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An Open Letter to the “Religious” Regarding Acceptance

Shaykh Furhan Zubairi

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Alḥamdulillah, we are currently living through and experiencing the last ten nights of Ramadān. One of these nights is Laylat al-Qadr, the Night of Power, a night that is better than a thousand months. The Prophet ﷺ told us,

Whoever stands in prayer on the night of power with faith and expecting reward, then all of their previous sins will be forgiven.”[1]

This is meant to be a very spiritual time of the year, where a person increases their acts of worship and devotion, trying to build a stronger connection with their Lord and Creator.

However, I have to admit for the past few nights there has been a certain heaviness in my heart that is preventing me from feeling the full potential of these blessed nights, and is causing me to be distracted and bothered. This heaviness I’m feeling is the attitude of “religious” people towards our imams, scholars, and religious institutions, for decisions they have made based on sound knowledge, understanding, consultation, dua, and sincerity. I know I should be stronger and let people say and think whatever they want. I should, as they say, let the haters hate. But this is an issue that needs to be dealt with head on, in a very direct and clear manner, if we want to move forward as a minority Muslim community in America.

A few years ago a group of scholars, after discussions, research, and consultations with other scholars, decided to adopt the position of global moon sighting, a valid legal opinion, for deciding the beginning and end of Ramadan. This led to accusations within the community of leniency in matters of religion, pandering to the majority, deviancy, and other baseless, unfortunate claims. Similarly, this year we started fasting based off reports of highly respected and trusted individuals who sighted the crescent with the use optical aids. Using optical aids to sight the crescent is a valid legal position[2]. Despite that, we still heard similar remarks and statements from a certain segment of the community.

Along the same lines, this year, at the Institute of Knowledge, we decided to organize an all female tarāwīḥ for our female students who have completed their memorization of the Quran. The permissibility of having an all female congregation led by a female is a valid legal position[3]. However, since this is something new and unfamiliar, we again started hearing critical types of statements and remarks. The hurtful part is that these concerns were never brought up to us directly.

It is extremely important for us, especially our “religious” community members, to understand that within Islamic Jurisprudence there are a number of issues in which there are valid, accepted differences of opinion. Valid differences of opinion in secondary religious matters have always existed. They existed among the companions during the time of the Prophet ﷺ, they exist now, and they will exist until the end of times. There are differences of opinion among the various schools of jurisprudence and even within them. Pick up any book of Ḥanafī fiqh and you will find a number of examples where Abū Yūsuf and Muḥammad raḍyAllāhu 'anhu (may Allāh be pleased with him) disagreed with their teacher Abū Ḥanīfah raḍyAllāhu 'anhu (may Allāh be pleased with him).

Issues in which there are valid differences of opinion are classified as mujtahad fīh, meaning a matter subject to interpretation. These are issues that are open to interpretation and allow for scholarly difference. A mujtahad fīh issue is any issue that does not have a definitive proof. Imam al-Ghazālī raḍyAllāhu 'anhu (may Allāh be pleased with him) defines it as, “every legal ruling that doesn’t have a definitive proof.” Since they are open to interpretation there will obviously be differences of opinion. For example, according to the Shāfiʿī position, a person should raise their hands to their shoulders when starting prayer. According to the Ḥanafī position, a person should raise their hands to their ears. There are differences regarding how to hold one’s hands in prayer, the ruling of reciting Surah al-Fātiḥah, reciting behind the Imām, saying āmīn out loud, and the list goes on and on.

Issues of Islamic Jurisprudence aren’t as black and white as people make them out to be. As a matter of fact, they are very complex and require the expertise of scholars to comb through the Quran and aḥadīth, search for relevant texts, then use the rules of the Arabic Language, principles of fiqh, and their understanding to extrapolate and derive rulings. In addition, they look at the conclusions of previous scholars and experts, and understand their arguments and reasoning for those particular conclusions. It’s possible that two scholars will have the same verse in front of them but because of their different principles and methodologies, will arrive at two opposite conclusions. Basically, fiqh is much more complex and nuanced than we think. Whoever tells you otherwise is being academically dishonest or is ignorant.

Adab Al-Ikhtilāf, the manners or ethics of disagreement, is unfortunately something that is greatly lacking in our communities. This is a subject that should be studied by all students of knowledge, scholars, imams, activists’, callers, and the general public. Issues in which there are valid differences of opinion should be dealt with a great level of tolerance and understanding. Just because someone follows a different opinion than ours or one that we are unfamiliar with doesn’t automatically make them wrong, lenient, or somehow a deviant who’s destroying the religion.

Unfortunately, that’s the attitude of a segment of the so-called “religious” community. If we see someone doing something we disagree with we automatically start judging them. If a scholar looks a certain way or dresses a certain way we automatically start judging them. I have noticed a lot of students of knowledge, graduates from traditional madāris, and graduates from Islamic Universities catching heat from “religious” individuals for not practicing certain acts classified as al-sunan al-zawā’id or for dressing a certain way (primarily wearing what we endearingly refer to as “pant/shirt”). Since ikhtilāf in these matters are allowed, we must show tolerance in such issues. This means that we shouldn’t label the opinion of others which may be different, but valid, as  deviant, an innovation, blasphemous, or creating fitnah. Rather we’re supposed to have an attitude of acceptance and inclusiveness.

No one should be rebuked, reprimanded, scolded, corrected, advised, or yelled at for following a valid difference of opinion. The Shāfiʿī’s developed a beautiful saying, “Issues of ijtihād are not rejected with force, and it is not allowed for anyone to force people to follow their opinion regarding them. Rather they should discuss them using scholarly proofs. If one opinion appears correct to a person, he should follow it, and whoever follows the opposite opinion then there’s no blame on him.”[4]

As a matter of fact when it comes to these types of issues we’re supposed to let people practice what they’ve learned as long as it’s a valid opinion. Sufyan Al-Thawri raḍyAllāhu 'anhu (may Allāh be pleased with him) said, “If you see someone doing something that’s disagreed upon and you have another opinion, don’t stop him.”[5] As Imām Mālik raḍyAllāhu 'anhu (may Allāh be pleased with him) remarked, “If you try to change them from what they are familiar with to something they’re not familiar with, they will consider that disbelief.”[6]

Part of Adab Al-Ikhtilaf is praying behind others who may follow a different opinion than your own. For example, there’s absolutely nothing wrong with praying behind someone who follows the opinion of wiping over their socks, bleeding doesn’t break wudhu, or reciting from the mushaf during tarāwīh. There’s absolutely nothing wrong with this and has been the practice of scholars throughout history. There’s a beautiful booklet written by Imām ibn Hazm raḍyAllāhu 'anhu (may Allāh be pleased with him) dealing specifically with this topic.

This lack of adab and tolerance from the “religious” and their attitude towards imams, scholars, and Islamic institutions for adopting and following valid positions they are unfamiliar with is extremely disheartening and hurtful. I mean, do they really think that someone who has spent anywhere from six to twelve or even more years of their life studying Islam, who has dedicated their lives to the service of Islam, is going to intentionally do something that is wrong or impermissible? Do they really think that they’re going to intentionally misguide the community? However, they are not entirely at fault because they may not know any better. Perhaps they haven’t been exposed to the diversity of fiqh and are only familiar with what they have been taught. They may even be doing so out of some sort of misplaced effort to uphold the truth or honor tradition.They may sincerely believe by speaking out they are engaging in some sort of nahy ʿan al-munkar (prohibiting evil).  A large part of the blame for this type of approach and attitude lies on the shoulders of some of our scholars and graduates who perpetuate this sort of intolerance and narrow-mindedness. As people of knowledge who have studied and are aware of these finer details of fiqh, it is important for them to be academically honest. How is it that they have studied for so long and are considered to be scholars, ulema, and imams, and haven’t learned how to deal with valid differences of opinion in a fair and balanced manner?

I came across an important principle while reading through Mufti Taqi Usmani’s transcribed lecture notes on Jāmiʿ al-Tirmidhī under the section of abwāb al-libās. The principle he highlights is:

الإنكار على غير منكر، منكر بنفسه.

A loose translation would be, “Censuring a matter that is not impermissible is impermissible itself.”

It’s time for us as a community to mature and move above and beyond these debates through education. The Muslim community in America is very diverse and this diversity is represented through our scholars and imams. We have scholars and graduates who have studied at different Islamic institutions, seminaries, and universities throughout the Muslim world. Some studied at Azhar, some in Madinah, some in Dār al-ʿUlūm, some in Syria, some in Yemen, some in Mauritania, and several other reputable places.

If you know anything about these institutes they have vastly different approaches towards Islamic Law and different ways of understanding texts of the Quran and Sunnah. All of these institutions are products of their environment; they were dealing with different realities religiously, socially, politically, and economically. Graduates who have studied at these different places have also adopted some of these different approaches and understandings.  We’re entitled to our own opinions, as long as they’re valid. We can argue in favor of them and defend them till we’re red in the face, but at the end of the day we should all still be able to sit down and talk to each other. We have to have mutual love, respect, and understanding. Love, respect, brotherhood, and unity are far more important than our own individual differences of opinion.

This diversity of opinions shouldn’t lead to disunity. Unity and conformity are two separate things. Islam requires us to have unity amongst ourselves, not conformity. May Allah ﷻ guide our hearts to what is correct, bring our hearts together, and unite our community.


[1] Muslim, k. Ṣalāh al-musāfirīn wa qaṣrihā, b. Al-targhīb fī qiyām ramadān wa huwa al-tarāwīḥ

[2] The use of optical aids to sight the moon is a valid position within the scope of fiqh. I will address the issue in a separate article after Ramadān.

[3] This will also be addressed in a separate article after Ramadān.

[4] إن مسائل الاجتهادية لا تنكر باليد، و ليس لأحد أن يلزم الناس باتباعه فيها، و لكن يتكلم فيها بالحجج العلمية، فمن تبين له صحة أحد القولين تبعه، و من قلد أهل القول الآخر فلا إنكار عليه

[5] عن الإمام سفيان الثوري أنه قال، “إذا رأيت الرجل يعمل العمل الذي قد اختلف فيه و أنت ترى غيره فلا تنهه”.

[6] عن الإمام مالك، “إن ذهبت تحولهم مما يعرفون إلى ما لا يعرفون رأوا ذلك كفرا.”

 

Shaykh Furhan Zubairi serves as the Director of Religious Education at the Institute of Knowledge in Diamond Bar, CA. He regularly delivers khutbahs and lectures at various Islamic Centers and events in southern California.

 

Shaykh Furhan Zubairi serves as the Director of Religious Education at the Institute of Knowledge in Diamond Bar, CA. He regularly delivers khutbahs and lectures at various Islamic Centers and events in southern California.

6 Comments

6 Comments

  1. Avatar

    Ramadan

    June 14, 2018 at 5:06 PM

    Jazakallahu khayr

  2. Avatar

    fareen

    June 21, 2018 at 6:55 AM

    Hi Furhan Zubairi, I read your information its really good and readable for viewers.The way you wrote the content is impressive.

  3. Avatar

    abuCocoa

    June 26, 2018 at 11:02 PM

    can you please fix the formatting on MM? not everyone likes to view websites when they are completely full screen…

  4. Avatar

    Alkalaam

    July 10, 2018 at 4:30 AM

    Masha Alla , well written and informational.

    Allah bless you.

  5. Avatar

    M H

    July 10, 2018 at 5:29 AM

    Just what I needed! JazakAllahu Khayran for the article.

    Fiqh is an ocean, and often we are only exposed to a puddle. Arguably that’s because that’s all we need to go about our daily business, and to actually refer to Ulama in times of need.

  6. Avatar

    Hamid

    June 4, 2019 at 11:45 PM

    JAK for the writeup.
    My observations in this regard are as follows:
    1. IMO, the absence of a central religions body (for example AWQAF or National Religious Committees) in the West (among the Muslims) has left a vacuum that is filled by those who are qualified, somewhat qualified, and not qualified at all. You can easily assign different people/roles within our community structure to each of these categories (mashaykh/imams, ulema/scholars, qaris, board members, youth leaders, dude with nice voice, born-agains (Muslim equivalent of evengalist), etc.). Many of these people think of themselves as vanguard of Islam and its heritage and tradition.

    2. For some reason, many students of knowledge as well as graduates from Islamic institutes are quite disillusioned about the competence of Muslim scholars and institutions in the East and try to overcompensate when they go back to their communities as “they have the freedom to bring about a change or reform that is not afforded to those in many Muslim countries”. As a result of this, many of these same people criticize the Muslim clergy thus undermining their own value and interest. This is a nuanced observation that is best experienced by those who are cultured enough to see and understand this BTW.

    3. The quest of knowledge doesn’t begin with the knowledge itself; mannerism, attitude and decorum is the initiation phase followed by actual pursuit of Islamic knowledge. This is why we end up with folks belonging to the warrior strand and not the spiritual and healing strand. All of my main mashaykh (sh Wlaeed Idrees, Sh Hatem Alhaj..) always stressed the importance of attitude and mannerism over accumulation of knowledge.

    4. Ardent students of knowledge from the Muslim institutes also need to own up to their mistake because they perpetrated an environment of mistrust of “established authority”, Muslim institutes and the old guard of scholars and students of knowledge. This is a cycle and what goes around comes around.

    5. Like you mentioned, there’s just such a general lack of the basic understanding of the abundancy and respect of varying opinions in the Islamic heritage that people have little clue about the richness of that heritage. As long as this exists, we will have narrowmindedness and conflicts about the elemental issues.

    These are some initial thoughts in no particular order with no intent to critize or harm.

    JAK.

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#Islam

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

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

Shaykh Salman Younas

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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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14 Short Life Lessons From Studying Aqidah

Lessons I learned Studying Theology (Aqidah) with a Local Islamic Scholar in Jordan

Hamzah Raza

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I sit here in the Jordanian heat, with a kufi on and prayer beads in my hand. I watch as young kids play soccer with their kufis and kurtas on in the streets. They go on and on until the Adhan interrupts their game. I think of how different the kids back home in the United States are. Due to the rules for living in this quaint Jordanian neighborhood, the kids are not allowed to play video games, use social media, or watch television. This is the Kharabsheh neighborhood on the outskirts of Amman, Jordan.

I have spent the past two months living in this community. It is a community so similar to, yet so different from any community I have ever lived in. In many ways, it is just like any other community. People joke around with one another, invite people over for dinner, have jobs, go to the gym, and do other pervasive events of everyday life. But in many other respects, the community is different from most in the world today. Many of those living here are disciples (mureeds) in the Shadhili Sufi order. Sufism has faced a bad reputation in many parts of the world today. The stereotype is that Sufis are either not firm in their commitment to religious law (Sharia), or lax in their understanding of Islamic theology (aqidah). Far from the stereotype, I have never met any people in my life more committed to the Sharia. Nor have I ever met people so committed to staying true to Islamic orthodoxy. Just in seemingly mundanes conversations here in Kharabsheh, I find myself learning a plethora of life lessons, whether that be in regard to Islamic jurisprudence, the ontology of God, or the process of purifying one’s heart.

I have compiled a list of a few lessons I learned in studying an elementary aqidah (theology) text with a disciple of Shaykh Nuh, who is a scholar of theology and jurisprudence in himself. Without further adieu, here are some of the lessons I learned.

1) If you want to know the character of a man, ask his wife. People may think someone is great, but his wife will tell you how he actually is. One of the greatest proofs of the prophethood of the Prophet Muhammad ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) is that he had 11 wives over his lifespan and they all died upon Imaan (faith).

2) Humans are never static. We are always incrementally changing. No one changes in anything overnight. People are either gradually getting better, or gradually getting worse. Every day, you should sure that you are always improving. Do not get worse. If you only pray your Fard(mandatory) prayers, start to pray Sunnah(recommended prayers). If you are already praying your Sunnah prayers, improve the quality of your prayer or pray nafl (optional prayers).

3) Hope in the Mercy of God, and fear of His Justice, are two wings that we need to balance. If one has too much hope, they will become complacent and think they can refuse to follow God’s rules, and do whatever they want, because God is Merciful. If one has too much fear, they will give up. They will inevitably sin (as all humans do), and lose all motivation to better themselves.

4) The believer has great hope in the Mercy of God, while also great fear in His Justice. It is an understanding of “If everyone were to enter Heaven except for one person, I would think that person is me. And if everyone were to enter Hell except for one person, I would think that person is me.”

5) Whether we do something good or bad, we turn to God. If we do something good, we thank God (i.e. say Alhamdulillah). If we do something wrong, we turn back to God(i.e. say Astagfirullah and/or make tawbah).

6) Everyone should have a healthy skepticism of their sincerity. Aisha (May God be pleased with her) said: “Only a hypocrite does not believe that they are a hypocrite.”

7) You are fighting a constant war of attrition with your carnal desires. Your soul (ruh) and lower self (nafs) battle it out until one party stops fighting. Either your soul gives up and lets your carnal desires overtake you, or your carnal desires cease to exist (i.e. when your physical body dies). Wage war on your carnal desires for as long as you live.

life lessons, aqidah

8) The sign of guidance is being self-aware, constantly reflecting and taking oneself to task. The evidence of this is repenting, and thinking well of others. If we find ourselves making excuses for our actions, refusing to repent for sins, or thinking badly of others, we need to change that.

9) The issue with religious people is that they are often tribalistic and exclusivist. The issue with secular people is that they often have no clear meaning in life, and are ignorant of what lies beyond our inevitable death. One should be able to cultivate this meaning without being tribalistic or arrogant towards others, who have not yet been given guidance.

10) There are philosophical questions regarding free will and determinism. But it is ultimately something that is best understood spiritually. An easy first step is to understand the actions of others as predetermined while understanding your response as acts of free will. This prevents one from getting too angry at what others do to them.

11) Always think the best of the beliefs of other Muslims. Do not be in a rush to condemn people as heretics or kuffar. Make excuses for people, and appreciate the wisdom and experiences behind those who may be seemingly strange in their understanding of things.

12) Oftentimes, people get obsessed with the problems of society and ignore the need to change themselves. We are not political quietists. But we recognize that if you want to turn society around, the first step is to turn yourself around.

13) Do not slam other individuals’ religious beliefs. It leads to arrogance and just makes them more defensive. If you are discussing theology with non-Muslims, be kind to them, even if pointing out flaws in their beliefs. People are more attracted to Islam through people of exemplary character than they are through charismatic debaters or academics that can tear them apart. As my teacher put it rather bluntly, “Don’t slam Christians on the Trinity. No one can actually explain it anyways.”

14) In the early period of Islam, worshipping God with perfection was the default. Then people strayed away and there was a need to coin this term called “Sufism.” All it means is to have Ihsan (perfection or beauty) in the way you worship God, and in the way you conduct each and every part of your life.

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Ten Things You Didn’t Know About The Kaaba- Video

Dr Muhammad Wajid Akhter

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Kaaba

Every Muslim knows the Kaaba, but did you know the Kaaba has been reconstructed several times? The Kaaba that we see today is not exactly the same structure that was constructed by Prophets Ibrahim and Ismail, may the peace and blessings of Allāh be upon them. From time to time, it has needed rebuilding after natural and man-made disasters.

Watch to learn ten things that most people may not know about the Ka’aba, based on the full article Ten Things You Didn’t Know About the Ka’aba.

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