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This Article Could be Zakat-Eligible

Who Accounts For This Pillar of Islam

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Co-written by Shaykh Osman Umarji

As writers on MuslimMatters, it came as a surprise when the website we write on marked itself zakat-eligible on its fundraiser for operations in Ramadan. This website has previously highlighted the misuse and abuse of zakat for vague and dodgy reasons, including instances of outright fraud by nonprofit corporations.  We have lamented the seemingly inexorable march from zakat being for living human beings in need to financial play-doh for nonprofit corporate boards.

Estimated global zakat is somewhere between $200 billion to $1 trillion.  Eliminating global poverty is estimated at $187 billion– not just for Muslims, but everyone.  There continue to be strong interests in favor of more putty-like zakat to benefit the interests of the organizations that are not focused on reducing poverty. Thus, in many ways, a sizeable chunk of zakat benefits the affluent rather than the needy. Zakat, rather than being a credit to the Muslim community, starts to look more like an indictment of it.

No, it’s not ikhtilaf

The recent article on this website, Dr. Usama Al-Azmi seemed somewhat oblivious to the cavalier way the nonprofit corporate sector in the United States treats Zakat.  The article did not do justice to legitimate concerns about zakat distribution by dismissing the issue as one of “ikhtilaf,” or a reasonable difference of opinion, as it ignored the broader concern about forces working hard to make zakat a “wild west” act of worship where just about anything goes.  

It’s essential to identify the crux of the problem. Zakat has eight categories of permissible beneficiaries in the Quran. 1 Two are various levels of poor, distribution overhead; then there are those whose hearts are to be inclined,  free captives, relieve indebtedness, the wayfarer, and the cause of Allah (fisabilillah). The category of fisabilillah, historically,  the majority of scholars have interpreted as the cost of jihad (like actual fighting). However, in recent times, Muslim nonprofit corporations, with support of learned Muslim leaders, have adopted an increasingly aggressive and vague posture that allows nearly any beneficial cause to get zakat.   

The concerns about the abuse of zakat, and the self-serving desire by corporations to turn fisabilillah into a wastebasket Zakat category that could be “incredibly broad” has to do with far more than a difference of opinion (ikhtilaf ) about the eligibility of Dawah organizations. Let’s assume dawah and educational organizations are eligible to administer Zakat funds.  We need to know what that means in practice. What we have is a fundamental question the fisabilillah-can-mean-virtually-anything faction never manages to answer: are there any limits to zakat usage at all?

Show Your Work

We fully understand that in our religious practice, there is a set of rules.  In Islamic Inheritance for example, for example, we cannot cavalierly change the definition of what a “daughter” is to mean any girl you want to treat like a daughter. There is an established set of rules relating to acts of worship. For the third pillar of Islam, zakat, there seem to be no limits to the absurd-sounding questions we can ask that now seem plausible.  

Unfortunately, we have too many folks who invoke “ikhtilaf” to justify adopting almost any opinion and not enough people who are willing to explain their positions. We need a better understanding of zakat and draw the lines on when nonprofit corporations are going too far.

You can be conservative and stand for zakat as an act of worship that contributes to social justice. You can have a more expansive interpretation friendly to the nonprofit corporate sector’s needs to include the revenue source. Wherever you stand, if you don’t provide evidence and develop detailed uniform and accepted principles and rules that protect those people zakat was meant to help, you are inviting abuse and at the very least, opening the door towards inequitable results. 2

Can you feed the needy lentils and rice for $100 a meal, with margins of $99 a meal going to pay salaries to provide these meals and fundraise for them?  Why or why not?

Can a Dawah organization purchase an $80 million jet for its CEO, who can use it to travel the world to do “dawah,” including places like Davos or various ski resorts?  What rules exist that would prevent something like this? As far as we know, nothing at all.

Bubble Charity

In the United States, demographic sorting is a common issue that affects all charitable giving, not just giving by Muslims. The most affluent live in neighborhoods with other people who are generally as prosperous as they are. Certain places seem almost perversely designed to allow wealthy residents to be oblivious to the challenges of the poor.  There are undeniable reasons why what counts as “charity” for the wealthy means giving money to the Opera, the Met Gala, and Stanford University.

The only real way affluent Muslims know they supposed to care about poor people is that maybe they have a Shaikh giving khutbas talking about the need to do so and their obligation of zakat once a year or so. That is now becoming a thing of the past. Now it is just care about fisabilillah- it means whatever your tender heart wants it to mean.   

As zakat becomes less about the poor, appeals will be for other projects with a higher amount of visibility to the affluent.  Nonprofits now collect Zakat for galas with celebrities. Not fundraising at the gala dinner mind you, but merely serving dinner and entertaining rich people. Educational institutions and Masajid that have dawah activities (besides, everything a Masjid does is fisabilillah) can be quite expensive. Getting talent to run and teach in these institutions is also costly. Since many of the people running these institutions are public figures and charismatic speakers with easy access and credibility with the affluent. It is far easier for them to get Zakat funds for their projects.

People who benefit from these projects because they send their children to these institutions or attend lectures themselves will naturally feel an affinity for these institutions that they won’t have with the poor. Zakat will stay in their bubble.  Fisabilillah.

Dawa is the new Jihad

Jihad, as in war carried out by a Khalifah and paid for with zakat funds, is an expensive enterprise. But no society is in a permanent state of warfare, so they can work towards eliminating poverty during peacetime. Muslim communities have done this in the past.  Dawah is qualitatively different from jihad as it is permanent. There was never a period in Islamic history when there was no need to do dawah. Many times in history, nobody was fighting jihad. There was no period of Islamic history when there were there was never a need for money to educate people. Of course, earlier Muslims used zakat in education in limited, defined circumstances. It is not clear why limitations no longer apply.  

Indeed dawah is a broad category.  For example, many people regard the Turkish costume drama “Diriliş: Ertuğrul” as dawah.  Fans of the show can’t stop talking about the positive effects it has had on their lives and their iman. What prevents zakat from funding future expensive television costume dramas? Nothing, as far as we can see.   

No Standards or Accountability

Unfortunately, in the United States, there are no uniform, specific standards governing zakat. Anything goes now when previously in Islamic history, there were appropriate standards. Nonprofit corporations themselves decide if they are zakat-eligible or not. In some instances, they provide objectively comical explanations, which supporters within the corporation’s bubble pretty much always swallow whole. Corporations don’t have to segregate Zakat-eligible funds from general funds. When they do, they can make up their own rules for how and when they spend zakat. No rules make zakat indistinguishable from any other funding source since they can change their standards year after year depending on their funding needs (if they have rules at all) and nobody would be the wiser. It is exceedingly rare for these corporations to issue detailed reports on how they use zakat.  

The Shift to Meaninglessness

Organizations with platforms (like the one that runs this website) are going to be eager to get on the zakat gravy train. There is no cost to slapping a “zakat-eligible” label on yourself, either financial or social. It seems like everyone does it now. Some Zakat collectors are conscientious and care about helping the poor, though they are starting to look a little old-fashioned. For them, it may make sense to certify Zakat administrators like halal butchers.

Zakat used to be about helping discrete categories of human beings that can benefit from it.  It can now mean anything you want it to mean. In the end, though, without real standards, it may mean nothing at all.

Footnotes:

  1. The sunnah also highlights the essence of zakah as tending to the needs of the poor. For example, the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) commanded Muadh bin Jabal, when sending him to Yemen, to teach the people that Allah has obligated charity upon them to be taken from their rich and given to their poor (Sahih Muslim).
  2. In Islamic legal theory (usool al-fiqh), sadd al-dhariya is a principle that refers to blocking the means to evil before it can materialize. It is invoked when a seemingly permissible action may lead to unethical behavior. This principle is often employed in financial matters.

Ahmed Shaikh is a Southern California Attorney. He writes about inheritance, nonprofits and other legal issues affecting Muslims in the United States. His Islamic Inheritance website is www.islamicinheritance.com

20 Comments

20 Comments

  1. Avatar

    Spirituality

    June 10, 2019 at 2:27 PM

    As Salamu Alaikum,

    Jazak Allahu Khayran for this very necessary article.

    Do you have any organizations that you recommend for zakat payment? What about Islamic Relief USA, Helping Hands for Relief and Development, Zakat Foundation of America?

    Many of these organizations have a mission of working with the poor, and also, allow one to designate their payment as ‘Zakat.’

    • Avatar

      Osman Umarji

      June 11, 2019 at 12:55 PM

      My advice is to seek to out an organization that gives 100% of zakat proceeds to the poor in your locality or greater region. Ask a respected scholar for specific recommendations in your area.

      • Avatar

        Spirituality

        June 11, 2019 at 2:20 PM

        Jazak Allahu Khayran for your response!

        Unfortunately, as you mention, ‘respected scholars’ do not seem to be trustworthy regarding this issue…

        If anyone knows of any respected institutions in the Baltimore/Washington area that gives 100% of the zakat proceeds to the poor, please let me know!

        • Avatar

          Ahmed Shaikh

          June 11, 2019 at 6:38 PM

          You are right. Even terms like “Scholars” in the US Muslim community are questionable and up for grabs. There is no uniform criteria for what is “respected” (and by whom). So it comes down to who you respect and why. Like Zakat organizations, there is no accrediting body for Shuyukh, Imams and such, no disciplinary process, no codes of conduct and no minimum level of qualifications. I point this out only because often we use scholars as a crutch, we go by endorsements of charismatics to substitute for our own judgment. It would be great if there were accredited Zakat distributors who followed uniform, strict audited standards.

          Some local communities have brothers and sisters that work hard though to distribute Zakat to the poor and needy. Shuyukh will not audit them, that is not what they do. Any endorsements they get are usually in the “he is a good brother” genre. I have seen Shuyukh endorse organizations, products, and services they know next to nothing about. You should do your own due diligence. You can of course also distribute Zakat yourself to the poor and needy that may be among your own family or friends, or of people that you know and trust to do this. You can also look to an organization with a master strategy on accomplishing something big with their Zakat distributions. There are large Muslim organizations that take their role as Zakat distributors seriously and want to do it with ehsan (though they do it using their own standards and not uniform standards, which don’t exist). You should make sure where you donate meets the criteria for the kind of impact you want. It would be too easy for me to say “donate to charity X.” I won’t do that. For your research, I would suggest looking at the following:

          1) Does the charity publish Zakat distribution policies?
          2) Does it claim everything it does is Zakat eligible? If so, stay away (though feel free to read and comment on their website (I’m looking at you, MuslimMatters).
          3) Does the charity have a policy on segregating Zakat funds?
          4) Does the charity have a policy of not using Zakat funds for overhead? This is not a deal killer, it may be part of having a sustainable operation and Allah expressly permits it in the Quran. But if there is an endowment that pays for overhead or if it is a small, well-run volunteer operation, bonus points.
          5) Are there independently-audited financial reports? If they do, read it or have it read by a trusted friend who likes reading these things.
          6) Read the organization’s 990, is something out of whack? Note Masajid almost never have 990s since they are not required to file them, but they should make their financials available if you are going to donate to them.
          7) Does the charity use Zakat funds only to benefit the poor and needy (that may include services)? Yes, there are other legitimate criteria, but so long as people are starving or have no access to water that won’t make them sick, c’mon.

          • Avatar

            Tariq al-Timimi

            June 12, 2019 at 6:41 AM

            Totally agree with you. It’s refreshing to see these issues being addressed frankly, and, with respect to your point about about “scholars” (whatever that means today–as you mention) endorsing causes and charities that they have no idea about, this displays a lack of ethical practice on their part: that endorsement is, in fact, a shahada – one that they will most certainly be asked about. It devalues the entire exercise.

          • Avatar

            Spirituality

            June 12, 2019 at 1:05 PM

            Jazak Allahu Khayran for your very comprehensive response and guidance. It will help my process of searching for an organization to give my zakat to, Insha Allah!

        • Avatar

          Ramy

          June 23, 2019 at 7:58 AM

          In response to the question about a local organization in the Bal-DMV area that gives strictly to the poor: see the Islamic American Zakat Foundation (IAZF) headed by Dr Imad ad-Dean Ahmad.
          https://www.iazf.org/

          IAZF sticks to the 8 categories of zakat, and can diligently provide it’s records if asked.

      • Avatar

        Imran

        June 17, 2019 at 3:03 PM

        Just an issue I’ve been grappling with re the “locality” clause. I am conflicted between giving zakat that will literally save the lives of poor Muslims in Africa or Yemen or Myanmar via digging wells, food staples, medical aid, etc. on the one hand, and say, cancelling some student debt for a local student in Laguna Beach, CA who has decided to obtain their Masters or PhD in Gender Studies or Psychology at USC for $75,000 a year on the other.
        In considering local preference, is there or shouldn’t there be some antecendent presumption that absolute living standards for those in “poverty” be roughly equal?

        • Avatar

          Osman Umarji

          June 17, 2019 at 11:28 PM

          There are numerous considerations regarding local vs global zakat giving that will inshaAllah be the subject of a future article. However, I will say that student loan debt, especially for graduate school, absolutely does not qualify for zakat. The category of people in debt is not a free for all who take loans for non-essential things like higher education, mortgages, cars, etc.

          In short, give your zakat to a local organization you trust. If you really want to give globally, give some of your zakat to a global cause through an organization that gives 100% of the proceeds to the needy.

          • Avatar

            Imran

            June 18, 2019 at 11:46 AM

            JazakAllah khair Sh. Osman, looking forward to the article. It is timely because literally last week at Jumah the khateeb advocated cancelling college student debt with Zakat instead of sending it abroad. It would be interesting to address what “local” means in our modern technology-driven times versus in the Prophet’s (saws) time.

  2. Avatar

    Abdallah Jadallah

    June 10, 2019 at 9:56 PM

    Great article!! This has been on my mind for a long time.

  3. Avatar

    Tariq al-Timimi

    June 11, 2019 at 5:46 AM

    I never comment, but here I must: thank you for this piece, that tackles several of the frustrations I have recently had with this very hazy, loose take on zakah.

    The only thing I would highlight though is that, in terms of da’wah and jihad, many jurists (eminent Hanafi ones in particular) recognised their relationships as congruent: that is to say, jihad is da’wah by other means (to take a leaf out of Von Clausewitz), and vice versa.

    • Avatar

      Ahmed Shaikh

      June 11, 2019 at 5:54 PM

      Jazakallahu Khair. What do you think about using Zakat funds to pay for a TV series about the Sahabah? Say it is intended for dawa?

      • Avatar

        Tariq al-Timimi

        June 12, 2019 at 11:04 AM

        Thank you for your question and engagement. The question is difficult to answer, and before I do, I’d like to provide some pointers:

        – zakah is a ‘ibada and a pillar; it has vertical-horizontal dimensions (that is to say it is a haqq towards Allah, and towards the people – all people that is, including non-Muslims); it is reasonable for the most part (viz. we can understand its aims and purposes); and Allah has set out fairly explicitly the categories whom are eligible (which is contra the Qur’anic norm – an important point here in fact, but it’s one too long to go into here at length).

        The question then becomes: what exactly is the purpose of this TV series about the Sahabah? And – crucially – under which of the eight categories may it be subsumed? They’ll argue that it falls under fi sabil illah (small letters to distinguish it from Fi Sabil Illah – a little more on that in a moment).

        This would bring us back full-circle to asking: what is the ambit (the ‘bandwidth’) of this category. Here there are three positions essentially:

        [1] the historical, classical meaning, that itrefers to qital (definitely the stronger case, IMO – for numerous reasons that would take too long to go into);

        [2] a minority modern take, the linguistic meaning: anything done for Allah’s sake), but this is sorely lacking for many reasons – again going into it would warrant a lengthy essay, but I will raise two important points here:

        i) even those who adopt this expansive definition, they will limit its scope (anyone reading their works on this will pick up on it immediately): they explicitly state that the purpose of fi sabil illah is to establish God’s rule on earth or that which upkeeps the existence of the religion and the masses (which is what Rashid Rida says, although it went without mention!), or to ‘revive an Islamic life in all spheres’. I’ll leave it to your mind to determine how this can be seen as violating all sorts of terrorism legislation in the West (something that, alarmingly, many charities and ‘scholars’ seem oblivious too when discussing this issue).

        ii) That even if one were to accept that fi sabil illah can be used for anything that is in the wide interests of the people, we have to seriously contend with what a widespread interest here is (maslaha ‘amma) – and, furthermore, and I always recall here something al-‘Uthaymin said regarding this: that even if one were convinced that it may be used for all purposes that serve the din, I would still refuse to give a fatwa in accordance with this (because of the huge possibilities for abuse – something you alluded to in your piece and comments).

        [3] Finally we have the centrist position (which takes some slight semantical gymnastics, but we don’t need to get into that), which is to say that it IS indeed for jihad – but jihad is not qital. Here they argue that since jihad is a means, and not an end in itself, we need to ask: for what purpose was jihad legislated (they will say: to defend the din, to spread the din, and to protect life and wealth). On that basis they say that whatever fulfils those functions may be subsumed fsa. (They have other arguments too, by no means at all is this comprehensive).There are many holes in this case, however, not least is the question of indeterminacy: who is to say that this fulfils or doesn’t fulfil the purpose of fsa? Again, I raise the point I did above about the implication here with issues to do with counter-terrorism legislation. If your intention (explicit or inferred) is that it is fi sabil illah – and you accept, as they often unwittingly do, that fsa = jihad in it’s broadest remit – then you are, essentially fundraising for terrorism (even if all you’ve done is collect money for a school or orphans).

        If we go back to our point earlier however regarding zakah: if it is ma’qul al-ma’na (reasonable), then what if someone were to argue that taxes paid to our governments are tantamount to zakah (and fulfil the purposes of zakah, not all of which have to be ‘activated’ at all times)? The concern I have here really is that this very important point seems to go totally unaddressed, even though, it was entertained and discussed in the classical sources and in more recent times.

        They will say: no, it is a ‘ibada and therefore requires a specific intention. We say, let’s accept this (there is a different take as to the type of intention required, one that is more consistent with the aforementioned point): fine, give that money with the intention of zakah (in fact, my understanding is that some mechanisms of this sort are already in place in some countries) – again this opinion is there in the sources.

        They will say: but zakah is for a particular categories and purposes! We say: but you’ve already widened those to encompass pretty much anything!

        Going back to your question then, what we require – casting aside all the points of concern I raise above (and I have many others too) – are a set of constraints and limitations (if we go with fsa centrist position). Since we have no authority to tell us (or do we? Fiqh Councils? The law of the land?): this is valid and this is an invalid cause, we are left, for our own purposes with having to devise a set of parameters enshrined in the texts. Some of these may be:

        1) (The question of alternatives):

        Do we have other good, successful series on the sahabah? Yes.

        2) (The question of needs):

        Is there a need for another one? IMO: No.

        3) (The question of proportionality):

        Is this an issue that is core/central and must be addressed? IMO: No. Even if one has disparaging opinions regarding the companions, there are still more fundamental concerns and issues to deal with. Besides, one really must ask themselves to what extent raising issues about the disputes among the companions, the battles and whatever else could serve the da’wah and religion in the current climate.

        4) (The question of public interest)

        Is this an issue effecting the masses of people, or even the masses of Muslims? Is it a harmful phenomenon for humankind? IMO: No, not at all. Most people aren’t occupied with these issues at all, I’d argue.

        Therefore in order to determine (without an authority) whether something falls within the rubric of fsa: is it needed? ii) proportionate. iii) public interest. iv) alternatives.

        Perhaps a final point worth noting/repeating: most of the fatawa and opinions permitting zakah for the purposes of the expansive fsa, appear to invariably mention the existence of legitimate authorities/a recognised collective of Muslims (a jama’ah, most often one engaged in FSA proper). There’s a huge elephant in the room, therefore, and one that I never see raised, as to what extent these charities are entitled to collect and administer zakah in the first place. In fact, upon surveying an anthology of such opinions regarding expansive fsa, one would quickly come to realise that they generally mention them in the context of ‘widespread public interests of the Muslims’ or in the context of a fatwa given to a government – in other words, not charities, and not for all these spurious causes, with all due respect to the intentions of those behind them.

        Anyway, these are really little more than a few of the issues that have been on my mind lately, and I am very tempted to raise a bundle of others, but this is way too long as it is. Bottom line my respected brother Ahmed is: if I were asked, my answer would be a firm no, but they’re welcome to other sources of revenue (again with a string of conditions attached). Wallahu a’lam.

  4. Avatar

    DI

    June 11, 2019 at 10:55 AM

    THANK YOU!

    Yet another example of Frankenstein Islam of the West that is totally out of touch with Islam of the ummah. Our community is better at creating thieves and greed than it is genuine concern for the fuqara. Islam is becoming much like affluent Christianity and affluent Judaism in the West.

    Our ulema are to blame too for creating the ‘its okay to be rich’ attitude and encouraging a prosperity gospel Islam. Endless fundraising without accountability has become a sect in itself.

    di.

  5. Avatar

    Ahmad

    June 12, 2019 at 12:27 PM

    Mashallah excellent article. There is an organisation in the UK which campaigns for local distribution and as of last year has started to donate funds to community and leadership development type funds.
    From the looks of it a lot charities do not adequately differentiate between zakat and sadaqah, and those that do sometimes take lax opinions.
    This is in particular to fee sabeel illah and paying people from zakat money.

    I have no problem with a charity saying ‘ to administrate your donation of £x we will place a charge of y%’ and that y% to be spent as sadaqah.

    For those in the uk i contacted UWT and was satisfied with their criteria of transferring wealth to the poor (please can brothers/sisters verify this statement is accurate at the time of donating)

    • Avatar

      Spirituality

      June 12, 2019 at 1:03 PM

      “I have no problem with a charity saying ‘ to administrate your donation of £x we will place a charge of y%’ and that y% to be spent as sadaqah.”

      As Salamu Alaikum, I completely agree. This seems to be a win-win situation…

  6. Avatar

    Imran

    June 17, 2019 at 2:49 PM

    Shukran for an essential article. Agree with you 100%.

  7. Avatar

    muslims life

    July 12, 2019 at 5:43 AM

    My advice is to seek to out an organization that gives 100% of zakat proceeds to the poor in your locality or greater region. Ask a respected scholar for specific recommendations in your area.

  8. Avatar

    Donate Your Zakat

    July 23, 2019 at 6:41 AM

    Mashallah amazing article. There is an association in the UK which battles for nearby conveyance and starting a year ago has begun to give assets to network and initiative improvement type reserves.

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#Islam

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

Dr Usaama al-Azami

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Sepoy rebellion, Shaykh Hamza

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

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

Opposing all government vs opposing a government

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

A complex tradition

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

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

What does the tradition actually say?

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

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

Al-Ghazzali on confronting tyrants

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

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

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

Modern discontinuities and their high stakes

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

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

Shaykh Hamza on the nature of government

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

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

Where do we go from here?

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

And Allah knows best.

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Can Women Attend The Burial Of The Deceased?

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

Dr Usaama al-Azami

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Quran at graveyard, woman attend burial

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

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

Key positions and evidence

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

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

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

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

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

Interpreting the evidence

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

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

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

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

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

The fiqh of modernity

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

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

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

And God knows best.

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

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

Shaykh Salman Younas

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Abortion

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

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

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

Shaykh Abdal Hakim Murad in Paradigms of Leadership (6)

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

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

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

Abortion

Did Jurists Only Permit Abortion in ‘Dire’ Circumstances?

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

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

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

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

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

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

Some Contemporary Views on Abortion

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

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

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

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

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

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

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

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

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

Framing the Problem: Basic Levels of Engaging the Law

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

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

(a) The Personal

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

(b) The Academic

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

(c) Fatwā, Irshād, and Public Preaching

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

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

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

(d) The Political

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

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

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

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

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

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

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

Abortion

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

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

The Problem of Imposition

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

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

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

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

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

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

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

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

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

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

Thou Shalt Make No Exceptions, But Should We?

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

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

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

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

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

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

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

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

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

Web MD

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

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

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

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

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

Conclusion: Refining our Conceptualization & The Bigger Picture

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

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

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

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

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

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

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

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

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

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

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

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

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

God alone is our sufficiency.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[28] Ibid., 6:755.

[29] Ibid., 6:763.

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

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

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

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

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

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

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

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

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

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

[40] al-Rāshidī, al-Miṣbāḥ, 28.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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