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Why Studying And Teaching Aqidah is Necessary for the Ulama And Students of Knowledge

Shaykh Hamzah Wald Maqbul

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Sunnism is suffering an identity crisis: other than not self-identifying as a Shī’ite, very few people who identify as Sunnīs can explain what beliefs makes a person a Sunnī. This has left a bleeding wound in people’s conception of Islām, through which infections such as Qādiyānism, Rāfidism, Progressivism, Modernism, and other forms of misguidance cause many well-meaning people great damage to both their faith as well as their worldly existence.

Otherworldly concerns of protecting people from the harm of odious deviation from the pure faith, which can delay or deny salvation, tag along with the deleterious effects of the pursuits of sectarian agendas in the guise of religion which are literally burning entire nations like Syria and Yemen to the ground in front of our eyes. At the same time Muslims living in North America and Europe are witnessing a coup against established legal, cultural and spiritual norms in the name of progressivism and liberalism, which confusingly seem to come from quarters which are, politically, less openly hostile to some version of an established Muslim presence. The chasm which is opening because of this coup threatens to divide what used to be the common Sunnī identity in these lands into a Reform/Conservative/Orthodox-type divide which currently exists in the Jewish community; the reform identity being roughly one of radically jettisoning canonical interpretive methodology and precedent. Conservatism is acknowledging the need to do what Reform Judaism did, while preserving the traditional forms of Judaism when practical. Orthodoxy has been seemingly left behind as an attempt to carry on the premodern Jewish theology and law, uninterrupted by modernity.

One should note that this divide within Judaism started from the United States, and has now pervaded the Jewish world, and likewise, if such a chasm formally opened up in the United States, it would be a matter of import for the entire ummah, as the Messenger of Allāh ﷺ stated, “You will follow those who went before you hand’s breadth for hand’s breadth, cubit for cubit, to the point that if they went into a lizard hole, you would also go into it.” They asked him ﷺ, “Do you mean the Jews and Christians?” He ﷺ replied, “Who else?” [1]

To the scholarly past of this ummah, the obvious place to find the necessary guidance to solve the above-mentioned problems should be in the books of ʿAqīdah of the Sunnī Kalām tradition; however, this seems to not be as obvious anymore to the ummah as it should be, and for that reason a number of problems arise.

The following tract, by Allāh’s help, is meant to investigate these problems, and to make the case that a serious revival of the study of ʿAqīdah in our communities is one of the foremost obligations upon Muslims today.

How Has the Study of Aqidah Fallen From Importance?

There are many reasons why the study of ʿAqīdah has fallen out of favor. Firstly, the lay public, due to sectarian influence of foreign groups, has come to see the word ʿAqīdah as a codeword for polemical infighting, something which most North American Muslims rightly intuit will lead to little or no benefit. Thus, the word ʿAqīdah now conjures up images of brothers pointing fingers upwards and asking, “Where is Allāh?” or whether or not you believe that the Messenger of Allāh ﷺ is omnipresent in all points of time and space. Such issues are irrelevant to the public.[2] Worse yet, they are weaponized by some and result in dissention and division within congregations.

Secondly, many madāris have severely downplayed if not outright jettisoned the study of Kalām[3] other than for the purpose of refuting heterodox groups. Worse yet, sectarian partisans use it to cut down other legitimate views within Sunnism, as if they are a patent falsehood, even though the matters at hand are, at most, differences of opinion. Although refutation is a legitimate purpose of the knowledge of ʿAqīdah, it is hardly the aim of its study. It is more important for a believer to know who he is, rather than who he isn’t: the former is based on the knowledge of revelation, whereas the latter is more conveniently facilitated by sectarian animus. It is important to note that revelation “taught man what he knew not”,[4] whereas even the people of falsehood are adept at circularly refuting one another.

Thirdly, much of the lay public has come to the idea that the old works of Kalām, even if a sentimentally important part of our intellectual heritage, lack relevance to today’s more pressing issues. Many may ask, what can Rāzī, Ghazālī, and Juwaynī practically teach me to prepare for an encounter with New Atheism or Liberalism, or any number of other prevalent ideologies at odds with the way of life prescribed by revelation?

The Role of Scholars & Students of Knowledge

For the reasons outlined above, scholars and students of knowledge have a responsibility[5] to act as facilitators and intermediaries between the laity and revelation’s Divine and prophetic sources. There are many benefits that the ummah will take from a clerical class well-grounded in Sunnī ʿAqīdah. Unfortunately, the very need for this class of specialists in the information age,[6] something taken for granted in past generations, requires explanation today.

Requisite Qualification

Pious and illuminated hearts and minds must disseminate the sacred creed of Islām, not use sectarianism to divide the ummah, build socio-political clout, or win followers and disciples,[7] but in order to show Muslims who they are, rather than who they aren’t. Only then will people once more start to see the Sunnī ʿAqīdah as a source of guidance and intellectual-spiritual order.

Indeed, the balance between the rational need for limits and an inclusivity which can only come from the generosity of being connected to the Divine is found in the Sunnī creed. Achieving this balance is a hallmark of being an imām[8] in this tradition. The emulation of the prophetic model is in bringing sincere believers together whenever it is possible, and separating individuals from the flock only when absolutely necessary. Thus, did Imām Ṭaḥāwī explicitly declare that anyone who meets even the most minimal standard for a valid islām is a walī[9] of Allāh, even if they are sinners or, in some instances even misguided.[10] It was a strong statement, and one he meant to make.

Large scale propagation of ʿAqīdah in such a way will negate the stigma of sectarianism by showing people the point of ʿAqīdah (a framework through which to view the world) and not a degenerate form of divisive sectarianism. It will also give people the understanding that whoever drives exclusionary sectarianism within the Sunnī populace, isn’t doing so as a representation of Sunnism; rather, it is a sign that something else is at play. In order to get the vastness of the ummah on to the same page in mind, then spirit and body, the framework of Sunnī ʿAqīdah must become the common thought currency between all Muslims, regardless of race, madhhab, Sufic association, socioeconomic status, occupation, or nationality.

The benefits to the ummah of the wide and proper dissemination of ʿAqīdah by no means stops there. Much of the abandonment of the commandments of the sacred Sharīʿah has to do with the lack of understanding amongst laypeople about the importance of Fiqh and its various sources rooted in revelation;[11] If they understood the importance of the law, they would be more avid to implement it, appreciating the elegance by which they are inseparable. In that sense, an overemphasis on the sacred law in comparison to both ʿAqīdah and Taṣawwuf when ministering to the public may be a cause of its diminished acceptance amongst that same public, as it is tough to bring the body to do things when the mind[12] and heart[13] aren’t in it.

As important as the dissemination of the sacred creed is, however, it can only be done on the heels of a solid understanding of it. This requires a depth of study by the scholarly class that goes beyond a basic minimum belief for a valid īmān. Maintaining a cohort of the learned who are custodians of such understanding is an obligation on communities; indeed, many a non-farḍ matter on individuals becomes a farḍ kifāyah on communities and sovereign states.[14] This is the case for all of the disciplines necessary in order for the Dīn of Allāh to be understood, implemented, and defended at individual and collective levels.

Methodology is Critical

This brings us to another matter which is one of great concern to anyone who has dedicated their life to knowledge, beyond the pursuit of degrees, ijāzāt, clerical career opportunities and fame as preachers and leaders; that is the uṣūlī nature of the sacred Sharīʿah. Uṣūl are the universal principles which make up for framework within which the individual rulings of the sacred Sharīʿah fit. The uṣūlī nature of the sacred Sharīʿah, and its understanding was always the crown pursuit of the greatest of the scholars. In fact, to call a scholar an uṣūlī is to bear witness to the integrated seamlessness and encyclopedic knowledge of the sharīʿah, bringing names like Ghazālī and Shāh Walīyyullāh to mind. The idea is that the Dīn of Allāh isn’t just a scattered distribution of rules, verses, statements and prohibitions to be read atomistically;[15] rather, those discrete data points fit into uṣūlī models and theoretical frameworks that undergird the different branches of learning in Islām. Thus, Ḥadīth is governed by uṣūl al-Ḥadīth, Fiqh is governed by uṣūl al-Fiqh[16], Tafsīr is governed by uṣūl al-Tafsīr, and so on. The reason is that without a methodology a person can hardly take an objective stance on any matter, much less understand large fields of information in a cohesive and cogent manner. All of these uṣūlī systems in turn are undergirded by ʿAqīdah, which is the Uṣūl of Uṣūl; it is perhaps for this reason that Imām Abū Ḥanīfah, may Allāh have mercy on him, named his work on ʿAqīdah with such a gravity, al-Fiqh al-Akbar.[17]

Jettisoning a holistic Usūlī approach to the Dīn by fixating on individual verses, aḥadīth, and legal rulings has allowed the jackals and hyenas who prey on this ummah to masquerade as representatives of the Islām and flagbearers of the Sunnī tradition,[18] whether they be in the form of modernists, terrorist groups, neo-Salafists,[19] neo-traditionalists, neo-Kharijītes, or the like. When uṣūl are cast aside, such groups can now regurgitate particular data points from the Islāmic tradition with enough charisma to woo audiences to their respective agendas.

Modern day reductionists have peddled the idea that uṣūl are an unneeded vestige of medieval foolery, and must today be replaced by the empiricism of hard evidence in the form of literal text. While other scholarly endeavors like taḥqīq and takhrīj are worthy, they are not substitutes for uṣūl. Powered by the false confidence a literalist worldview engenders, unscrupulous operators resort to forcing the mismatched puzzle pieces together in new, scary and, incoherent ways. Indeed, many committed Muslims, upon encountering textual evidences produced by reductionists, find themselves at a loss to explain what is specifically wrong with such groups’ picture of Islām. From that pool, many subsequently join or at least tacitly support such groups, much to the spiritual, economic, political and social detriment of the ummah. Why would anyone bother to rearrange the sharīʿah in such a way? In order to deceptively harnesses the demographic, economic power of the love and zeal of the masses for Islām. If the Bolsheviks could do it, anyone can; indeed, their spiritual heirs,[20] may Allāh protect us from them, continue do so.

Uṣūlī thinking imparts a methodology by which one can understand the Dīn at a deeper level. It also gives its practitioner the ability to consume and solve new problems and digest issues which arise from unprecedented circumstances. I would go one step further and say for the robust intellect, nothing in creation would be “new”[21] anymore. Indeed, I can affirm that at least in my own experience many “new” challenges to Islām’s worldview are, in essence, rehashings of old challenges (albeit with different modalities). More often than not, historic iterations were far more sophisticated than contemporary ones. Due to the modernism’s reductionist approach,  philosophers have become largely irrelevant in the popular arena: the new standard bearers of materialism are often scientists, hard[22] or soft,[23] whose touting of materialism (and the atheism which inevitably emerges from it), is sophomoric at best.

The idea that uṣūl, or understanding how to think, is distinct and in many ways superior to only knowing what to think, should not be lost on any rational person.

The Continual Benefit of Kalām and the Harm in Ignoring It

Yet another sad consequence of abandoning the study of ʿAqīdah has been well-intentioned and ostensibly Sunnī public intellectuals, often very accomplished in Western Academia, but lacking even a basic command of classical Arabic, hastily dismiss Kalām as not being relevant to the “new” challenges posed to Islām and its intellectual framework. The strange thing is that many who express sentiments like this lack competence classical Arabic, yet believe their readings in English qualify them to make such serious judgments. Can you imagine what a mockery would be made of someone who only could speak and read Urdu and whatever was translated into it began to comment with an air of authority on theoretical physics or cutting-edge medical research? Even more frustratingly, those intellectuals who can access classical Arabic rarely have actually taken the time to read the old books of Kalām in any serious way, much less with a teacher.[24]

A noteworthy exception to the idea that all or most antagonists to the Kalām tradition are untrained in the classical Arabic sources are those who currently hold a position attributed to many of the salaf, namely that kalām is unsubstantiated speculation regarding revelation and the very nature of Allāh, thus a sin worse than theft and fornication, which is most widely ascribed to the Imām Aḥmad bin Ḥanbal, may Allāh sanctify his heart, and those who follow his school. Without casting any aggression toward this opinion which holds some merit, especially for the context in which it was first held, it goes without saying that such an approach will struggle to offer any help to a university student dealing with the ideological hailstorm on campus….

Such an attitude has gained currency among many generous and reverent defenders of Islām who opine that kalām held a useful function in the past, but gives the contemporary Muslim little preparation for the onslaught liberal modernity is directing at the world. Similarly, other less well-intentioned academic and post-colonial intellectual elites, hold en vogue a vision of Kalām as a kind of fossilized carcass, declaring it an irrelevant and even decadent feature of a past, best left behind. What’s fascinating here is that, both share a similar belief in history’s linear progress; somehow the future, solely by virtue of it being the future, necessarily brings with it more sophisticated challenges than the past did, a hallmark of haughty modernist thinking.

This idea seems to be validated in the colonized mind when it soaks in the stark reality of disenfranchisement and defeatism that surrounds it. I state here unequivocally that the ability to marshal armies and death-raining technology does not necessitate intellectual superiority. Nor is the ability to kill and enslave people an attribute of the ḥaqq.[25]

Yet still many Muslims wonder: what could discussions regarding the classical ideas about materialism or polemical refutations of the Muʿtazilah and Bāṭiniyyah have to do with answering Richard Dawkins, Neil deGrasse Tyson, Liberalism, and the like?

The answer is more than you think.

The arguments of scientists against religion are not as seemingly unassailable as they may appear. As empirical philosophers, they themselves have jettisoned a large part of rationality from their own discourse, vaingloriously declaring that if it can’t be seen, heard, tasted, touched, smelled or measured, it doesn’t exist. Such an unexamined statement, when taken to its logical conclusion, would have us revert to Roman numerals and render the Big Bang a rational conundrum.

The arguments for kufr, all of which, whether in the form of polytheism or atheism, all depend on affirming the divinity of the material things of this universe, in similar, but subtly different ways.

It is a maxim of the scholars based on a number of statements of revelation that all the different types of kufr, ultimately comprise of one millah.[26] For example some said that God resides in everything. Others said that God was born in the flesh. Some said that there is no God. All, however, in order to explain the incoherence of everything spontaneously existing from nothing, stated that the material universe must have always had attributes Muslims ascribed to the Divine. Many resort to claiming it existed in some cyclically reiterating form,[27] and thus will continue to do so, possessing pre-primordiality and eternity, both being essential attributes of what we call God. It is against this backdrop that Islām, rather than assigning Divine attributes to the creation, affirms Allāh’s being thoroughly unlike His creation and transcendent above it.

It is from this basis that the Kalām tradition painstakingly refutes many possible contortions and adjustments that kufr can, has, and will make in order to free itself from the trap of its own initial incoherence. Through study of those refutations, a roadmap to answers to modern obsessions like “if God is so omnipotent, why are children born with deformities?”; “why can’t we refer to God as a she,”; or “If God exists, show him to me, and if you can’t, admit He doesn’t exist,” comes into clear view. Once the existence of Absolute Truth is established and necessarily affirmed, the moral and existential chaos of an absolutist relativist (yes, I’m aware of how silly it sounds) liberal modernity is resolutely challenged. Without that affirmation, answering simple questions like “Who am I?” becomes cumbersome.[28]

Epilogue: Ijtihād

I’d like to conclude, not by neatly wrapping the discussion up, but by throwing a number of doors open, namely the doors of ijtihad, which were never closed in the first place, at least for those whose purview it was and remains. Ijtihād is a very interesting idea, one of which many speak but few understand. Much like playing on a professional sports team is the preserve of the elite of that sport, ijtihād is an actual reality for those few who combine the God-given spiritual[29] and intellectual strengths needed to have a shot at it, with the years of hard work and practice. Also, much like professional sports, although there may be only a handful of legitimate practitioners of ijtihad, there are thousands, if not millions of pretenders behind them ready to dream about it, talk about it and offer their detailed commentaries about it—commentaries bearing various levels of insight and/or connections to any kind of reality. The current reductionist, atomistic approach that is in fashion amongst the intelligentsia is an antagonist to an uṣūlī, methodologically consistent approach to anything in the Dīn; the lack of study of ʿAqīdah shuts out the student from uṣūl at the ground floor as ʿAqīdah itself forms the foundation of uṣūl.

The preservation of ijtihad and its requisite branches of learning requires that there be a body of literature and group of people who can trace the final product of the various branches of Islāmic learning from source materials to the final prescriptions found in the canonical texts of the different sciences. A pseudo empirical-textual fixation not only subverts the superiority of the living tradition as described above, but also renders ijtihad practically meaningless. Supplanting the importance of uṣūl, which is the craft of ijtihad, games the system in the direction of literalism, or worse yet, a type of literalistically-inspired mya[30] in which each individual, who may be busy becoming a doctor, shopping, on Facebook and Twitter, and giving their opinion, interprets text based on the meaning that most strongly occurs to them.

In such a nightmarish reality,[31] truth, authority, reason and orthodoxy are replaced with a type of democracy of stupidities. This has been described in the ḥadīth of the Messenger of Allāh ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him): “Whoever speaks about the Qurʾān by his own opinion is wrong even if [he happens to be] right.”[32] The implication here is that the methodology by which the truth is sought is so horrid that it nullifies any possible benefit of randomly arriving at a correct conclusion. The similitude is one of a person who, instead of waiting to land at the airport and taking a cab home, jumps from the airplane as it flies over his house; timing his jump with a nearly impossible accuracy. Even if he is lucky and arrives at his destination, his arrival is not in any worthwhile manner.

Aside from the damage such an approach inflicts on the intellectual establishment of the Dīn due to its rabid irregularity, what is perhaps most tragic is how such intellectual vigilantism robs the top minds of the ummah of the chance to see the bigger picture when it comes to the sacred sharīʿah. Muslim scholars do not celebrate Abū Ḥanīfah and Mālik, amongst the salaf and Imām al-Ḥaramayn, Ghazālī, Shāṭibī, Qarāfī, Shāh Waliyyullāh, and others from the latter generations for amassing pages filled with attestations to particular rulings. Rather, they are looked to as beacons of light for their ability to explain the uṣūlī theory upon which the well-known precedents of the Sharīʿah were based. In many cases, they showed how that same uṣūl could be used to extrapolate rulings where no precedent existed.

Such a big picture understanding of the sacred Sharīʿah can only come from an uṣūlī understanding, the appreciation of which can only come with a solid foundation in the robust study of ʿAqīdah; without it you lose the Ghazālī and are left with the Ghazālī for Kids series.

Understanding how to think is indeed the crown jewel of ijtihad which is the difference between the ignoramus who will be punished even when arriving at the correct conclusion, versus the true ʿĀlim who will be rewarded twice for his correct conclusions and once for those which fall short of the mark. Thus, abandoning the study of ʿAqīdah is worthy of far more concern than many perceive.

Recommendations for Learning & Promoting Sunnī ʿAqīdah

Regular Folks

Take a course in a basic text of ʿAqīdah like that of Imām Ṭaḥāwī, Ibn Abī Zayd, Ibn ʿĀshir, or the like with an erudite and qualified scholar, like the mashāyikh at reputable institutions like Ribat, Dār ul-Qasim or Masjid al-Huda. If you don’t have access to in-person classes, listen to a recording of the explanation of the complete text of the ʿAqīdah Ṭaḥāwiyyah here.

Community Servant-Leaders

Contact organizations like Imam Ghazali Institute or those listed above, and coordinate bringing such a course to your community targeting community leadership, students of knowledge, academics, as well as the public at large.

Support, seek advice from, and give a platform to those scholars who truly understand, believe in, uphold, and promote the Sunnī tradition, not merely as identity, but as a functional basis for viewing the world.

Novice Students of Knowledge

Read, master, and memorize a simple matn like those mentioned above, in Arabic, and take time to read through their commentaries.

Familiarize yourself with the intellectual history of Sunnī ʿAqīdah, and be able to trace how it has developed from the age of Risālah, the Salaf, the founding of its three main classical traditions, namely the Ashʿarī, Māturīdī, and Atharī schools, and how they dealt with major intellectual challenges in the past, like the Muʿtazilah and the Bāṭiniyyah.

Seek out a qualified teacher in one of those three traditions, who can competently teach you beginning and intermediate Kalām works, and demonstrate to you the connection between the text and the school of Kalām; the Ḥanafī school of fiqh being deeply connected to the Māturīdī school of Kalām, the Shāfiʿī school being deeply connected with the Ashʿarī, and the Ḥanbalī school with the Atharī.[33] As for the Mālikī school, it was initially associated with the Atharī school, but after the fitnah of Ibn Tumart’s false claim to being the Mahdī, built on robust dialectics, they en masse took up the Ashʿarī school in order to defend the integrity of Sunnī creed from further spurious assault.[34] Keep contact with said teacher and refer back to him or her whenever questions regarding the creedal implications of any legal, social, political or other issue comes up.

Advanced Students of Knowledge

Teach a class based on a basic text, like those mentioned in the recommendation section for regular folks at least twice a year; it will solidify your knowledge of its contents and allow you to see their implications in other matters you would have otherwise been heedless of, due to them being in your mind constantly. Additionally, it will be a good way of paying the zakāt due on they knowledge you have accumulated.

Read the intermediate and advanced books of your Kalām tradition. The advanced level texts will orient you with the opinions of the other schools as well. Do not suffice with that; rather read the texts of the other schools in order to get a fresh and accurate picture of their arguments.

In addition to your teachers, keep contact with a group of students who are at your level of study and reading and discuss matters of import in the intellectual, social, political and cultural life of the Muslim and the world around. When appropriate, write about such topics for the benefit of other students of knowledge and even the general public.

Use ʿAqīdah as a way of grounding your view of the world around you, allowing you to extricate yourself from getting caught up in ancillary issues, which while important, take a secondary importance when compared to those residing in the space of creed.

Sh. Hamza was born in Whittier, California and lived in Southern California until the age of ten when he moved to Blaine, Washington. He later attended the University of Washington and in 2004 completed a Bachelors of Science in Biochemistry and a Bachelors of Arts in Near Eastern Languages and Civilizations. He served as the president of the University of Washington Muslim Students Association, one of the largest and most active student groups on campus, as a student senator for two years, and as the Senate-appointed member of the special funding committee. After graduation, Hamza went on to pursue traditional Islamic studies, which took him to Syria and Egypt where he studied the Arabic language; Morocco, Mauritania, and the UAE, where he studied the madhab of Imam Malik, grammar, usul al-hadith, and the two renditions of the qira’ah of Imam Nafi’, Warsh and Qalun, and finally Pakistan where he had the opportunity to study tafsir, usul al-hadith, hadith, ‘ilm al-rijal and Hanafi fiqh.

All of these studies culminated in him receiving an ijazat al-tadris, literally meaning “a license to teach” which is the equivalent in Pakistani Islamic seminaries to a MA in Arabic and Islamic studies, as well as an unbroken chain of transmission by which to narrate the hadith of such books as the Muwatta of Imam Malik, the Sihah al-Sittah (Bukhari, Muslim, Abu Dawud, Tirmidhi, Nasa’i and Ibn Majah), and the Sharh Ma’ani al-Athar of Imam al-Tahawi.

[1]  Narrated by Bukhārī, Muslim, Ahmad and others. The narration translated is from Bukhārī.

[2]  Many ardent proponents of sectarianism will argue passionately that these matters are of key importance to the belief of every Muslim. This flies in the face of the fact that if these matters were so essential to a person’s islām, they would have been explicated very clearly in one of the undisputable scriptural sources of dīn and on the tongue of the Messenger of Allāh ﷺ.

[3]  Kalām being the medium of the study of advanced ʿAqīdah in most Sunnī madāris

[4]  al-ʿAlaq 96:5

[5]  This responsibility comes hand in hand with the responsibility of the public to heed their teachings and admonishments.

[6]  Ironically so-named

[7]  One of the unfortunate consequences of the collapse of widespread and endowed patronage of the people of knowledge is that in order to prosecute their mandates, many scholars have become part time politicians in order to fund their projects, keep masjid boards at bay, make a living or even find a platform to be heard. Although it is part of the prophetic mandate for the ʿUlamāʾ to maintain a well-cultivated relationship with the public, there is an inherent tension between being a visionary representative of the Ḥaqq as transmitted through revelation and recruiting the resources from laypeople who view such support not as a sacred duty, but as transactional. Unfortunately, due to this conundrum, some scholars have turned to demagoguery and the trappings of cults in order to extract optimal support from their followers, while maintaining a level of control that mitigates the transactionality of that support; the problem here is that in solving one problem, a bigger one is created: the training of zombie-like masses who can no longer critically engage Islām, rather only parrot what their leader says. Such a model is not the one left to us by the Messenger of Allāh.

[8]  Imām here meaning an acknowledged authority in a field of learning amongst the sciences of revelation, as opposed to an imm in a local mosque.

[9]  An Arabic word for guardian and friend, it is the term most commonly used to denote sainthood amongst Muslims when used in the context of piety.

[10]  As long as such a misguidance doesn’t rationally necessitate negating Islām outright.

[11]  Herein lies a sign pointing to the prophetic methodology of teaching faḍāʾil or what the virtues of things are. Faḍāʾil as a branch of knowledge sometimes suffer the stigma of being less important than the rulings to which they point. However, inasmuch as they are necessary to engender the requisite respect in the hearts and minds of those who are morally obliged to follow those rulings, they may come to play a role which is much more important that many first think. Abandoning their mention is a departure from prophetic pedagogical methodology.

[12]  The mind being the spiritual seat of cognition, and the locus of correct ʿAqīdah.

[13]  The heart being a spiritual organ from where intentions originate, the rectification of which is the subject of Taṣawwuf.

[14]  For instance having memorized the entirety of the Qurʾān isn’t an integral component of faith in any individual, but it is a farḍ kifāyah on communities to maintain and produce those who carry and transmit the divine text.

[15]  As made up of an aggregate of small units which are analyzed and interpreted in isolation of others.

[16]  The differences in uṣūl amongst the madhāhib being the reason we have different madhabs.

[17]  Literally, the Greatest Fiqh

[18]  There are a number of popular figures who have raised great amounts of money and garnered large followings from demographically Sunnī populations, despite their utter disdain for the actual Sunnī creed in private. This is because their heterodoxy, if clearly labeled as such, would not find much support at all. Interestingly, a hallmark of Sunnism has always been isnād or an open declaration of one’s sources of knowledge, giving us the benefit of transparency as opposed to deception.

[19]  Neo-salafists being those who claim that they can bypass tradition in order to hearken back to the pristine Islām of the early generations. This is opposed to Sunnism which always held tradition as a great ark in which to preserve that same tradition and dispense it to the generations.

[20]  All those who use the Dīn to air unjustified economic grievances, and all those who believe in their hearts that some kind of redistribution of wealth will solve the problems that only a rectified heart can solve.

[21]  One of the hallmarks of modernist thinking is that the “newness” of a thing is directly connected to some sort of value it possesses. From a physical science point of view, we know that since the dawn of creation, there is nothing physically new, as matter and energy are neither created, nor destroyed. If that is the case for physical things, then what about the abstract and intangible universe of ideas? Furthermore, in the realm of ideas, something which was true yesterday is true today, and vice-versa, what relevance should “newness” have to ideas for an uṣūlī thinker in the abstract realm? In the dissemination of ideas, which is more of a political matter, these things are important, but in the world in which intellectuals transact, they rapidly lose currency amongst serious thinkers.

[22]  Like physicists and chemists

[23] Like Sociologists, Anthropologists, and the like.

[24]  A noteworthy exception to the idea that all or most antagonists to the Kalām tradition are untrained in the classical Arabic sources are those who currently hold a position attributed to many of the salaf, namely that kalām is unsubstantiated speculation regarding revelation and the very nature of Allāh, thus a sin worse than theft and fornication, which is most widely ascribed to the Imām Aḥmad bin Ḥanbal, may Allāh sanctify his heart, and those who follow his school. Without casting any aggression toward this opinion which holds some merit, especially for the context in which it was first held, it goes without saying that such an approach will struggle to offer any help to a university student dealing with the ideological hailstorm on campus. Even then, a negation of kalām as scholastic theology is far from a negation of the importance of ʿAqīdah. The majority of Muslim scholarship, at any rate, didn’t see kalām in the post-salaf context as an abomination; I feel that radiant lamp of truth preserved in the kalām tradition would be unfairly thrown into the garbage heap of history by many at a time of darkness when the ummah acutely needs its light.

[25]  Truth

[26]  الكفر ملّة واحدة

[27] Which, ironically, has yet to be empirically proven; who has an imaginary friend now?

[28]  It is interesting that in attempting to explore this question, cotigo ergo sum is considered to be a treasure of Farangī philosophy: in our tradition, one doesn’t even begin the long journey of understanding reality, without paying the toll tax of fanā. Indeed, when reading the works of kalām, one quickly realizes that the more intellectually taxing exercise isn’t the refutation of kufr, rather that of refuting heterodox groups which operate under the umbrella of Islāmic identity, like the Muʿtazilah, Khawārij, and the Rawāfiḍ, who dared not challenge God head on, but strayed by overlaying their own sophistry over revelation. Thus, the more skilled refutations are not those of kufr, but of the spurious interpolations of the nafs, which gave rise to heterodoxy in Islām, which is expressed in the refutation of such groups. Thus, one can restate a reality mentioned above through its opposite: the journey to kufr can only begin in earnest by the complete affirmation of nafs, Allāh forgive and protect us all, and give all of us a good end.

[29]  Not all spiritual achievements are virtuous. Some are evil, and many others are morally neutral.

[30]  The Hindu concept of the illusory conception that each individual has of the world around him. To others it is an illusion, but to the individual in question, it is real; thus there is no such thing as a reality anchored at any absolute truth, rather an array of quasi-truths, which may be completely true, but only to the individual who holds them as such.

[31]  This seems to be the direction in which the enfranchised elites of both the Muslim world and the world in general are both headed, if they haven’t already taken up residence decades ago.

[32]  Tirmidhī: بَابُ مَا جَاءَ فِي الَّذِي يُفَسِّرُ القُرْآنَ بِرَأْيِه

[33]  Being represented in the Salaf by the concept of Tafwīḍ, or vouchsafing the knowledge of that which is unclear to Allāh, rather than anthropomorphism.

[34]  المعيار المعرب, المجلّد الثاني

 

7 Comments

7 Comments

  1. Avatar

    Yusuf Smith

    April 2, 2018 at 1:44 PM

    As-Salaamu ‘alaikum,

    One should note that this divide within Judaism started from the United States, and has now pervaded the Jewish world, and likewise, if such a chasm formally opened up in the United States, it would be a matter of import for the entire ummah

    This hugely overstates the importance of the American Muslim community to the Muslim community worldwide. The USA was one of the major centres for emigration of Jews from eastern Europe during the Tsarist persecutions of the 19th and early 20th centuries; the UK was another. The world Jewish community was previously mostly found in eastern Europe and the Arab world (mainly north Africa and Iraq); today it is mainly found in the English-speaking world and Israel.

    In addition, the community was prone to schisms before the mass emigrations started. There was already a move towards secularism and humanism, called the Haskalah or “enlightenment”, as well as a schism between mystics (Hasidim) and legalists based in Poland and Lithuania respectively. This might be compared to the Brelvis and Deobandis in India, although the Hasidim are actually far more legalistic than the Brelvis are (I was making a rough equivalence).

    The USA’s Muslim population accounts for nothing like the same proportion of the world’s Muslim community as the USA’s Jewish population and the scholars in the USA are held in nothing like the same regard so they have much less potential to provoke a major schism. The greatest scholars are still in the lands they always were: India, Syria, Egypt, Morocco, Yemen and American Muslim communities still look to those places and send their aspiring scholars to universities and colleges in those places: Al-Azhar, the Qayrawiyeen, Dar al-Mustafa, Deoband and its offshoots, Madinah university.

    The Prophet (sall’ Allahu ‘alaihi wa sallam) also told us where the major schisms would arise: the Najd, and the East generally. Nearly all the major schismatic groups emerged either there, or among tribes originating there. The West (i.e. Africa) was always a land where the Muslims clung to mainstream Sunni Islam, even though parts of Egypt and Tunisia were dominated by Shi’ites for a time, and much the same is true of the native Muslims of eastern Europe. The Muslims living in the Christian West are subject to the same schisms as the lands they came from; there is no suggestion that a major fitna originating in this part of the world might affect the whole Ummah.

    It’s worth noting that the major schism among the Indo-Pak community here in the UK is still the Deobandi/Brelvi schism and that originated in India; the “inquisition” fitna that tore apart the American and British “salafi” communities in the 1990s started in Saudi Arabia, not in Brixton or Philadelphia.

    • Avatar

      Hasan

      April 3, 2018 at 5:12 AM

      Great analysis by the shaykh. I would argue that American Muslims though few in number seem to have a lot of influence. In the UK the American Shaykhs get a huge following in comparison to the local scholars. At a recent conference by MEND all the speakers were Americans except Abu Eesa (but he hangs with Americans so can’t really count him as being totally British).

      This is not just limited to UK but NAK recently did a tour of Europe where he managed to pull in huge crowds and he is very popular across the world.

      Shaykh Hamza at a recent visit visit said something very interesting. Usually some ideas start in America then after a few years hit the UK and then a few years later they go to the Muslim lands.

      So there is no doubt that American Muslims do have influence despite their small numbers. It’s just that my personal experience shows that their influence has been detrimental in most cases. They have given rise to the celebrity speakers and a whole host of fitnas. Still there is hope with people like Shaykh Hamza Maqbul and others.

      With love from England

  2. Avatar

    Sarah

    April 3, 2018 at 10:15 AM

    An article which talks about being anti sectarian while disparaging “the Rafidha” and acting like Sunni scholars are not complicit in sectarianism in the Subcontinent in particular? Must be MuslimMatters! Just like the good old days again with Salafis talking about “the Rafidha” as an excuse to commit takfeer, except I guess now Salafism is out because people actually read Ibn Abd Al Wahhab and now romanticized Sunnism is in.

    Anyways – have fun with this, y’all. Kalam and usul texts are really interesting to study if you don’t take the authors as Divinely Protected and you read them alongside fatwa texts to keep yourself a bit grounded in the reality that usul didn’t guide everything, but hey, who am I but a Speck of Dust on the eternal light of the men gone by when I point out that usul sure as hell didn’t save luminaries like al Ghazali from putting words of misogyny and racism in the Prophet’s mouth via the use of weak ahadith. I’m sure that venerating texts that venerate hierarchies between the believers is going to make us all just swell and dandy and non sectarian – it’s not like any scholars studied these texts and came out far more skeptical than when they came in, but again, what am I but a pixelated set of code on the path of the True Scholars who sniff at the sight of my comment.

  3. Avatar

    S N Smith

    April 16, 2018 at 7:36 AM

    I have been saying the same thing for years

  4. Avatar

    Spirituality

    May 6, 2018 at 8:06 AM

    As Salamu Alaikum,

    Please read FN #24 of this article…I wish it was highlighted up front, as a disclaimer. Its an absolutely critical point to this entire discussion and should not have been buried as a footnote.

    “A noteworthy exception to the idea that all or most antagonists to the Kalām tradition are untrained in the classical Arabic sources are those who currently hold a position attributed to many of the salaf, namely that kalām is unsubstantiated speculation regarding revelation and the very nature of Allāh, thus a sin worse than theft and fornication, which is most widely ascribed to the Imām Aḥmad bin Ḥanbal, may Allāh sanctify his heart, and those who follow his school. Without casting any aggression toward this opinion which holds some merit, especially for the context in which it was first held, it goes without saying that such an approach will struggle to offer any help to a university student dealing with the ideological hailstorm on campus. Even then, a negation of kalām as scholastic theology is far from a negation of the importance of ʿAqīdah. The majority of Muslim scholarship, at any rate, didn’t see kalām in the post-salaf context as an abomination; I feel that radiant lamp of truth preserved in the kalām tradition would be unfairly thrown into the garbage heap of history by many at a time of darkness when the ummah acutely needs its light.”

  5. Avatar

    SM

    May 6, 2018 at 8:49 AM

    I read a lot, but the language and complexity of this article was beyond me. If aqeedah is the foundation of religious study then there should be a way of talking about it that is easy to grasp for regular people.

  6. Avatar

    Online Quran Academy

    May 25, 2019 at 12:30 PM

    your family’s wants in the education environment.to Online Quran Academy

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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. 899/1493) and Abu Bakr al-Turtushi (d. 520/1126), both of whom were notable Maliki scholars from the Islamic West. Two scholars of the same legal school, from roughly the same relatively peripheral geographic region, living roughly four hundred years apart, cannot fairly be used to represent the swathe of Islamic views to be found over fourteen hundred years in lands as far-flung as India to the east, Russia to the north, and southern Africa to the south.

What does the tradition actually say?

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

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

Al-Ghazzali on confronting tyrants

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

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

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

Modern discontinuities and their high stakes

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

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

Shaykh Hamza on the nature of government

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

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

Where do we go from here?

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

And Allah knows best.

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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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