refers to battles against the enemy, and manning Muslim outposts to protect them from enemy incursions inside Muslim territory. There are several Hadiths that encourage Murabatah and mention its rewards. Al-Bukhari recorded that Sahl bin Sa`d As-Sa`idi said that the Messenger of Allah said,

        «رِبَاطُ يَوْمٍ فِي سَبِيلِ اللهِ خَيْرٌ مِنَ الدُّنْيَا وَمَا عَلَيْهَا»

        (A Day of Ribat in the cause of Allah is better than this life and all that is in it.)

        Muslim recorded that Salman Al-Farisi said that the Messenger of Allah said,

        «رِبَاطُ يَوْمٍ وَلَيْلَةٍ خَيْرٌ مِنْ صِيَامِ شَهْرٍ وَقِيامِهِ، وَإِنْ مَاتَ جَرَى عَلَيْهِ عَمَلُهُ الَّذِي كَانَ يَعْمَـــــــلُهُ، وَأُجْرِيَ عَلَيْهِ رِزْقُــــهُ، وَأَمِنَ الْفَتَّان»

        (Ribat for a day and a night is better than fasting the days of a month and its Qiyam (voluntary prayer at night). If one dies in Ribat, his regular righteous deeds that he used to perform will keep being added to his account, and he will receive his provision, and will be saved from the trials of the grave.)

        Imam Ahmad recorded that Fadalah bin `Ubayd said that he heard the Messenger of Allah saying,

        «كُلُّ مَيِّتٍ يُخْتَمُ عَلى عَمَلِهِ إِلَّا الَّذِي مَاتَ مُرَابِطًا فِي سَبِيل اللهِ،فَإِنَّهُ يَنْمِي لَهُ عَمَلُهُ إِلى يَوْمِ الْقِيَامَةِ، وَيَأْمَنُ فِتْنَةَ الْقَبْر»

        (Every dead person will have his record of deeds sealed, except for whoever dies while in Ribat in the cause of Allah, for his work will keep increasing until the Day of Resurrection, and he will be safe from the trial of the grave.)

        This is the same narration collected by Abu Dawud and At-Tirmidhi, who said, “Hasan Sahih”. Ibn Hibban also collected this Hadith in his Sahih. fAt-Tirmidhi recorded that Ibn `Abbas said that he heard the Messenger of Allah saying,

        «عَيْنَانِ لَا تَمَسُّهُمَا النَّارُ: عَيْنٌ بَكَتْ مِنْ خَشْيَةِ اللهِ، وَعَيْنٌ بَاتَتْ تَحْرُسُ فِي سَبِيلِ الله»

        (Two eyes shall not be touched by the Fire: an eye that cried for fear from Allah and an eye that spent the night guarding in Allah’s cause.)

        Al-Bukhari recorded in his Sahih that Abu Hurayrah said that the Messenger of Allah said,

        «تَعِسَ عَبْدُالدِّينَارِ وَعَبْدُالدِّرْهَمِ وَعَبْدُالْخَمِيصَةِ، إِنْ أُعْطِيَ رَضِيَ، وَإِنْ لَمْ يُعْطَ سَخِطَ، تَعِسَ وَانْتَكَسَ، وَإِذَا شِيكَ فَلَا انْتَقَشَ، طُوبَى لِعَبْدٍ آخِذٍ بِعِنَانِ فَرَسِهِ فِي سَبِيلِ اللهِ، أَشْعَثَ رَأْسُهُ، مُغْبَرَّةٍ قَدَمَاهُ، إِنْ كَانَ فِي الْحِرَاسَةِ كَانَ فِي الْحِرَاسَةِ، وَإِنْ كَانَ فِي السَّاقَةِ كَانَ فِي السَّاقَةِ، إِنِ اسْتَأْذَنَ لَمْ يُؤْذَنْ لَهُ، وَإِنْ شَفَعَ لَمْ يُشَفَّع»

        (Let the servant of the Dinar, the servant of the Dirham and the servant of the Khamisah (of clothes) perish, as he is pleased if these things are given to him, and if not, he is displeased. Let such a person perish and be humiliated, and if he is pierced with a thorn, let him not find anyone to take it out for him. Paradise is for him who holds the reins of his horse, striving in Allah’s cause, with his hair unkempt and feet covered with dust: if he is appointed to the vanguard, he is perfectly satisfied with his post of guarding, and if he is appointed in the rearguard, he accepts his post with satisfaction; if he asks for permission he is not permitted, and if he intercedes, his intercession is not accepted.)

        Ibn Jarir recorded that Zayd bin Aslam said, “Abu `Ubaydah wrote to `Umar bin Al-Khattab and mentioned to him that the Romans were mobilizing their forces. `Umar wrote back, `Allah will soon turn whatever hardship a believing servant suffers, to ease, and no hardship shall ever overcome two types of ease. Allah says in His Book,

        ﴿يَـأَيُّهَا الَّذِينَ ءَامَنُواْ اصْبِرُواْ وَصَابِرُواْ وَرَابِطُواْ وَاتَّقُواْ اللَّهَ لَعَلَّكُمْ تُفْلِحُونَ ﴾

        (O you who believe! Endure and be more patient, and Rabitu, and have Taqwa of Allah, so that you may be successful)’ ﴿3:200﴾.”

        • Avatar

          Gibran

          May 27, 2013 at 1:40 AM

          By the way, Hatim, maybe I’m being a bit lazy but I really didn’t understand your comment. Care to clarify what you mean brother?

          This article is pretty sound and straight to the point. About time. You hardly find clear articles like this based on what the ulema and the fuqaha said on this topic.

          • Avatar

            Gibran

            May 27, 2013 at 1:41 AM

            OUCH. I was supposed to include JazzakAllahu khair in that second comment to Abu Aaliyah.

            JazzakAllahu khair Abu Aaliyah.

        • Avatar

          Adnan

          May 29, 2013 at 10:24 PM

          Jazakumullah khair Gibran,

          The hadith you quoted of Abu Hurairah precisely illustrates my point – that the Prophet (saws) said that one sense of “ribāt” is to perform ablution perfectly, walk to the masjid, and await for the prayer. The strict militaristic translation of “rābitū” above (“guard your territory by stationing army units permanently from where the enemy can attack you”) seems to unnecessarily limit the wideness of the word’s meaning and exclude the understanding by which the Prophet (saws) used the term.

          God knows better.

  4. Avatar

    Fatima Ariadne

    May 25, 2013 at 2:08 PM

    Thank you for writing this matter. Now sadly once again the Islamphobes and kuffar will find another excuse to put Islam and muslims under scrutiny. I’m not a scholar to say this, but from what I’ve learned inshallah, underhand killing like this is haraam and not allowed in the sight of sharia. Allahu musta’aan.

  5. Avatar

    themuslimanarchist

    May 25, 2013 at 6:07 PM

    i agree with the points, and even though i have never contracted a security covenant having been born on this land (forget passport, you have to get one to get your inalienable right to travel). the issue of treachery is valid. and Muslims are not treacherous.

    that said a little about the herofication of Lee Rigley the squaddie who was killed and served in helmand province where many atrocities took place by British squaddies.

    every person is responsible for their actions and the get out clause of just doing my job is wrong. every one has a choice, even if it is a hard choice. there are many squaddies who refused to serve in Afghanistan , and where promptly thrown in jail for 6 months. they choose correctly

    so this squaddie is a criminal for the very fact of invading Afghanistan and is not innocent. he is a criminal, not a hero.

    and those that perpetuate the lie that he and other serving squaddies are innocent perpetuate the oppression.

    Only Allah knows if Lee Rigley has received his just dues, and so will not shed a tear for him.
    but I also will not condone the actions of these two Muslims in Woolwich.

    • Avatar

      Kirana

      May 26, 2013 at 4:41 AM

      But that’s the thing though, isn’t it? All the above points in the article detail the limits to what a Muslim may do. And this remains inviolable no matter if the other side has transgressed it or really has done unspeakable things. Full stop. That is the essence of being a Muslims and what makes our religion different, what changes us to be different from people without guidance. We are not free to follow our passions and what we feel is justified. We observe our limits even under oppression, anger, having suffered injustice and harm, because we submit (Muslims). All else must be left to Allah, we must replace it with patience, trust, forbearance.

      This is not easy and God Himself has given us fair warning in His Book that it is not easy to be Muslim – not in the sense of lots of things to do (in that regard this is supposed to be a simple religion), but this single concept of submission and keeping within limits will be tried tremendously and many will waver from a lack of faith and patience.

      • Avatar

        markibnmark

        May 26, 2013 at 10:52 AM

        Jazak Allah khair for this excellent post. Many Muslims think it is O.K. for us to transgress the limits and make up our own rules. This is Allah’s religion, not our own to bend and mold to suit our desires.

        We should behave differently from the non-Muslims, not just say (like a child would): “Well they did it first, so we can do it too!” Our standard of behavior must be higher.

  6. Avatar

    Student

    May 25, 2013 at 7:49 PM

    I usually never write here but today with this article I felt necessary. I think Shaikh mentioned some very crucial points and did Masha’Allah a very good job of addressing this issue. I would like to add just my two bits:

    Why did the person commit such an act? In the video, I believed she proclaimed that this is to show the western world the realities of toruture faced by muslims around the world.

    Historical analysis condemns this act as well:

    1. Prophet (SAW) in Makah: A few years after revelation, when he was in Makah, the Muslims were being tortured, while the people in Madina were reverting. The torture exalted to a great extent in Makah before migration, my question to you brother and sister’s did the muslim in madinah, torture or kill the Makans that might have visited madinah during this time? Harm the Jews or the hypocrites?

    2. prophet (SAW) in madinah: While in Madinah, his family in Makah, and other muslims were still tortured and some may even have been killed. When people travelled from Makah to Medinah, did he hurt them or torture them or kill them? Did he harm the hypocrites? By the grace Almightly Allah (SWT) he knew who was the hypocrite.

    Jazakhallah khairun,

    May Allah (SWT) give us all hidaya. AMEEN.

  7. Avatar

    learningquranonline

    May 25, 2013 at 8:14 PM

    Islam is a great religion. It does not preach terrorism.

  8. Avatar

    tariq huq

    May 26, 2013 at 2:14 AM

    Assalamu Alaikum!

    How do we understand the hadith “Jihaad shall remain until the hour is established”?

    • Avatar

      markibnmark

      May 26, 2013 at 10:56 AM

      It’s not complicated. There is true, legitimate jihad that falls under the constraints of the Qur’an and Sunnah. And then there is the lawless anarchy promoted by the Neo-Kharajites. Learn the difference from real scholars, not internet forums and You Tube videos.

      • Avatar

        tariq huq (@tariqhuq)

        May 27, 2013 at 6:56 AM

        JazakAllah Khair. By asking the understanding of the hadith I in no way condone much of what is happening in the name of jihaad.

    • Avatar

      Gibran

      May 27, 2013 at 1:48 AM

      wa alaykumusalam wa rahmatullahi wa barakatuh

      What I took from the article is that we cannot be terrorists and such a thing is truly against Jihad.

      However, that doesn’t mean jihad doesn’t exist. Look at Syria for example.

      • Avatar

        KTShamim

        May 28, 2013 at 7:47 PM

        Syria??? Is it Jihad to support Bashar Al Assad who is being supported by Russia? Or is it Jihad to support the opposition army who are being supported by USA? Russia’s Jihad? USA Jihad? Are these Islamic Jihads?

        Please …

        [Qur’an 22:40-41] “Permission to fight is given to those against whom war is made, because they have been wronged — and Allah indeed has power to help them —
        Those who have been driven out from their homes unjustly only because they said, ‘Our Lord is Allah’ — And if Allah did not repel some men by means of others, there would surely have been pulled down cloisters and churches and synagogues and mosques, wherein the name of Allah is oft commemorated. And Allah will surely help one who helps Him. Allah is indeed Powerful, Mighty —”

        Condition 1: Wronged
        Condition 2: Driven out from homes
        Condition 3: Because they said ‘Our Lord is Allah’

        Tell me one place in the world where Condition 3 is met?

  9. Avatar

    GC66

    May 26, 2013 at 8:35 AM

    Your name alone “muslimanarchist” tells one that you do not understand the teachings in the Quran, for anarchy is indeed a crime punishable by death for Muslims that condone such actions.

    • Avatar

      themuslimanarchist (@muslimanarchist)

      May 26, 2013 at 9:33 AM

      anarchism is a modern term that has gone from meaning no govt/light government to no rules. it is there to counter the modern phenomanom of all invasive govt

      islam was and should be govt light. go research the role of private jurists , the medina constitution and the core principle of Islam – the ability and given right to CHOOSE to worship Allah –

      ignorance is no excuse to question my knowledge.

      • Avatar

        GC66

        May 26, 2013 at 9:44 AM

        I put no faith as a Muslim in Fiqh at all.

        This is the problem with extremism in Islam today.

        I will adhere to the shariah, sunnah and my logic and reason in prayer to Allah over all matter.
        The only haddith I will consider is the undisputed

  10. Avatar

    GC66

    May 26, 2013 at 8:50 AM

    Perhaps this is meant as the greater jihad or the struggle against Shatan and this world from within ourselves as individividuals(Muslims)in the way of true Islam.

  11. Avatar

    KTShamim

    May 26, 2013 at 9:53 AM

    Excellent headline!

    Muslimsforlife(dot)org – successfully collected 10,000 pints of blood to honor 3,000 dead of 9/11 (by saving 30,000 lives.
    Muslimsforpeace(dot)org – condemning terrorism, promoting Islamic value of loyalty to ones nation, peace, bus-ads and flyers and leaflets to promote the same.
    love4all(dot)org(dot)uk – We serve humanity in many ways including a wide range of activities that provide disaster relief, medical facilities, energy, education and self-help programmes across the world.

  12. Avatar

    themuslimanarchist (@muslimanarchist)

    May 26, 2013 at 6:33 PM

    looks like the state (mi5) broke their life and security pack with Michael by threatening to leave him to rot in kenya unless he did as they said, and decided that if hes going to go down for not being an informer then he might as well take one of the murdering rapist squaddies with him http://t.co/ouwocf7Jv8 just saying

  13. Avatar

    Mansoor Ansari

    May 28, 2013 at 6:10 PM

    Awesome article but the only thing is no one really agrees on what terrorism is. To some to even defending your land from invading forces is terrorism and to some even speaking against these invasions or even reading about what’s happening to some ppl is supporting terrorism. The first step should to define what it means for it us it to fight correctly.

    What confuses a layman like me is if covenants/treaties matter so much and we can’t go against the govt/ruler and can’t attack their own country, how come we have abandoned these principles and hadiths when it comes to Syria (currently) and Libya (in 2011)? Islamic scholars from around the world include western ones proudly call it jihad while it’s seems to contradict point 10 and 11. I would really appreciate if someone can shed light on this.

  14. Avatar

    adeeb

    April 23, 2014 at 4:51 PM

    Assalaamu alaikum
    I read a fatwa in islamqa.com by shaykh bin baz which says non muslims(other than people of book) can be forced to embrace islam & the verse of no compulsion & all verses of peace are abrogated. It says we should fight polytheists till they become muslim! Is this fatwa correct and how should we refute it? The following fatwa claims that its abrogated, is it correct? the fatwa’s link::http://islamqa.info/en/34770

  15. Avatar

    Waqar

    November 4, 2014 at 10:30 AM

    What you have quoted from Quran in #6 is from 18:74 and not 18:73, please correct.

    • Avatar

      KT Shamim

      November 12, 2014 at 8:43 AM

      I include Bismillah as the first verse so … but yeah many texts don’t do that.

  16. Pingback: Terrorism Violates 3 Key Tenets of Islam - MuslimMatters.org

  17. Avatar

    Abu Aasiyah

    November 14, 2015 at 6:20 AM

    As-Salaamu ‘alaykum,

    I noticed a mistake: In the paragraph of point 5. it says “consensus against not fighting women, the elderly, children, monks or traders”. It should be “consensus against fighting…”, i.e. the “not” should be deleted.

    Baarakallaahu feekum!

    • Abu Aaliyah

      Abu Aaliyah

      November 14, 2015 at 1:53 PM

      WA alaykum as-salam wa rahmatullah.

      Thank you for pointing out that serious typo. I’ve now made the necessary correction.

      • Avatar

        Abu Aasiyah

        November 14, 2015 at 3:03 PM

        You’re welcome, Shaykh!

        It’s still the same. Perhaps there was a technical issue and editing the text didn’t work?

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#Islam

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

Dr Usaama al-Azami

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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. 899/1442) and Abu Bakr al-Tartushi (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  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 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.

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#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

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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.

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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

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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.

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