Selling Pork in the Hood: Come and Taste the Method of a Contemporary Legal Giant!

By: Salah Soltan | Translated by Suhaib Webb

 

Asalamu alaykum,

I’ve posted this article for a number of reasons. However, I would like all of us, students of knowledge, to focus on the fiqh method used in the article.

1. Teaching with dalil [evidences] and t’alil [causes]
2. Not regulated to one school
3. Respect for the aims and goals of the Law [maqasid and the qawa’id]
4. Respect for the views of others

 

—

ON THE FATWA OF THE EGYPTIAN MUFTI THAT

ALLOWS SELLING ALCOHOL OUTSIDE THE LAND

OF ISLAM

Praise be to Allah and peace and blessings be on His prophet, his household and who allies with him. Indeed Sh. ‘Ali Gom‘a is among those scholars who are known for their deep knowledge, accuracy, and tolerance. He also has a zeal for the religion of Allah that we thank him for. We also have full appreciation and love for him. I wish that this discussion would confirm these ties of love between us because knowledge relates its people as though they were kin. The people of knowledge complement one another.

This fiqhi discussion tackles his recent fatwa that allows doing business with alcoholic beverages, pork, usury, and gambling outside the lands of Islam with respect to the following points:

1. The danger of the fatwa

2. The West, for those who live in it, is a house of treaty and of invitation to Islam

and not a house of war.

3. The evidence for allowing working and trading with illegal things outside the

lands of Islam is based on weak aha>di>th, the weakness of which is either in their chain of narration or in their meanings.

4. A call and a plea for Sheikh Dr. ‘Ali Gom‘a

On the Fatwa of the Egyptian Mufti that Allows Selling Alcohol Outside the Land of Islam

First: The danger of the fatwa

This fatwa is dangerous because of the following points:

1. It is issued by Dar-Al-Ifta>’. It is available on its website (http://www.daralifta.

org) with the number 4189 and signed by Sheikh Dr. ‘Ali Gom‘a who is

held in a high esteem by the scholars and the laymen of the Muslims.

2. The fatwa was based on the presumption that the West is considered a house of war. This is the most dangerous issue in this fatwa.

3. The Sheikh answered with more than the questioner asked for. The questioner

asked about whether working in a company that is owned by a Muslim and sells

alcoholic beverages and pork is allowed. The fatwa has delved into allowing

usury, gambling, selling meat from dead animals in addition to allowing selling

alcoholic beverages and pork. It is true that the scholar is allowed to answer the

questioner with more than he asked for.

An example of this issue is narrated in the Book of Knowledge in Sahih Al-Bukhari, in the section of “Answering the questioner with more that what he asked for.” The questioner asked the Prophet (PBUH) about the performing wudu’ with seawater.

The Prophet (PBUH) answered “Its water is pure and its dead meat is allowed.”1 However, the expansion presented in the fatwa unnecessarily opened doors for doing prohibited things

Second: The West, for those who live in it, is not a house of

war; it is a house of treaty and an opportunity for the invitation to Islam.

In his fatwa and its accompanied evidences, the Sheikh used the phrases “house of war”, “people of war” and “house of disbelief” about ten times. Yet, the questioner from Europe was just asking about whether it is allowed for him to work in stores that sell alcohol and pork along with other products because he cannot find another job.

The Sheikh could have given him a fatwa that this is a case of necessity that may allowhim to work there but he should seriously search for another job so as to leave the haram completely. Also, the Sheikh could have told him that he is obliged to ask the owner of the store to exclude him from selling these h}ara>m items and only sell the other products. This is the essence of the fatwa of the European Council for Ifta’ and Research issued in its second session (no. 14) available in page 51 of the proceedings.

However, the Sheikh, may Allah forgive us and him, said: “it is allowed taking the

opinion of the scholars from the H}anafi madhhab who allow to deal with wrong

contracts in the house of war.” To support his view, he gave examples that went

beyond the trading in alcohols and pork as follows:

1. The sheikh based his fatwa on a mursal hadith that says “No usury between the people of war in a house of war”

2. The Prophet (PBUH) allowed usury – according to the opinion of the Sheikh –

for Bani Qaynuqa>‘ and Bani An-Nadir when he expelled them while there were

some Muslims who owed debts to them. The Prophet (PBUH) said to them

“lower and make haste” (i.e. write off the debt and accept an immediate

discounted payment). According to the Sheikh, this is a type of usury that the

Prophet (PBUH) allowed when dealing with the people of war.

3. The Prophet took sheep from Rukanah when the Prophet defeated him three

times in Mecca. Rukanah was a disbeliever from the people of Mecca which

was a house of disbelief at that time. The Prophet then generously returned the

sheep to him.

4. The Prophet (PBUH) let his uncle Al-‘Abbas Ibn ‘Abdil-Muttalib take usury in

Mecca – a house of war – and he did not prohibit him except in the year of the

Farewell Pilgrimage.

5. Abu Bakr bet the disbelievers that the Romans would defeat the Persians. Thus, betting was allowed because it was with the disbelievers and Mecca was a

house of war. On the Fatwa of the Egyptian Mufti that Allows Selling Alcohol Outside the Land of Islam

6. The Sheikh based his fatwa on the opinion of Abu Hanifah, Muhammad Ibn Al-Hasan, and As-Sarkhasi that there is nothing that prohibits dealing in usury

with the people of war in the house of war.

I will discuss these points in what follows. First, I will start with the verification of the foundation itself: Do we consider Europe, America, Japan, Australia, etc., a house of war for the Muslim living there or not?

Before going into details, I restrict the issue to whether these countries are considered house of war for the Muslims who live there. I will not consider the situation of the Palestinians regarding the Israelis who occupied their land, or the Kashmiris whose lands were occupied by the Hindus. The point of research is restricted to the rule of the countries where muslims live based on a treaty, covenant, visa, laws and regulations.

We have to consider the following:

1. The word harb (war) comes from the root harab which means to steal because

war steals the lives and the wealth. The house of war is the place where lives

and wealth are fair game to the Muslims and the non-Muslims. Thus, the

people fighting the Muslims are not safe in the house of Islam, and vice versa.

2. This term “house of war” was not known in the Islamic fiqh at the beginning of

Islam. It started to be used very late. It is a fiqhi, not a shar‘i, term. As such,

there is no obligation to hold on to it. It was never mentioned in authentic

textual sources.

3. For the above reason, Sheikh Dr. Taha Al-Alwani in his book “On the Fiqh of

Muslim Minorities” said: “Out jurists who coined the term “house of war” did

not live the global unity that we live today. They lived in a world of isolated

islands without much interaction. Thus, the fiqh of war was dominating due to

the circumstances of the time. Today, what we need is the fiqh of living

together because the circumstances are totally different, quantitatively and

qualitatively.”1 He also said: “It is not allowed to perform analogy between the

current reality and the distant past without taking into consideration the great

qualitative differences.”1

4. Even between the Hanafi scholars, there exists a difference on the

determination of the house of war. Al-Kasani Al-Hanafi said in Bada’i‘ As-

Sana’i‘ (7/131): “There is no disagreement among our friends (the Hanafi

scholars) that the house of disbelief becomes a house of Islam when the rules of

Islam dominate in it. The house of Islam becomes a house of disbelief when the

rules of disbelief dominate in it. This is what Al-Qadi Abu Yusuf and

Muh}ammad said.” We also disagree with them on the point that the house of

Islam becomes a house of disbelief when the rules of disbelief dominate because

it is possible that the land is overcome by some communists or secularists who

would rule with systems other than Islam as in Turkey. Yet, the land still is a

house of Islam. Similarly, the house of disbelief does not turn into a house of

Islam just because the rituals of Islam (Jumu‘a and Eid prayers) are held in it as

Ibn ‘Abidin says in Hashiyat Rad Al-Mukhtar (4/175). Ibn Hajar reported the

opinion of Al-Mawardi (Fath} Al-Ba>ri 7/230) that if the Muslim can proclaim his

religion in a house of disbelief, the place turns to a house of Islam and staying

there is better than leaving because it may make others turn to Islam. We agree

with Al-Mawardi that staying with the non-Muslims is recommended for the

reason that he mentioned. However, this place is not to be called the house of

Islam.

5. The fiqhi history and the current reality have produced a different view. There

are countries where Muslims are the majority, and the Law of Islam is not

completely dominating. As a minority in some countries, the Muslims have

complete safety to perform their rituals, work for their religion, and establish

their institutions such as mosques, schools, academic, social, and political

organizations. They have the legal rights as complete citizens just like any other

western civilian with complete political, economical and social rights. The

rights given to the Muslim minority are more than what many of the Muslims

in the Muslim land enjoy. In the West, the indigenous Muslims, immigrant

Muslims, and second-generation Muslims enjoy the complete rights of

citizenship. Do we consider these countries to be a house of war? It is more

appropriate to call these countries as house of treaty and invitation to Islam as

it is a fertile place for the genuine call to Allah. The number of people who

convert to Islam in the US, Europe, Australia, China and Japan are by the

hundreds on a daily basis. In these countries, there exists freedom to change

one’s religion to Islam. This freedom is more than what the educated women in

Egypt enjoy as we have seen the example of those women who converted to

Islam but were forced by the Church and the governing body to turn back to

Christianity. It is fair to say that despite the horrible actions of the US in

Afghanistan and Iraq and its blatant biased support for Israel, its human rights

violation against the Muslims since the incidents of September 11 did not reach

the level of violations that occurred in the parliamentary elections in Egypt in

2005, in the detention of more than 160 thousand in one week at time of Abdul-

Nasser, in the death of 30 thousand innocent victims in Hama in a few days by

the hands of Al-Assad, in the victims of Saddam Hussein in one year, in the

killings by the military in Algeria at the beginning of the nineties, or in the

human rights violations that occur in Tunisia presently.

6. I fear that being lax with regards to a fatwa that allows selling alcohol and pork

for those who work in European stores based on the presumption that Europe is

a “house of war” would lead to the spread of this concept. If we accept this

presumption, it will have a disastrous effect as follows:

a. It is not allowed to live in a “house of war.” Thus, all the immigrant and

indigenous Muslims will have to migrate as Ibn Najim said in Al-

Ashbah wa An-Naza’ir: “The ruling for the one who converted to Islam

in a house of war but did not migrate is the same as the ruling of the one

who fights the Muslims.” Since there is no place on earth that can

accept them, the fatwa to leave the “house of war” is tantamount to a

fatwa to do the impossible.

b. The wealth, the blood and the honor of the people of the house of war

are fair game. This is also true to the wealth, blood and honor of the

Muslims who live in a house of war according to Al-Jassas Al-Hanafi

who said in Ahkam Al-Qur’an (2/297) “The value of the blood for the

one living in a house of war after his conversion to Islam is worthless

unless he migrates to us”

c. The marriage contract is invalidated if one of the spouses migrates to a

“house of war” according to the author of Al-Hidayah (2/347)

d. These rules can bring out explosive feelings from many of the youth

who did not get the opportunity to learn Islam from wise scholars. It

would increase the fires of enmity to anything coming from the West

and may lead to disasters that are more severe than the case of a young

man who is looking for a job in a store that sells alcohol and pork.

e. The fiqh councils in Europe, North America and India are of the opinion

that these countries represent a house of treaty and invitation to Islam

for the Muslim minority. They are not a house of war nor are they a

house of Islam. It is more appropriate to arrive at this wise position that

matches the character of gratitude for those who did well to us. Sh.

Yusuf Al-Qaradawi said in the introduction of the proceedings of the

European Council for Iftaa and Research: “Is it allowed to issue fatawa

that would drive Muslims to steal the money from these countries that

accepted them, provided them with food when they were hungry and

protected them from danger? Doing this would make them flee from

paying the price of what they consume, refuse to give the salaries for

those who work for them, lie to get financial aid that they do not

deserve and betray those who deal with them. To allow such behavior is

a shame for Islam.

f. Those who live in the West become increasingly convinced that it is the

understanding concerning the rights to the Muslims. There are many

examples to attest to that. What could any unbiased observer say about

the British system that refused the Zionist pressures to arrest Sh.

Qaradawi and his companions when the Mayor of London hosted them

with the members of the European Council? There was a campaign

against the Sheikh and his companions. The Mayor of London stood

against this campaign and welcomed them in the same hall in which he

refused to welcome the American President Bush. The British

government refused to succumb to this campaign against us in July

2004. Another example is when the Swedish government defended the

Swedish Muslims from Somali origins who were arrested by the US

government. In the US, there are some Americans who volunteered to

protect the mosques, Islamic schools and Islamic organizations against

the stupid acts of the ignorant people. Shall we tell them, then, that

they are a people of war and that their country is a house of war?

Isn’t it more appropriate to arrive at a different concept, put forward by Dr.

Taha Al-Alwani, that divides the nations to a nation of acceptance (that

accepted our religion) and a nation of invitation to Islam (where we are

obliged to present Islam to its people)?1

g. I call every Muslim living in the West to deal with the country he lives

in according to this Quranic and prophetic principle that is based on

three concepts:

i. Our duty towards the land, which belongs to Allah: Allah has

made it an obligation for us to build upon it. Building, not

destroying, is the obligation of the Muslim with regards to the

miracle of the earth. Allah says: “He brought you into being

from the earth, and made you dwell in it,”2

ii. Our duty towards the people, who live in our country of

residence: We are religiously obliged to call to Allah with

wisdom and good preaching and to argue in the best manner.

This duty was made obligatory ten years before the obligation of

Salah, fifteen years before the obligation of fasting and Zakah,

and eighteen years before the obligation of Hajj. This duty

entails the opening of channels for communication, building up

a mutual feeling of trust, encouraging discussions, working

together for the good, and protecting one another from evil.

iii. Our duty towards the governments: If they may have some

positive aspects, they are to be encouraged and aided They may

also have some negative aspects, in which case we should exert

all the legal means at our disposal to prevent, to reform and to

present our advice as citizens and reformers and not as radical

strangers.

I find in the example of the prophet Ibrahim as a model when he was so occupied by asking for respite to the people of Lutso that they would be reformed that he did not respond to the good tidings of begetting a son. I find the prophet Yu>suf as another model in using his experience and honesty to serve the non-Muslim society that raised him well. I also find an excellent example in the patience of the Prophet (PBUH) when he refused to allow the angel of mountains to bring down two mountains on the people of Mecca and he supplicated for guidance to them by saying: “O Allah guide my people as they do not know.” At the moment of victory and dominance, he said to the people of Mecca: “Go! You are free.” I also find a good example in Salah Ad-Din Al-Ayyubi who forgave the crusaders resulting in that some of them accepted Islam and that others returned back to teach Europe about the high moral qualities of Islam and the Muslims as reported by the German orientalist Zagrad Honkah in her book “God is not

like that.”

Allowing working with and trading in illegal things outside the lands of Islam is based on evidences that are either weak in their chain of narration or in their meanings. I feel that it is important to lean towards the opinion of the majority of the Muslim scholars that because of the general implications of the texts of the Quran and the Sunnah, the principles and the morals of Islam do not change. One such example is what At-Tirmidhi reported with his chain of narration that Abu Dharr said that the Prophet (PBUH) told him: “Have taqwa of Allah wherever you are, follow up the sin with a good deed to erase it, and deal with people in a good manner.”1

Al-Qurt}ubi reported that a man asked Ibn ‘Abba>s: “From the booties of the war, we take the chicken and the sheep from the people of the book and we say that there is no problem to do so.” Ibn ‘Abbas> said: “This is what the people of the book said: “There is not upon us in the matter of the unlearned people any way (to reproach).”2 The whole verse teaches us that to allow something with a group of people and prohibit it with others contains a lie against Allah. It says: “And among the followers of the Book there are some such that if you entrust one (of them) with a heap of wealth, he shall pay it back to you; and among them there are some such that if you entrust one (of them) with a dinar he shall not pay it back to you except so long as you remain firm in demanding it; this is because they say: There is not upon us in the matter of the unlearned people any way (to reproach); and they tell a lie against Allah while they know.”3 The following verse directs us to the obligation of the fulfillment of the covenant and the treaty and to be honest and have taqwa: “Yea, whoever fulfills his promise and guards (against evil) then surely Allah loves those who guard (against evil).”4

This is a general discussion.

Now we discuss with some details the chain of narration and the meaning of the specific evidences that were provided in the fatwa.

The first evidence

Sheikh Dr. Ali Gomaa based his fatwa that allows working in stores that sell alcohol and pork on the mursal h}adith that was narrated by Makh}u>l that the Prophet (PBUH) said: “No usury between the Muslims and the people of the war in a house of war.” As usual, the Sheikh was accurate and honest in his mentioning the comment of Ibn Qudamah about this hadith: “It is mursal and we do not know about its authenticity”

The truth is that there is a weakness in the chain of narration of this mursal hadith and there is also a disturbance in the meaning.

1. Ash-Shafi‘i said that it is not authentic and it cannot be used as evidence.2

2. It is mentioned in Al-Mabsut by As-Sarkhasi: “This is a mursal hadith. Makhul

is trustworthy. The mursal from his likes is to be accepted.”

3. Al-Hafiz Ibn Hajar said in Ad-Dirayah (4/158): “I did not find it.” Az-Zayla‘i

said: “It is strange. It does not have a reference.”

4. An-Nawawi said in Al-Majmu>‘ (9/392): “The hadith is mursal and weak. There is no evidence in it.”

As for the meaning:

1. There is a disturbance in the narration as there are some variations “There is no usury between the Muslim and the people of war in the house of war”, “There is no usury between the people of Islam” and “There is no usury between the

Muslims.”

2. Ibn Qudamah in Al-Mughni and An-Nawawi in Al-Majmu‘ pointed out that the

meaning could be a command to prohibit usury between the Muslims and

others, if the hadith is correct. It is an acceptable explanation. They have taken

as evidence the saying of Allah: “(Let there be) no obscenity, nor wickedness,

nor wrangling in the Hajj.”1

3. We cannot find any authentic hadith that includes the phrase “house of war”.

This confirms the weakness of the hadith and the unacceptability of using it as

evidence.

4. If we assume the acceptance of the mursal ahadith from Makhul, then it is more appropriate to understand the hadith in accordance with the rest of the Islamic texts that prohibit usury as Ibn Qudamah and An-Nawawi said.

5. It is a fundamental principle according to the Hanafi scholars that the general

rule is not to be constrained by an uncertain evidence even if this evidence is

correct with respect to the chain of narration. Accordingly, they take the verse

of Allah “Eat not of (meats) on which Allah’s name hath not been pronounced:

That would be impiety”2 as general and they do not constrain it with the ha} dit> h

that is narrated by Bukhari with his chain of narration that ‘A’ishah reported

that a group of people said to the Prophet (PBUH): “Some people bring us meat

and we do not know whether they have mentioned Allah’s Name or not on

slaughtering the animal.” He said, “Mention Allah’s Name on it and eat.”

Despite this authentic hadith and others, the Hanafi scholars did not accept to

constrain the general rule with these narrations. Then how can the generality of

the verses that prohibit usury be constrained such that the usury is made

permissible when dealing with the people of the book because of a weak mursal

hadith?

6. Our professor Sheikh Al-Qaradawi said in his book “How to deal with the

Sunnah” (p. 47) that there are some scholars who do not accept the weak

ahadith even in targhib (the encouragement to do good), tarhib (the frightening

from doing evil), raqa’iq (what softens the heart), and zuhd (the renouncement

of the worldly glitter). Among them are Muslim, Bukhari, Yah}ya Ibn Ma‘in,

Ibn Hazm Az-Zahiri, Al-Qadi Ibn ‘Arabi, Abu Shamah from the Shafi‘i

scholars. From the contemporary scholars, Sheikh Ahmad Shaker and Sheikh

Muhammad Nasir Al-Albani have the same opinion with regards to the weak

ahadith. Sheikh Al-Qaradawi reported that Ibn Taymiyah said: “The weak

ahadith cannot be used to prove a rule that recommends an action because any

Islamic rule cannot be proven except by an Islamic evidence. Otherwise, it

would be similar to ordaining what Allah did not allow.”

If this disagreement is in the weak ahadith with respect to Al-fada’il (extra

recommended acts) and al-mawa‘iz (the preaching words), how can the weak ahadith challenge clear texts that prohibit usury? How can the weak ahadith present an exception to the prohibition of usury with non-Muslims?

The second evidence:

Sheikh Ali Gom‘a also mentioned as proof that when the prophet PBUH evacuated the Jews of Banu Qaynuqa‘, they told him that they were indebted. He told them to accept a discounted immediate payment and to write off the debt. When he evacuated Banu An-Nadir, they told him they had claims on people. He told them write off the debt or accept a discounted immediate payment. This kind of dealing is considered usury for Muslims according to Sheikh Gom‘a.

Concerning the chain of narration

This hadith about Bani An-Nadir was narrated by Al-Hakim in Al-Mustadrak as

number (2325), by Al-Bayhaqi as (10920), and by Ad-Darqut}ni as (190). The hadith about Bani Qaynuqa>‘ was narrated by Al-Waqidi. In all these versions, one of the persons in the chain, Muslim Ibn Khalid Al-Zinji is weak as mentioned by Adh-Dhahaby. Moreover, Ad-Darqut}ni mentioned in his comment on hadith number (193) that Muslim Ibn Khalid was weak, had a bad memory and was indefinite regarding that hadith. Therefore, it is not correct to use his narration as proof similar to what was mentioned about the previous hadith.

If the hadith were true, one could have the following interpretations:

a) Usury was not yet prohibited at that time

b) What is more probable is that this type of transaction is not usury. There is no

agreement between the scholars that this kind of dealing is considered usury. In the Fiqh Encyclopedia, it was mentioned that in case of paying a debt before its due time in return of lowering its value, the majority of the scholars of the four madhdhahib prohibit it because lowering the value of dept for the sake of time is analogous to raising its value upon delay in payment. However, Ibn ‘Abba>s opined that it is acceptable. This was also the opinion of An-Nakh‘i and Abu Thawr because the creditor took some of his money and left some of it and this would be a kind of write off which is allowed. It is a kind of write-off that is analogous to that which is done by a wife when she gives up to her husband her right in some of her dowry1.

It can also be considered as Hatitah, a term mentioned by Prof. Dr. Salah al-Sawi in his answer to the same Fatwa2. He also mentioned that the Fiqhi Council in the Organization of the Islamic Conference is of the opinion that the reduction of a deferred debt for the sake of instant repayment whether this is done upon the request of the debtor or the creditor is Islamically permitted and is not regarded as a form of the prohibited usury. I do not understand how our Sheikh neglected this other opinion and determined definitely in his fatwa that accepting an immediate discounted payment in return of writing off the debt is usury by saying: “It is known that this kind of dealing between Muslims is a kind of usury and is therefore false” and that is in order to strengthen the madhhab of the Hanafi scholars that allows usury with the non-Muslims. Now, if the hadith is weak and its meaning has this interpretation then it could not be used as evidence.

The third evidence:

Sheikh ‘Ali Gom‘a mentioned that the H{anafi scholars concluded from what was said by Ibn ‘Abbas and others that the Prophet (PBUH) said in his Farewell Sermon: “all usury which was before Islam is cancelled and the first one to be cancelled is that of Al-‘Abbas Ibn ‘Abdil-Muttalib”. The Sheikh’s argument is that Al-‘Abbas turned to Islam in Badr when he was taken as prisoner of war and the prophet PBUH did not deny him of usury with the people of Mecca. He considered this to be a proof that usury is permitted with the people of war as Mecca was fighting the prophet PBUH at that time.

With regard to the chain:

This hadith is authentic (sahih}) from the chain point of view as it was narrated by

Muslim with his chain of Ibn ‘Abbas and others that the prophet (PBUH) said in his farewell speech: “all the usury in the pre-Islamic period is cancelled and the first usury I cancel is that of Al-‘Abbass Ibn ‘Abdil-Mutttalib; all of it is cancelled.”

2) With regard to the meaning:

The meaning of the hadith does not allow usury with people of war. In fact Dr. Nazih Hammad has analyzed this argument and others in his book “The rules of usury between Muslims and non-Muslims” (p. 28-31). His most important points of argument were as follows:

(a) The prohibition of usury was not decisive until the verses of Surat Al-

Baqarah (278-279) were revealed “O ye who believe! Fear Allah, and give

up what remains of your demand for usury, if ye are indeed believers. If ye

do it not, take notice of war from Allah and His Messenger. But if ye turn

back, ye shall have your capital sums: Deal not unjustly, and ye shall not be

dealt with unjustly.” The revelation was in the year 9 H.

(b) There is no pretext for the Hanafi scholars to allow taking usury in the

house of war as Mecca was not a house of war. It was liberated in the year

8 H and the Farewell pilgrimage was at the end of year 9 H.

(c) There was no evidence at all that Al-‘Abbas continued taking usury after he

accepted Islam. It is possible that the announcement made by the prophet

PBUH that his uncle cancelled all previous usury was to give an

encouraging example for people to follow.

(d) If we suppose that Al-‘Abbas knew that usury was prohibited and continued

to take it after his being a Muslim, this may be because of his having a

special permission to disguise his turning to Islam. In that case, taking usury

would be a sign that he was a polytheist so that people would not discover

his conversion to Islam.

Accordingly, the evidence of the Hanafi scholars has a major weakness and is not free from enfeebling factors which makes the fatwa of Sheikh Ali Gom‘a liable to a strong opposition.

There were two other points given by Sheikh Ali Gom‘a as proof used by the Hanafi scholars. The first point is the permission of the prophet (PBUH) for Abu Bakr to bet the polytheists that the Romans would be victorious over the Persians. The second point is that the Prophet (PBUH) bet Ruka>nah that he would beat him and eventually took his sheep.

In fact, Sheikh Salah al-Sawi has already given a sufficient answer to

these points in his fatwa. I will mention here two possibilities:

1. These events may have happened before the prohibition of usury, especially as the incident of Abu Bakr was before the migration.

2. There are accounts mentioned in Sharh Al-Siyar Al-Kabir and in the exegesis of Ibn Kathir that the Prophet (PBUH) ordered Abu Bakr to donate what he had

won from his bet as alms and that he himself returned to Ruka>nah his sheep and did not take any of it. If that was permitted, he would not have given it away or order to give it away.

In any case all of this does not rise to the level of the plain texts which directly prohibit the selling of alcohol and other forbidden items. An example of these clear texts is what was narrated by Bukhari and Muslim with their chains of narration that Jaber Ibn ‘Abdullah reported that the Prophet (PBUH) said “Allah has forbidden the selling of alcohol, dead animals, swines and idols.” The Agreed-Upon hadith has the highest degree of authenticity. In case of contradiction, it should be faced with a hadith of the same degree of authenticity as is known in the ways of outweighing in case of contradiction in the Fundamentals of Jurisprudence. If there is a contradiction between

two texts equal in authenticity, it is preferred to get a meaning that would include both ahadith. What we mentioned above is an example where it is preferred to combine an authentic hadith with a mursal one.

Fourth: A call and a request for Sheikh Dr. ‘Ali Gom‘a

I earnestly appeal to you in the name of Allah the Almighty who has placed you in this status (”and He has taught you what you did not know, and Allah’s grace on you is very great”2) that you give this dangerous fatwa a second thought and I ask you to restate it so that it would be understood from the right point of view. With the purpose of strengthening the agreement and the ties between the scholars of the East and West, I hope for the following:

1) The coordination and the consultation with the boards of fatwa and research in

Europe, America, India, Japan and Australia in the issues that reach you from

these countries. We all know your many travels in these countries. But still one

must admit that “the people of Mecca know its ways better”.

2) We may allow for a Muslim to work in a place under necessity until he finds

another job. At the same time we must cooperate together against the spread

of alcohol, usury, gambling and selling pork and to stop them from decaying the

bones of the Muslims in the West. The majority of these Muslims are not

among those who visit the mosques and their children are most probably

indulged in sinfulness. As for those upon whom Allow has bestowed his mercy,

they need fatawa that encourage them to continue in opening shops that do not

deal in anything prohibited.

Praise to Allah, there is quite a number of devoted Muslims who reside in Europe and America who do not sell but what is halaland they are still able to make good profit. I know some of them as living examples for the honest god-serving merchants. One word from you would stimulate the eagerness of the merchants to be liberated from being part of the usury system and to be most cautious to preserve their honor from dealing with what Allah has directly forbidden to be used, sold or bought. Even selling grapes to someone, who is known by the seller to turn it into wine is forbidden and this meets the agreement of all the scholars of the Ummah past and present.

3) All statistics of crime in Europe and America and other places confirm that the

rate of murder and aggression, alcoholic driving, and adultery is mostly caused

by drunkenness. It is the duty of the Muslims in the west to influence in

limiting and then forbidding alcohol by law as it was legislated in America in

1920s but was permitted again under the pressures of the merchants and the

addicts.

4) Hundreds of thousands of owners of big or small shops who are trying to get rid of selling what is forbidden to save their and their children’s lives on earth and

in the hereafter will find in this fatwa a great pretext to continue following the

saying “let the scholar carry the burden and sleep peacefully”

5) The greater effect would be on non-Muslims who are liable to listen to the true

voice of Islam. This fatwa will send the message that they are considered house

of war, which would broaden the gap between them and the Muslims.

Moreover, some of the enthusiastic youth may take this fatwa as an excuse for

committing crimes like adultery and raping in the societies where they live.

They would say that there is no difference between adultery, usury, alcohol,

etc., which would lead to great violence, the extent of which cannot be

predicted and which would have an affect all over the world.

It is more appropriate, based on the aforementioned discussion, that you revise this fatwa and provide more explanation similar to the advice given by ‘Umar to his judge Abu Musa Al-Ash‘ary: “Do not let a judgment that you once made prevent you from going back on it if you find the truth in a contradictory judgment. The truth is everlasting and it is more appropriate to reconsider the whole thing rather than to stubbornly proceed…”1

Lastly, only Allah knows how high your status is in my heart and in the hearts of many of your brothers. I did not write to you as an opponent but as an assistant and advisor. My hope is that Allah would grant us all his guidance to the truth.

Allah is greater and

He knows best.

Your brother

Dr. Salah Soltan

President of the American Center of Islamic Research

Member of Fiqh Councils in North America, Europe and India

3 Muharram 1427 H

2 February 2006

Translated on 21 February 2006

May Allah give us tawfiq and insaf