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A Word On Muslim Attitudes Toward Abortion

Dr Abdullah bin Hamid Ali, Guest Contributor

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The Qur’an describes Muslims committed to its mores as “a moderate nation,” and that sense of balance qualifies them to stand as “witnesses over humanity” (Q 2:143). Contemporary Muslims revel in this assertion, especially when it seems that “Islam” proposes a via media solution to a highly polarizing subject as abortion. What currently constitutes “Islam” on a given topic, however, often reflects the personal prerogative apparently offered to the average Muslim by a list of diverse legal perspectives. In other words, the mere fact that multiple legal opinions exist on one or more topics is now taken as license to appropriate any one of them, without any deep ethical reflection on the implications of the opinion, however anomalous it may be.

“Islam is the golden mean between all ethical extremes” is what certain Muslims would assert. So if one extreme bars abortion under all circumstances and the other seeks to allow it throughout the duration of the pregnancy, one would assume that Islam must land somewhere in the middle, both forbidding and allowing abortion in certain circumstances. This moral assumption isn’t far from the truth. However, the mere existence of multiple opinions on a topic does not mean that each opinion has equal validity, nor does it mean that every opinion is valid for one to adopt. Similarly, “Islam” or “Islamic law” cannot be summed up into a simple formula like “majority rules” or “when in doubt about prohibition or allowance, the action is, therefore, merely disliked.”

Legal positivism plagues both religious and secular-minded people. Just as an act does not acquire its moral strength simply because it is legal, morally appropriate opinions are not always codified into law. If it is true that any unjust law is no law at all, where is the injustice and to whom is it being perpetrated against in the debate between pro-lifers and pro-choicers? Is it deemed unjust to prevent a pregnant woman from disposing of an “insignificant lifeless part of her body” that no one other than herself should be able to decide what to do with? Or is one “depriving a helpless growing person” of the opportunity and right to exist after its Creator initiated its journey into the world? Does a law that prevents a woman impregnated by a family member or rapist from an abortion oppress her? Or does such a law protect the life of a vulnerable fetus, who, like other weak members of society, is expected to be protected by the strong? Does it do both or neither? And if one is taking the “life” of this fetus, what proof is there that it is a living creature?

While these are all extremely important questions, this missive is neither intended necessarily to answer them nor to resolve today’s raging political debate. The main goal here is to offer ideas that should be on the minds of Muslims when deciding to join such debates or promoting the idea that their “religion” provides the best solution to social polarization, when by “religion” we mean the opinion of a small minority of scholars in some place and time in Muslim history.

Islamic law is very sophisticated; the legislative process is not facile, nor is it a place where any Muslim is entitled to pragmatically select the opinions that he/she finds attractive and accommodating. It demands knowledge of particular aims, the ability to properly realize those aims in the lives of people, and understanding the epistemic and metaphysical foundations that ensure that judgments conform to coherent rationale. In other words, the laws of Islam and the opinions of jurists cannot be divorced from their philosophical and evidentiary underpinnings. Otherwise, the thread holding the moral tapestry of Islam together falls apart completely at its seams.

Is Abortion Lawful in Islam?

Many past and present have written about the Islamic view of abortion. The ancient scholars prohibited it at all stages of the pregnancy and made practically no exception. Some would later allow for it only if the mother’s life was in danger. That notwithstanding, six popular legal opinions exist regarding abortion:

  • Unlawful (haram), in all stages of the pregnancy.
  • Permitted (ja’iz), during the first 40 days but unlawful (haram) afterwards.
  • Disliked (makruh), before the passage of 40 days but unlawful (haram) afterwards.
  • Permitted (ja’iz), if it is from illicit intercourse (zina).
  • Permitted (ja’iz) without conditions, before 120 days.
  • Permitted only for a legitimate excuse.

The late mufti of Fez, Morocco, Shaykh Muhammad Al-Ta’wil (d. 2015) said,

The first opinion forbidding that during the [first] 40 [days] and beyond, regardless of whether or not it is due to an excuse, even if from illicit intercourse, is the view of the supermajority [of jurists].[1]

The Qur’an is a Book of Ethical Teaching

The reasons for the cavalier attitude among contemporary Muslims about abortion are multiple. The most significant reason may be that at times Islam is seen as a synonym for shariah. The truth, however, is that the shariah is only part of Islam. Islam covers law (fiqh), creed (aqidah), and ethics (akhlaq). Even though the Qur’an consists of laws, it is not a book of law. It is a book of ethical teachings. Merely 10%–12% of the Qur’an relates to legal injunctions. It is not characteristic of the Qur’an to enjoin upon Muslims to command what is “compulsory” or “recommended” and to forbid what is “unlawful” and “disliked.” What is common though is for it to command us to do what is “ma’ruf” and to avoid what is “munkar.”

“Ma’ruf” and “munkar” can be translated respectively as “what is socially commendable” and “what is socially condemnatory.” This is in spite of the fact that social acceptability and unacceptability are often subjective. This does not mean that the Qur’an is morally relativistic. It is quite the contrary. What this means, however, is that the Qur’an’s aim is not merely to teach Muslims what one can and cannot do. It means, rather, that the Qur’an has a greater concern with what Muslims “should” and “should not” do. For this very reason, the companions of the Prophet seldom differentiated between his encouragement and discouragement of acts by the juristic values of disliked, unlawful, recommended, and compulsory. Rather, if the Prophet encouraged something beneficial, they complied. And, if he discouraged from something potentially harmful, they refrained.

The Qur’an permits many actions. However, to permit an act is not equivalent to encouraging it. It permits polygyny (Q 4:3), the enslavement of non-Muslim war captives (Q 8:70), and marrying the sister of one’s ex-wife (Q 4:23). Similarly, some Muslim jurists validate marriage agreements wherein the man secretly intends to divorce the woman after a certain period of time known only to him.[2] This is the case, even though the average Muslim man is monogamous; practically no Muslim today believes it is moral to enslave a person; the vast majority of Muslims find the marriage of one’s sister-in-law upon the death of one’s wife to be taboo; and they chide men who marry with a temporary intention of marriage. If the mere existence of permission or legal opinion permitting a socially condemnable act is a legitimate reason to adopt it, why would Muslims be uneasy about these cases but inclined to take a different stance when it comes to abortion?

The proper Islamic position on any given issue of public or private concern should not only consider what the law or jurists have to say about the topic. Rather, one should also consider how theology and ethics connect with those laws or opinions. That is to say, one should ask, “What wisdom does God seek to realize from this injunction or opinion?” assuming that such a wisdom can be identified. Secondly, one need ask,

“Who and how many will be helped or harmed if this action is undertaken?”

The Qur’an is the primary source of Islam’s ethics. And, one often observes a major difference between its morality and the morality validated by certain jurists, often lacking a clear connection to Qur’anic and prophetic precepts. That notwithstanding, a juristic opinion can sometimes masquerade as one that is authentically Islamic, especially when it aims to appease or assuage a social or political concern. Consequently, one finds some contemporary scholars championing opinions simply­ because they exist, like that of mainstream Shafi’is who traditionally argued that the reason for jihad was to rid the world of unIslamic doctrines (kufr); or certain contemporaries who validated taking of the lives of innocent women, children, and other non-combatants in suicide bombings; those who endorsed the execution of Jews for converting to Christianity and vice versa;[3] or others who classified slaves as animals rather than human beings?[4] For, surely, there are Muslim jurists who validate each one of these opinions, despite their evidentiary weakness. Hence, simply because there is an opinion allowing for abortions does not necessarily mean that it is something Islam allows, even in cases of rape and incest.

When Does Life Begin?

Medieval Muslim scholars, naturally, lacked the scientific tools that we have today to determine whether or not the fetus growing in its mother’s womb was actually a viable creation and a living creature from conception. Other than when the fetus first showed signs of movement in its mother’s belly, scholars took their cues from the Qur’an and prophetic tradition on when the fetus possessed a soul or if it did so at all. For this reason, very few scholars have offered clear answers to the question of when human life begins, while they agreed that upon 120 days, the child is definitely a living person.

According to the Andalusian scholar of Seville, Ibn al-‘Arabi (d. 1148),

The child has three states: 1) one state prior to coming into [material] existence …, 2) a state after the womb takes hold of the sperm …, and 3) a state after its formation and before the soul is breathed into it …, and when the soul is breathed into it, it is the taking of a life. [5]

Al-Ghazzali (d. 1111) said,

Coitus interruptus (‘azl) is not like abortion and infanticide (wa’d) because it [abortion] is a crime against an actualized existence (mawjud hasil). And, it has stages, the first being the stage of the sperm entering into the womb, then mixing with the woman’s fluid, and then preparing for the acceptance of life. To disturb that is a crime. Then, if it becomes a clot (‘alaqah) or a lump (mudghah), the crime is more severe. Then, if the soul is breathed into it and the physical form is established, the crime increases in gravity. [6]

These are some of the most explicit statements from Medieval Muslim scholars; they deemed that life begins at inception. The Qur’an states, “Does man think that he will be left for naught (sudan)? Was he not a sperm-drop ejected from sexual fluid?” (75:36-37). In other words, the “sperm-drop” phase is the start of human existence, and existence is the basis for human dignity, as with other living creatures. The human being was a “sperm-drop.” If that is so, this strongly suggests that meddling with this fluid, even before the fetus begins to grow and develop limbs and organs, would be to violate the sanctity of a protected creature. The Qur’an further says, “Did We not create you from a despicable fluid? And then, We placed you in a firm resting place, until a defined scope” (Q 77:20-22). The use of the second person plural pronoun (you) in these verses strongly suggests that the start of human life begins at inception. This is not to mention the multiple verses forbidding one from killing one’s children due to poverty, fear of poverty, or out of shame or folly.

The Sunnah of the Prophet Muhammad ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) similarly offers sufficient indication that even though the fetus is not fully formed, it is still an actualized existence and living creature. The Prophet reportedly said, “The miscarried fetus will remain humbly lying with its face down at the gates of heaven saying, ‘I will only enter when my parents do.’”[7] Similarly, it is reported that when the second caliph ‘Umar b. al-Khattab ordered that an adulteress discovered to be pregnant be stoned to death, the companion, Mu’adh b. Jabal, said to him, “Even if you have a right to punish her, you do not have a right to punish what is in her belly.”[8] The Prophet and his followers after him never executed a pregnant woman guilty of a capital crime until she gave birth and someone had taken on the care of the child. In addition, they imposed a hefty fine on those who were directly responsible for a woman’s miscarriage.[9] All of this indicates that the fetus is to be respected from the time the male’s sperm reaches the ovum of the woman.

Imam Al-Razi’s Ethical Reflection on the Qur’anic Verse, 6:140

God says in the Qur’an, “Ruined are those who murder their children foolishly without knowledge and forbid what God has provided them with while inventing falsehoods against God. They have strayed and are not guided aright” (6:140).

About this verse, Imam Fakr al-Din al-Razi (d. 1210) comments,

Many issues relate to the verse: the first issue is that God mentioned, in the preceding verse, their murder of their children while depriving themselves of the sustenance that God provided them with. Then, God brings these two matters together in this verse while clarifying to them all that is a logical consequence of this judgment, such as ruin, folly, lack of knowledge, the deprivation of what God has provided them, false statements against God, straying, and the privation of guidance. So these are seven characteristics, each of which is an independent cause for censure. The first is ruin (khusran), and that is because a child is an immense blessing from God upon a person, so when one strives to terminate its existence, he/she suffers great ruin and especially deserves great censure in life and a severe punishment in the hereafter due to terminating its existence. Censure in life is warranted because people say one has murdered one’s child out of fear of it eating one’s food. And there is no censure in life greater than such. Punishment in the hereafter is warranted because the closeness resulting from childbirth is one of the greatest sources of love. Then, upon achieving it, one sets out to deliver the greatest of harms to it [the child], thereby committing one of the gravest sins. As a consequence, one of the greatest punishments is warranted. The second is folly (safahah), which is an expression of condemnable frivolousness. That is because the murder of the child is only committed in light of the fear of poverty. And, even though poverty is itself a harm, murder is a much graver harm. Additionally, this murder is actualized, while the poverty [feared] is merely potential (mawhum). So enforcing the maximum harm in anticipation of a potential minimal harm is, without doubt, folly. The third regards God’s saying, “without knowledge.” The intent is that this folly was only born of the absence of knowledge. And there is no doubt that ignorance is one of the most objectionable and despicable of things. The fourth regards depriving one’s self of what God has made lawful. It is also one of the worst kinds of stupidity, because one denies one’s self those benefits and good things, becoming entitled by reason of that deprivation of the severest torment and chastisement. The fifth is blaspheming God. And it is known that boldness against God and blaspheming Him is one of the cardinal sins. The sixth is straying from prudence (rushd) with relation to the interests of the faith (din) and the benefits found in the world. The seventh is that they are not guided aright. The benefit of it is that a person might stray from the truth but may return to proper guidance. So God clarifies that they have strayed without ever obtaining proper direction. So it is established that God has censured those described as having murdered children and denied what God has made lawful for them, with these seven characteristics necessitating the worse types of censure. And that is the ultimate hyperbole.[10]

The Ethical Contentions of a Moroccan Mufti

We have already quoted Shaykh Muhammad Al-Ta’wil of Morocco. Like the medieval scholars, he maintained a very conservative opinion on abortion, allowing it only if the mother’s life was at risk. The following is a list of his nine ethical contentions against abortion and those scholarly opinions allowing it. The bulk of what follows is a literal translation of his views. Regarding why abortion is immoral, he says:

  • Firstly, it is a transgression against a vulnerable creature who has committed neither sin nor crime, a denial of it from its right to existence and life that God has given it and Islam has guaranteed as well as the taking of a life in some situations.
  • Secondly, it is a clear challenge to God’s will and a demonstratively defiant act meant to stubbornly contend with God’s action, creative will, and judgment. And that manifests itself in the murder of what God has created, the voiding of its existence, and a commission of what He deems unlawful.
  • Thirdly, it a decisively demonstrative proof of hard-heartedness, the absence of mercy, and the loss of motherly and fatherly affection or rather the loss of humanity from the hearts of those who daringly undertake the act of abortion with dead hearts and wicked dark souls.
  • Fourthly, it is the epitome of self-centeredness, selfishness, narcissism, and sacrifice of what is most precious¾one’s own flesh and blood, sons and daughters¾to gratify the self and enjoy life and its attractions far away from the screams of infants, the troubles of children, and the fatigue resulting from them.
  • Fifthly, it is a practical expression of one’s bad opinion of God, the lack of trust in His promise to which He decisively bounded Himself to guarantee the sustenance of His creation and servants. It also shows ignorance of His saying, “And, there is not a single creature on earth except that God is responsible for its sustenance, just as He knows its resting place and place from which it departs. Every thing is in a manifest record (Q 11:6); as well as His saying, “And do not kill your children due to poverty. We will provide for you as well as for them” (Q 6:151); in addition to His saying, “And, do not kill your children out of fear of poverty. We will provide for them and for you” (Q 17:31). This is in addition to other verses and prophetic traditions that indicate that all provisions are in God’s control and that no soul will die until it exacts its sustenance in full as the Prophet said.
  • Sixthly, it is a bloody war against the Islamic goal, introduced by the Prophet and to which he called and strongly encouraged, of population growth and increase in posterity.
  • Seventhly, it undermines the aims of the Islamic moral code that considers the preservation of offspring to be one of the five essentials upon which the sanctified revealed moral code is built.
  • Eighthly, it goes against the nature to which God has disposed both animals and human beings to of love of children, childbearing, and the survival of progeny….
  • Ninthly, it is the grossest display of bad manners towards God and the epitome of ingratitude towards a blessing and the rejection of it. And that is because both pregnancy and children are among God’s favors upon His servants and among His gifts to the expectant mother and her husband.

These are some important matters of consideration. Every Muslim, woman, and man, will ultimately need to decide what burdens he/she is prepared to meet God with. While abortion is an emotionally charged matter, especially in Western politics, emotions play no role in the right or wrong of legislation. Although our laws currently may not consider a fetus aborted before its survival outside of the womb to be viable, the Muslim who understands that legal positivism does not trump objective or moral truths should be more conscientious and less cavalier in his/her attitude about the taking of life and removing the viability of life.


[1] Al-Ta’wil, Muhammad b. Muhammad b. Qasim. Shadharat al-Dhahab fi ma jadda fi Qadaya al-Nikah wa al-Talaq wa al-Nasab. Hollad: Sunni Pubs, 2010, p. 148.

[2] Muhammad b. ‘Abd Al-Baqi Al-Zurqani quotes Ibn ‘Abd Al-Barr as saying,

They unanimously agreed that anyone who marries without mention of a particular condition while having the intention to remain with her for a period that he has in mind is permitted (ja’iz), and it is not a temporary marriage. However, Malik said this is not an attractive thing to do (laysi hadha min al-jamil). Nor is it part the conduct of moral people (la min akhlaq al-nas). Al-‘Awza’i took a solitary view saying that it is a temporary marriage. And, there is no good in it (la khayra fihi). ‘Ayyad stated it.

Al-Zurqani, Muhammad b. ‘Abd Al-Baqi b. Yusuf. Sharh al-Zurqani ‘ala Muwatta’ al-Imam Malik. Beirut: Dar al-Kutub al-‘Ilmiyyah, (no date), 3/201.

[3] Hafiz Ibn Hajar al-‘Asqalani said about the prophetic tradition, “Kill whoever changes his lifepath”, “Some Shafi’i jurists clung to it concerning the killing of anyone who changes from one non-Islamic faith to another non-Islamic faith (din kufr)…”

Al-‘Asqalani, Ahmad b. ‘Ali b. Hajar. Fath Al-Bari Sharh Sahih al-Bukhari. Muhammad Fu’ad ‘Abd Al-Baqi Edition. Riyadh: Al-Maktabah Al-Salafiyyah, (no date), 12/272.

[4] Al-Ra’ini, Muhammad al-Hattab. Qurrah al-‘Ayn bi Sharh Waraqat al-Imam al-Haramayn. Beirut: Mu’assassah al-Kutub al-Thaqafiyyah, 2013, p. 78.

[5] Al-Wazzani, Abu ‘Isa Sidi al-Mahdi. Al-Nawazil Al-Jadidah Al-Kubra fi ma li Ahl Fas wa ghayrihim min al-Badw wa al-Qura al-Musammah bi Al-Mi’yar Al-Jadid Al-Jami’ Al-Mu’rib ‘an Fatawa al-Muta’akhkhirin min ‘Ulama al-Maghrib. Rabat: Wizarah al-Awqaf wa al-Shu’un al-Islamiyyah, 1997, 3/376.

[6] Al-Ghazali, Muhammad Abu Hamid. Ihya ‘Ulum al-Din. Beirut: Dar Ibn Hazm, p. 491.

[7] This is how Qadi Abu Bakr b. al-‘Arabi relates the report as related by Al-Wazzani in his Nawazil 3/376. In the Musnad of Abu Hanifah, however, the Prophet reportedly said, “You will see the miscarried fetus filled with rage.” When it is asked, “Enter Paradise”, it will respond, “Not until my parents come in [too].” Al-Hanafi, Mulla ‘Ali Al-Qari. Sharh Musnad Abi Hanifah. Beirut: Dar al-Kutub al-‘Ilmiyyah, 1985, p. 252.

[8] Ibn ‘Asakir, Abu al-Qasim ‘Ali b. al-Hasan. Tarikh Madinah Dimashq wa Dhikr Fadliha wa Tasmiyah man hallaha min al-Amathil aw ijtaza bi Nawahiha min Waridiha wa Ahliha. Beirut: Dar al-Fikr, 1997, p. 342.

[9] Among the fines due for causing the miscarriage of a fetus are: 1) prison or flogging; 2) the penance for murder (kaffarah), which is the freeing of a slave, fasting two consecutive months which is compulsory for Shafi’is and recommended for Malikis; and 3) the gifting of a slave to the woman who lost her child.

[10] Al-Razi, Fakr al-Dina. Tafsir al-Fakr al-Razi al-Mushtahir bi Al-Tafsir Al-Kabir wa Mafatih al-Ghayb. Beirut: Dar al-Fikr, 1981, pp. 220-221

Abdullah bin Hamid Ali is the Founding Director of the Lamppost Education Initiative. He serves as an assistant professor of Islamic law and Prophetic Tradition at Zaytuna College in Berkeley, California (2007-present). He holds a Ph.D. in Cultural and Historical Studies in Religion (2016) and an M.A. in Ethics and Social Theory (2012) from the Graduate Theological Union. He obtained his B.A. (ijaza ‘ulya) in Islamic Law (Shariah) from the prestigious Al-Qarawiyin University of Fes, Morocco in 2001. He also served as full-time Islamic chaplain at the State Correctional Institute of Chester, PA from 2002-2007. His research interests include the interconnection between law and identity formation, comparative Islamic law, and Islam’s role in the modern world.

5 Comments

5 Comments

  1. Avatar

    Spirituality

    May 29, 2019 at 3:35 PM

    As Salamu Alaikum,

    Jazak Allahu Khayran for this article.

    I agree that legal permissibility does not equal moral acceptability. This article covers the moral considerations regarding the embryo and fetus.

    However, there are also moral considerations with regards to the pregnant woman – especially in cases of rape and incest.

    Therefore, I suggest in order to more fully explore Islamic morality regarding abortion, the following need to be taken into account.

    1. What is the Islamic moral viewpoint regarding rape, and pregnancy arising from rape?
    2. WHat is the Islamic moral viewpoint regarding incest, and pregnancy arising from incest?
    3. What is the Islamic moral viewpoint regarding raising children arising from these ‘unions’? Who is responsible – not just financially, but in providing tarbiyya?
    4. What is the Islamic moral viewpoint regarding caring for women who have faced such trauma?

    I suggest that women scholars, who have actually been pregnant and can understand the experience, need to carefully consulted.

    (Small caveat regarding terminology: a small portion of the article suggests that life beings with a ‘sperm drop’, which is not technically correct. Life beings after a ‘sperm drop’ meets up with an ‘egg drop’ and results in a fertilized egg).

    I wish everyone the best during these last remaining days of Ramadan!

  2. Avatar

    Spirituality

    May 29, 2019 at 8:42 PM

    I also would like to further address moral considerations with regards to an embryo and fetus: with regards to a still birth, we treat these entities very differently.

    A fetus that is still born is named, washed, shrouded, and officially buried with Muslims. Some scholars even say an Aqeeqah should be performed.

    On the other hand, an embryo that is still born is not named, washed or shrouded, and it can be buried anywhere.

    Scholars also differentiated regarding the status of a woman’s bleeding after still birth of a fetus versus an embryo.

    A woman that gave birth to a fetus that was stillborn is considered to be in a state of nifas, and related rulings apply (she cannot fast or pray or have sexual intercourse).

    A woman that gave birth to an embryo that was stillborn is not considered to be in a state of nifas – she is considered to have irregular bleeding. She can fast, pray, have sexual intercourse.

    These legal guidelines take as their basis that an embryo, while it is ‘alive’ is not a full person and is not accorded such rulings. A fetus, on the other hand, is both alive and a full person.

    Such concepts of person-hood surely have a role in determining both the legal permissibility as well as moral acceptability of abortion according to Islam.

    Wasalam

    • Avatar

      S

      June 2, 2019 at 9:38 AM

      Spirituality,

      I think it would help if you were to provide some verses from the Quran, ahadeeth and perhaps some sound legal opinions from viable scholars to buttress your arguments. Furthermore, in my humble opinion, whether a scholar is a man or a woman has nothing to do with the topic at hand.

      • Avatar

        Spirituality

        June 5, 2019 at 3:35 PM

        As Salamu Alaikum S,

        Eid Mubarak!

        The legal differentiation regarding burial rights, naming, shrouding for still born embryos versus fetuses that I cited above is a well established legal position.

        It is both the ‘Salafi’ position –

        (see https://islamqa.info/en/answers/50106/the-foetus-died-in-the-fourth-month-should-he-be-named-and-the-aqeeqah-be-done-for-him-and-should-he-be-washed-and-shrouded)

        as well as the Hanafi school:

        (https://www.seekersguidance.org/answers/hanafi-fiqh/what-is-the-proper-procedure-after-an-early-miscarriage/)

        I’m sure there are differences of opinion regarding this matter (ie, the Maliki school in particular maybe different). If you have differing legal opinions to share, I would be very interested in reading them.

        Regarding the issues in my first post, I am actually seeking Islamic guidance on these issues. Again, if you have relevant material to share, I would be interested in reading them.

        My point is not that the life and value of an embryo is insignificant. Rather, my point is that there are larger familial and social issues that need to be considered, especially for those who take the position that abortion is not morally acceptable at any time, under any circumstance. Unfortunately, I do not see these issues addressed in this article.

        On the issue of the relevance of whether a scholar is a man or a women in discussing this issue, I do think we will have to agree to disagree.

        Wasalam and I hope you had a Blessed Ramadan!

  3. Avatar

    Philip

    May 31, 2019 at 5:10 PM

    Assalamu Alaikum,

    Beautifully (and strongly) worded argument. Really really needed to be said, and in precisely this way. If we truly believe that all things happen according to the will of Allah (SWT), then in my humble opinion there really is no other position that is not at its core a violent “defiance” of His will, as you describe.

    May Allah reward you for speaking an unpopular truth.

    Jazak Allahu Khairan.

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#Life

So You Are The Wali, Now What?

Dr Shadee Elmasry

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The way most Muslims (as well as conservative Christians and Jews) live, a man asks for a woman’s hand in marriage from the father.

The father is not just a turnstile who has to say yes. He is a “wali” or protector and guardian of his daughter’s rights. So he will be asking some serious questions that would be awkward if the woman had to ask them.

Furthermore, in the Muslim community today esp. in the West, there are many converts that seek out a wali because they have no male relative who is Muslim. In this post, I share some guidelines aimed at the wali in his new role and stories that are useful.

Being a wali is not an honorary role. You’re not just throwing out the first pitch. You’re actually trying to throw curveballs to see whether the proposal checks out or has issues.

Here are some questions and demands a wali should make:

Background check: Call and meet at least four people that were close to the man who has proposed and interview them. There’s no husn al-zann (good opinion) in marriage. As a potential suitor, you are rejected until you prove yourself, much like an application for employment. These days, most people’s background can be found on their social media, so the wali has to spend time scrolling down. Keep scrolling, read the comments, look at the pictures, click on who’s tagged in those pictures. Get a good idea. You are a private investigator *before* the problem happens, not after. 

Check financials:  You need to see the financials to make sure they are not in some ridiculous debt or have bad credit such that they can’t even rent an apartment or cover basic needs. You want some evidence that he can fulfill the obligation of maintenance.

Check the educational background or skill set: This is a given. If it’s solid, then it can outweigh lack of funds at this moment.

Check medical records: If this is a stranger, the wali needs medical records. There was once a wealthy, handsome young man that was suave and a seemingly amazing prospect who proposed for a girl who was comparatively of average looks and from a family of very modest means. The mother and daughter were head over heels, but the dad had enough common sense to know something was up.

“Why would he come knocking on our door?,” he asked.

So the father demanded medical records. The guy never produced them. When the dad pressed him, the man admitted, he had a sexually transmitted disease (STD) and that’s why he couldn’t find anyone else to marry him.

Now note, there are legitimate cases where people have a past when they have made mistakes. This happens to the best of us, and the door for tawbah (repentance) is open. In those cases, there are organizations that match-make for Muslims with STDs. People should act in a responsible manner and not damage the lives of other humans beings.

Lifestyle: It is your job to check if the two parties have agreed on life essentials such as religious beliefs, where to live, how to school kids, etc?

In-laws: Have you at least met the family of the suitor and spent some time with them to make sure there’s nothing alarming?

Engagement: Contrary to popular understanding, there is such a thing as engagement in Islam. It’s an announcement of a future commitment to marriage. Nothing changes between the fiancees, but nobody is allowed to propose anymore. The purpose of engagement is to give time for both parties to get ready. For example, the groom may want to save up some money, or the girl may be finishing up college. Also, it’s easy to put on a face during the get-to-know process, but it’s hard to fake it over an eight or nine-month period. I remember a story where a young woman was engaged, and four months into the engagement they discovered the young man was still getting to know other women. He basically reserved the girl and then went to check for better options. Needless to say, he was dumped on the spot. Engagements are commonly a few months. I think more than a year is too much.

Legal/Civil:  The marriage should be legal/civil in the country where you will settle. If you accept a Shariah marriage but not a civil one, know that you’re asking for legal complications, especially if a child enters the picture. (Ed. Note- we realize that some countries do not allow legal registration of more than one marriage- if that is a consideration please look at all options to protect your ward. There are ways to get insurance that can be set up.)

Mahr: Get 50% of the dowry upfront (or some decent amount) and whatever is scheduled to be paid later should be written and signed. I’ve seen too many cases where a really nice dowry is “promised” but never produced.

The dowry should be commensurate to current standards depending on the man’s job. For example in our area in America 5, 7, or 10k is a common range.

In sum, there are very few things in life that are as bad as misery in marriage. The wali’s job is to eliminate the bad things that could have been avoided. If that means he has to be demanding and hated for a few months, it’s worth the cost.

It’s preventative medicine.

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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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