One of the biggest problems facing religion today is modern relevance. For many people of faith, this means coming to terms with reforming their religion to fit modern times by dismissing or “re-interpreting” scripture. The beauty of Islam among religions is in its universality, its compatibility with science, and its versatile legal tradition which remains relevant across times and cultures.

Modernity between Acceptance of Reality and Rejectionism

For the Muslim, the correct attitude is not to resist or reject modernity, rather embrace it with our divine law. Unfortunately, some “conservative” Muslims fear modernity for one reason or another, thus detracting from their relevance. This way of thinking alienates many educated, reasonable Muslims, because they have to live in reality and Islam seems to be at odds with it.

We have ample means of accommodating modernity embedded in the Qur’an, the Sunnah and our vast, rich, 14-century legacy of jurisprudence. So for us, it is not a matter of reform per se, rather that of revivalist research of scriptural interpretation. The Islamic orthodoxy of law is quite vast and versatile. There are two issues that have hindered the proper manifestation of this versatility: closing of the doors of ijtihad (deriving new rulings from legal principles) for centuries, and a huge decline in the general quality of education in the Muslim world in the last two centuries. These two issues have led to some scholars blindly following certain, fixed schools of thought, and in turn to the subjugation of religious values to popular culture; thus our current dilemma/dichotomy.

Female Role in Society

One of the issues of modernity is female leadership. So you have the culture and its supporting fatwas from the Muslim world that women are not to be leaders outside of motherhood. You have a general consensus that women can be scholars and preach Islam, but only to other women, lest they corrupt the men with their sex appeal! In the west, Muslims are divided three ways over the issue of female leadership.

1. Since immigrants are still the major stakeholders in the Mosques, most mosques have not had a female board member, executive director (Amirah) and have never had a woman scholar or preacher speak to the community.
2. Some movements have started to make women Imams, leading prayers and giving Friday sermons to mixed gatherings. This has no traction in mainstream mosques due to the lack of precedent in the history of Islamic Law.
3. Some Mosques are empowering sisters as female board members and executive directors, and inviting female preachers to speak to mixed gatherings. They are reviving some historical precedents of Islamic Law to achieve relevance in dealing with modernity.

Women Scholars Preaching Islam to Mixed Gatherings

The subject I would like to tackle now, with divine providence, is having female scholars who advise and preach to both men and women. Naturally, some people will object, saying it is un-Islamic to have a woman speak to a mixed crowd, counsel or give fatwa to men. The same people would not object to a male scholar counseling a woman, outside of seclusion of course! To give them the benefit of the doubt, they have never seen or heard of this in the Muslim community. Here lies the power of culture in defining our traditions. The resolution of such issues should not be determined by what we see people doing, rather by what Islam says about the matter.

So the question is, what does Islam say about having women scholars, preachers and teachers who address both men and women?

The Holy Qur’an tells us:

“The believing men and women are patrons of each other. They command to good, rebuke evil, establish prayers, give alms, obeying God and His messenger. They will have God’s mercy. Indeed God is Mighty and Wise.” (Qur’an, 9:71)

This verse, like many others, puts men and women on equal footing regarding the practice of religion. It is especially significant regarding our question, because its linguistics equates men and women working together in preaching.

Umar sums up the drastic change to Arabia regarding women

“.كنا في الجاهلية لا نعد للنساء شيئا حتى أنزل الله فيهن ما أنزل وقسم لهن ما قسم،” و في رواية: “فلما جاء الإسلام وذكرهن الله، رأينا لهن بذلك علينا حقا”

 “Back in the days of ignorance before Islam, we didn’t consider women of much significance at all. This all changed with the emergence of Islam in which God mentioned them with respect and gave them new rights then we realized their rights over us.” (Sahih al-Bukhari, 5843)

Aisha – The Founding Mother Scholar, Judge and Orator

There are many texts which unquestionably show that Aisha was a huge precedent for female scholarship. Trained for 9 years in the house of the Prophet ﷺ, Abu Musa al-Ash’ari the great scholar of the companions is reported to have said about her:

“.ما أُشكل علَينا أصحابُ محمَّدٍ صلَّى اللهُ عليْهِ وسلَّمَ حَديثٌ قطُّ ، فسأَلنا عائشةَ ، إلَّا وجَدنا عِندها منه عِلمًا”

“Sometimes we the companions of Muhammad ﷺ would get confused about Islamic teachings. We would then go and ask Aisha about itand we found she always had the knowledge we were seeking in it.” (Jami` at-Tirmidhi, 3883)

It was also authentically transmitted by al-Zubair bin al-Awam, the great companion who was of the six nominated by Umar to decide among them the Caliph after him:

ما رأيت أحدا من الناس اعلم بالقرآن ولا بفريضة ولا بحلال ولا بحرام ولا بشعر ولا بحديث العرب ولا بنسب من عائشة رضي الله عنها

“I never saw anyone more knowledgeable of the Qur’an, Islamic Law, poetry, Arab history and lineages than Aisha radi
Allahu
`anha
 (may God be pleased with her).” (Al-Hakim, 4/11)

In his masterpiece on the biographies of the greatest prominent Muslims of our past, Imam al-Dhahabi relates that the famous scholar and general of the tabi’in (the generation of Muslims who were born after the death of the Prophet ﷺbut who were contemporaries of His companions) in Iraq, Al-Ahnaf bin Qays, said:

سمعت خطبة أبي بكر الصديق وعمر بن الخطاب وعثمان بن عفان وعلي بن أبي طالب والخلفاء من بعدهم فما سمعت الكلام من في مخلوق أحسن ولا أفخم من في عائشة

“I heard the sermons of Abu Bakr, Umar, Uthman, Ali and the Caliphs after them and yet I never heard speech from the mouth of anyone better or more eloquent than from Aisha.” (Siyar al-A’lam al-Nubalaa)

This should close the case, but some might say that Aisha was an exception. Well, she was in fact unique, since she was the greatest woman scholar among the companions, and greater than the top handful of men as well. That being said, as the mother of the believers, she naturally became a standard of excellence and an example to be followed by other women.

In his famous work Al-Isabah fee Tamyeez as-Sahabah, Imam ibn Hajar al-Asqalani reports on 1543 women scholars of Islamic Law, Hadith and Arabic literature!

As for teaching, the great granddaughter of the Prophet ﷺ Nafeesah bint al-Hasan was reported to have lectured to the masses in the Prophet’s mosque as well as in Cairo. It is also well-documented that scholars like Ibn Taymiyyah, Ibn Hajar, Ibn al-Jawzi and Imam al-Thahabi were all taught by female scholars.

For those of you who are still not convinced that it is acceptable for a sister to assert herself,

Imam Al-Haythami relates a story about the woman Umar put in charge of the policing of the marketplace of Madinah. Yahya bin Abi Saleem said:

رأيْتُ سَمْرَاءَ بنتَ نُهَيْكٍ وكانَتْ قد أَدْرَكَتِ النبيَّ صلَّى اللهُ عليهِ وسلَّمَ عليْها دِرْعٌ غَلِيظٌ وخِمارٌ غَلِيظٌ ؛ بيدِهِا سَوْطٌ تُؤَدِّبُ الناسَ ، وتَأْمُرُ بالمعروفِ وتَنْهَى عَنِ المنكرِ

“I saw Samraa bint Nuhayk, who met the Prophet ﷺ, wearing a rough Hijab with chainmail and a whip in her hand. She would discipline the people commanding to good and rebuking evil.” (Majma’ al-Zawa’id 9/267)

The majority of our scholars throughout history have said that there is nothing wrong with listening to a woman’s speech unless it is flirtatious or provocative. Both men and women were prohibited from (prolonged) looking at an attractive person. To say a woman clergy member cannot speak in front of men because some men may find her attractive is the same as prohibiting women from listening to a male Imam, since women have desires as well, and were equally rebuked from looking where there is attraction.

Just because the Muslims have strayed from the scholarly tradition of old and have become used to certain ways of dealing does not mean that our traditional sources of law do not support a different way of doing things more suitable for the reality we live in today.

It is of the utmost importance that we not judge Islam by the state of Muslims today. Our religion is much bigger and better than that. There were many great generations who were not only relevant but standard setters for civilization in general wherever they were.

There are many causes and struggles going on here in the US right now. Our religion is completely capable of addressing and solving the world’s problems. We are obligated to create a generation that has the right tools to bring moral balance to issues like feminism, economy, racism, class warfare, political corruption, oppression or anything else related to morality or ethics.

Rarely is the English language graced with a major contemporary scholar engaging a range of current concerns. Hence this work will be eagerly received in many quarters of the English-speaking world. Their anticipation is justifiable, as the work will tackle a variety of topics, including theology, law, customs and spirituality. In the end, it should be viewed simply as an introductory volume, and we can hope for a future volume on more pressing life challenges facing Muslims in the English-speaking world.

Regrettably, Responding from the Tradition gives no background as to how and where the hundred questions answered in the volume were asked. One does not know if they have simply been selected from a wider pool, and if so, upon what criteria they were chosen; or whether Shaykh Gomaa himself decided upon these specific answers for publication in one volume. Such a detail could have been very helpful, especially if we were told that Shaykh Gomaa himself selected these questions, because it would have informed us about what he considered priorities for the English-speaking audience.

From the perspective of theology, the work is Sunni-orthodox, despite being published by a publishing house known for propagating perennial philosophy. The answer to question 1 affirms the orthodox message of Islam being “the final religion sent from God to humanity…and intended for people of every race and geographic location.” Furthermore, the answer to question 2 adds: “God willed Islam to be the seal of all religions in the realm of law, and for it to be the only religion in the realm of belief.”

The general Sunnism of the above is made more specific in answer 33 where Gomaa states that “the orthodox school of Sunni Islam” includes “both the Ash’ari and Maturidi schools.” Defensively, he adds,

“those who criticize these schools are ignorant of their tenets of belief in God. Misunderstandings mostly have to do with the ‘possessive attributes of God’ or what are technically referred to as ‘reported attributes.’”

Moreover, Gomaa distinguishes between early and later Ash’ari theologians. He identifies early Ash’aris as accepting the “possessive phrases and reported attributes used by the Quran in reference to God as they are, without believing in the literal meanings of their linguistic expression.” In contrast, he notes, “the later Ash’ari theologians took the approach of interpretation because they thought that affirming attributes in an ambiguous manner led some to anthropomorphic beliefs and all that they necessitate.” In a final comment, Gomaa effectively concludes the controversy surrounding the attributes of God by approvingly quoting a non-Ash’ari-Maturidi, Ibn Qudama al-Maqdisi in his Lum’a al-I’tiqad, as “perhaps the best commentary”; the latter states

“one is obliged to believe in and accept without reservation all that has come in the Quran or has been soundly narrated by the Messenger of God (s) [may the peace and blessings of God be upon him] concerning the attributes of the most Merciful One. One should refrain from rejecting them, indulging in their interpretation, or drawing comparisons and the likenesses between God and His creation.”

One is left to wonder how far Gomaa would take a revisionist stance to late Ash’ari theology in favour of an earlier minimalist version. For instance, would he also prefer not to engage in specifically defining the contrast between the actual speech of God (kalam nafsi) and the revealed Books of God (kalam lafzi)? Would he just stop at saying that the Qur’an is the Word of God or simply the uncreated Word of God? A comprehensive minimalism of the scholastic schools could be more effective for a modern age, eschewing many past and contemporary polemics, of which the answer to this latter question is a consequence.

The legal method of the work is helpfully explained at the beginning by Gomaa himself, under the title of “The Craft of Issuing a Fatwa.” Centrally, he sees the mufti’s job in this age to be one of making “things easy for people by bringing them into God’s religion, protecting them, and providing a means whereby they can act in accordance with a position that is acknowledged by the Shari’ah.” Gomaa notes the mufti should, when responding to a question, first consult the Qur’an, then the Sunnah if not in the Qur’an, then analogy if not in the Sunnah, and should “not breach consensus.” Furthermore, “the protocol established by the schools of jurisprudence allows the mufti to issue fatwas following any of the mujtahid schools, so long as his own ijtihad does not lead him to believe the truth lies elsewhere.” He explains that the Dar al-Ifta’ al-Misriyyah (the Egyptian House of Legal Judgements) transmits the four Sunni schools (Hanafi, Maliki, Shafi’i and Hanbali), as well as the schools followed by many non-Sunnis (such as the Ja’fari, Zaydi, Ibadi and Zahiri), and even

“widens the scope of the evidence upon which it relies to include the schools of major mujtahids like al-Awza’i, al-Tabari, al-Layth ibn Sa’d, and others from among over eighty mujtahids throughout Muslim history. These schools’ opinions are taken into account and may even be given priority of consideration according to the strength of their evidence, the need for their perspective, the purpose of the greater good, or in order to fulfil the goals of the Shari’ah. This methodology reflects the values adopted by all scholarly societies today, in both the East and the West and throughout the Muslim world.”

In light of such comments, it is not surprising that Gomaa doesn’t show a madhhab bias from a strict ideological stance.

One of the highest points in the legal answers is his response to whether the inheritance laws of Islamic law are oppressive of women (question 9). This answer is so important because there is really very little knowledge, never mind defence, of the inheritance rules in English. His answer is very detailed and its summary is that there are

“…thirty scenarios in which a woman inherits either the same amount as a man or more than him. In some cases she inherits while her male equivalent does not inherit at all. There are only four scenarios, however, in which a woman inherits half the share of a man.”

It is the general failure to know such thirty-four possible scenarios, whilst also being unable to recall that Islamic law has been laid-down by God for all people for all times in all societies (and not one’s personal family and whims), that leads to many modern misgivings. What drove home the importance of this detailed fatwa by Gomaa was the recollection of a BBC series on inheritance, entitled “Can’t Take it With You.” Now one of the series had a Muslim couple from England who wanted to write a will that complied with Islamic and English legal requirements; but they were taken aback when told that the Qur’an stipulated that their daughters were entitled to half of the share that their son was due. Sadly, the programme did not introduce an answer like Gomaa’s, which shows a great understanding of the Sacred Law, as well as fiqh al-waqi’ (comprehension of the social realities). Firstly, the Sacred Law understanding is stronger with Gomaa here because his answer agrees with the Qur’an and the scholars of Islam. Secondly, he highlights the reality of why a brother in such a scenario would be entitled to more than his sister:

“When a group of inheritors, such as the children of the deceased, are equal in the first two aforementioned factors [of degree of kinship to the deceased and generation to which the heir belongs], then their shares are affected by the third [of financial responsibility]. In this specific scenario the misunderstood Quranic verses alluded to in the original question come into play. The Quran has not made the disparity between men and women a general condition, but rather has confined it to this specific situation. When the individuals in a group of heirs are equal in both their relation to the deceased and their age, the male son of the deceased receives twice as much as the female daughter of the deceased. The wisdom behind this arrangement is as follows: the male is responsible for the financial upkeep of his wife and children, whereas his sister’s financial upkeep is the responsibility of an individual other than herself, such as her husband or father. Thus, for all practical purposes, the disparity favours the woman because the wealth she inherits is not applicable to the household expenses and hers is to dispense with as she pleases. This financial advantage also protects her from any circumstances that would place her in financial difficulty. Unfortunately, few today understand this finer point of the Muslim inheritance system.”

Gomaa adds that a man also has financial responsibility to “provide a dowry for his spouse,” which “is an obligation that falls on men, not women”; and “men are also required to financially support the members of their extended family if the situation demands.” This answer truly shows the now clichéd context with the text, without having to alter the ruling. Indeed, Gomaa points out our general superficiality by highlighting that

“…wealth is a broader concept than income. Income becomes part of wealth but is not wealth itself, since wealth is that which remains after all expenditure. In the scenarios where a woman receives half of the man’s inheritance, the woman’s new income is protected by the Shari’ah and is hers to dispense with as she wishes. The man’s new income, on the other hand, is to aid him in supporting family members that have now come under his care. This is why we are able to say that Islamic inheritance laws protect the wealth of women and grant preference to them over men.”

We are helpfully reminded by this answer that Gomaa’s first degree, as mentioned in the translators’ introduction, was in commerce from ‘Ayn Shams University, so he has, hopefully, a full understanding of economic consequences necessary for the question, together with his extensive legal training at al-Azhar University.

Nonetheless, economic and legal training is not political training, and two answers of a political nature in the collection might cause concern for some. The first is the answer to question 23 where he uses the legal understanding of Abu Hanifah and Shaybani to permit Muslims living in bilad ghayr al-Muslimin (non-Muslim lands) – for he prefers to call the latter such, as opposed to dar al-kufr (the abode of disbelief) or dar al-harb (the abode of war), because “the situation, however, has changed” and Muslims are not now prevented from residing in such lands and, he says, “there is no open declaration of war against Islam and the Muslims” – to give and take usury (riba) and other transactions that would be invalid in Muslim lands, such as selling meat that has not been slaughtered in accordance with Islamic law, and to sell pork or alcohol, or to engage in gambling. [This fatwa was discussed on virtualmosque.com previously; see here.] Gomaa’s understanding of Abu Hanifah and Shaybani’s stances is understood as correct, as reported by Taqi ‘Uthmani (in Contemporary Fatawa), ‘Abdullah Bin Bayyah (in the CD series entitled “Sacred Law in Secular Lands: A Survival Guide for Muslims in the West, volume 1” trans. Hamza Yusuf), and Muhammad Hamid (as cited in Reliance of the Traveller, trans. Nuh Keller).

Now ‘Uthmani, Bin Bayyah and Hamid concentrate on why they prefer the stance of those that opposed Abu Hanifah’s allowing Muslims to act differently in dar al-harb to how they are obliged to act in Muslim lands. ‘Uthmani appeals to the “overwhelming majority” who opposed such a stance, while Hamid appeals tentatively to the opposing view of Shafi’i and Abu Yusuf which “is not a feeble viewpoint unsupported by evidence.” Bin Bayyah argues that terms like dar al-harb and dar al-Islam, etc. are not “textual”, i.e. from the Qur’an and hadith (narration), and that the world should be re-evaluated because the modern world has changed so much (for another source for Bin Bayyah’s views, see here); and this accords with Gomaa’s understanding in the answer, as well. As H.A. Hellyer mentions in his Muslims of Europe: the ‘Other’ Europeans, Bin Bayyah prefers to call the west dar al-aman (the abode of trust). Indeed, as explained above initially, Gomaa himself disavows the use of the term dar al-harb in the modern context, but is satisfied to apply a ruling formulated in relation to that currently non-existent state of affairs.

Now, what none of the aforementioned scholars do is address whether Abu Hanifah’s actual ruling would remain in the modern context, according to his own criteria. This is the single argument that would prove the death knell to those who want to uphold the position on the basis that the west is still dar al-harb in Abu Hanifah’s understanding. [I will focus on Abu Hanifah’s position because Shaybani’s view, as discussed below, has potentially more far-reaching consequences, with the whole world perhaps being viewed as dar al-harb.] The editor of ‘Uthmani’s Contemporary Fatawa, Muhammad Shoaib Omar – whom ‘Uthmani praises in the foreword as his “learned brother” who added “explanatory footnotes which elucidate certain answers,” and to which he is “grateful” – tentatively raises the problem in the footnote to ‘Uthmani opposing the permissibility of usury in the west based on Abu Hanifah’s understanding:

“Muslims living as minorities in non-Muslim countries enjoy constitutional rights and protections, within a secular state in common with other citizens. Their status appears to be different from Darul-Harb, literally a state of ongoing military conflict between Darul-Islam and Darul-Harb. There is a need to properly define Darul-Harb in the context of the modern state to determine whether Imam Abu Hanifah’s view [italics in the original, not mine – AB] has any application at all.”

The study called for by Omar was addressed, in large part, by another Azhari, Ahmed Mohsen al-Dawoody, in his Ph.D dissertation (2009) at the University of Birmingham, England, entitled “War in Islamic Law: Justification and Regulations” (subsequently published by Palgrave as The Islamic Law of War: Justifications and Regulations). Al-Dawoody notes that Shaybani considered dar al-Islam to be a place where “Islamic law is applied”; but that Abu Hanifah thought that “dar al-Islam is a territory in which Islamic law is applied and Muslims and ahl al-dhimma (non-Muslim citizens of the dar al-Islam) are safe.” Jasser Auda, in a paper entitled “How much of a ‘Land of Islam’ is Today’s Europe? A Study in the Classic Jurisprudence,” quotes Abu Hanifah from Kasani’s Bada’i al-Sana’i:  “The purpose (maqsud)[sic] of calling a certain land a ‘Land of Islam’ or a ‘land of disbelief (kufr)’ is not Islam versus kufr. It is security versus insecurity.”

Bin Bayyah, in “Sacred Law in Secular Lands”, said that the Hanafis, including Sarakhsi and Kasani, said that dar al-Islam is wherever the Muslims have “amn”, or “safety, well-being or security.” Shahrul Hussain, another graduate of al-Azhar, in his Dār al-Islām and Dār al-Ĥarb: An Analytical Study of its Historical Inception, its Definition by the Classical Scholars and its Application to the Contemporary World, quotes the relevant section from Sarakhsi on dar al-Islam in the latter’s al-Mabsut: “A place which is under the authority or ownership of Muslims and the proof (of this) is that Muslims are safe therein.” Al-Dawoody adds, while seizing upon this notion of “safety”:

“In other words, it [namely, dar al-harb] is a territory in which freedom of religion does not exist and the lives of Muslims and dhimmis are not safe. Thus, the classifications of dār al-harb and dār al-Islām refer to the existence or non-existence of safety and peace, specifically the freedom of Muslims to apply and practice Islamic law. It is worth adding here that calling a territory dār al-harb “did not mean actual fighting”, but it clearly indicated a potential state of hostility, enmity or war in cases when territories did not belong to the dār al-Islām and did not have a peace treaty or alliance with it, and specifically if Islamic law could not be applied, Muslims were not safe to profess their belief in Islam and perform prayer, and the lives of the Muslims and dhimmis were imperilled…

“According to [Wahbah] al-Zuhaylī [in his Āthār al-Harb fī al-Islām], the majority of jurists, including Abū Hanifah, did not accept the third conceptual division of the dār al-sulh [the abode of agreement], arguing that, if a territory concludes a peace treaty and pays tax to the dār al-Islām, it becomes a part of the dār al-Islām and thus the dār al-Islām is obliged to protect it…

“Present-day non-Muslim countries would thus be classified as dār al-Islām according to Abū Hanīfah’s definition, since Muslims living there are safe, while in the opinion of other Hanafī jurists, al-Shaybānī and Abū Yūsuf, non-Muslim, as well as most Muslim, countries nowadays would be dār al-harb because some parts of Islamic law are not applied there.”

These scholarly attempts to try and actually understand what Abu Hanifah understood about dar al-harb presents enough material to call into question the idea that he would have upheld his peculiar ruling in question here. Even if one could say that the element of a non-Muslim signatory to a peace treaty with Muslim countries agreeing to pay taxes to the Muslim state is missing, hence calling into question whether he would have called the west dar al-Islam, the other conditions certainly raise doubts about whether he would have held today’s geo-political reality to identically reflect his understanding of his own time. Moreover, one must also question whether Shaybani would have held the same views on the matter. The subject has by no means been categorically finalised, but there are sufficient reasons to question a minority position that has potentially dire consequences if followed in the west.

To take a purely western view on the matter of permitting the taking and giving of usury, buying and selling alcohol and gambling, a mufti from the east should be very careful before giving such a fatwa to us in the west. This is especially the case when our inner city areas, filled with Muslims, are succumbing to the evils and crimes of those who consume alcohol (even as a consequence of Muslims selling the alcohol to them from their shops, as is the case with so many Arab-owned liquor stores in the inner cities of the USA), as well as succumbing themselves directly to the problems of accepting interest-based loans that they cannot maintain repayment of, or even gambling themselves into financial and mental oblivion as they become addicted to gambling and the dire consequences that result thereof to themselves and those closely around them. Moreover, in selling alcohol in the inner cities, how are Muslims going to appear like upright callers to a noble and pristine Islam when they are helping the human degradation complained about by Gil Scott-Heron in his song entitled “The Bottle”? In rejecting such a fatwa, we in the west might not only be able to reject it on the basis that the majority of Islamic jurists, past and present, have rejected it, or that one might be able to argue that even Abu Hanifah and Shaybani might have changed their positions if they lived in our time – as Gomaa says in “The Craft of Issuing a Fatwa”: “fatwas differ according to their specific time, place, people, and conditions” with regards to non-definitive matters that never change – but, rather, we in the west can reject the fatwa on the basis that it realistically holds great danger for us, especially those of us struggling with the already difficult realities of living in the inner cities of the west; and we really do not need Muslims contributing to this problem by making use (or misuse?) of such fatwas.

The second political fatwa that would raise eyebrows is in response to question 16 and the modern applicability of the corporal punishments of Islam (hudud). Gomaa says that these,

“have not been implemented in countries such as Egypt for over one thousand years. This is because the legal conditions for their implementation, which describe specific means for establishing guilt and stipulate the possibility of retracting a confession, are not met…The penal codes of the remainder of the Islamic countries, which number fifty-six out of the one hundred ninety-six countries of the world, remain silent on the issue of corporal punishment (hudud). This is because our age is one of general uncertainty (shubha), and the Prophet [s] [may the peace and blessings of God be upon him] said, ‘Stay the enforcement of corporal punishments when there is doubt.’ Furthermore, the legally accepted witnesses needed to convict offenders in capital cases necessitating corporal punishment have not existed for a long time. Al-Tanuki relates in his book Mishwar al-Muhadara, ‘A judge used to enter a district or a village and find forty witnesses of the sort of whom we are satisfied as to their being just and accurate, while today a judge enters a town and only finds one or two witnesses.’ Thus our age could be generally described as one in which there are no witnesses.”

One wonders at such a fatwa, not only in its grand historical presentation, but that it seemingly equates most of the Muslim world – with its great cities, such as Gomaa’s own Cairo, with their thousands of praying and dutiful believers, and hundreds of righteous scholars – with some rural “district” or “village.” The fatwa is certainly a secularist’s dream. Surprisingly for a leading Islamic scholar, Gomaa’s answer bespeaks of a certain resignation to the current situation, without seeking to remedy the situation which he admits neglects to follow certain Quranic stipulations. It is this seeming apathy and resignation that raises the most surprise. Now, with the greatest of respect, we are reminded by the Arab Spring that scholars – including Gomaa, as compassionately discussed here by Hisham Hellyer – are not always the most politically astute.

The translation of the book is strengthened by its being reviewed by two learned individuals trained in Islamic law, Abdullah ibn Hamid Ali and Musa Furber. Moreover, there is plenty of transliterated Arabic technical terminology in parenthesis, which are very helpful. Also, there is an interesting technique in the footnotes for the names of authors. On the whole, this technique for names is helpful and useful; for example, “Muhammad ibn Isma’il AL-BUKHARI” is first written and thereafter “AL-BUKHARI”, or “Muhmmad ibn ‘Abdullah AL-HAKIM” is thereafter followed by “AL-HAKIM.” In the overwhelming number of cases, the emphasis given to identify the most popular understanding of a name is correct. However, a number of examples indicate a misleading emphasis: for example, “Muslim ibn Hajjaj AL-NAYSABURI” followed by “AL-NAYSABURI” thereafter when it should be “MUSLIM”; and the worst one is “Malik ibn ANIS” who is thereafter written as “ANIS”, which is a double blow to Imam Malik, because his father was called Anas and he was known as Malik, not Ibn Anas or Anas or Anis (sic). There are other examples of this type in relation to Abu Dawud (“AL-SIJISTANI”), Ibn Hibban (“AL-TAMIMI”) and Ibn Abi Shaybah (“AL-KUFI”), so, although infrequent, the reader should be on guard.

In conclusion, this is a worthy and welcome addition in English, with plenty of worthwhile scholarly discussion from Gomaa himself and from some of the greatest scholars of Islamic history, from across the various great schools. Nevertheless, the work is a warning to Muslim minorities in the west that they are to treat Islamic scholarship with caution, even if it comes from the best that Islamic scholarship has to offer at present. This puts a great onus on western Muslims to commit to studying the Islamic sciences, even if they don’t become fully-fledged scholars, but to become sufficiently informed so that they can coherently follow an Islamic scholarly argument, and have a certain limited level of selecting opinions that have the best scholarly strength and benefit (a sort of limited tarjih). Of course, we acknowledge that it is knowledge from the east that has enlightened our hearts, but the light from that region is multi-faceted, so we must be cautious against selecting only one beautiful beam to the exclusion of all others; and, at the same time, we must pray against being colour blind: thinking we truly see things, when we don’t see things as they are at all. Nonetheless, in the west, we are still in dire need of expert scholarship that seeks to empower the audience, and not one that seeks to bully through recourse to narrow authority. Finally, this work is a welcome addition to the English library, and we pray that more publishing houses have a similar goal of producing legal works from experts in the English language. To God is our reliance and to Him we declare our poverty.

Abul Hasan Ali Nadwi, in From the Depth of the Heart in America, noted that “Islam is more sensitive than any other faith . . . Its limits are marked out very clearly.” This sentiment has remained true until our day, even in western universities that teach Islam. Despite the modern attack on religion, in general, and Christianity, in particular, whereby they are made to be nebulous and far from structured (especially away from traditional articulations), there is still a meaning to “Islam”; hence an author or university is forced to still conform to certain parameters when defining the religion, in spite of the academic habit of sub-division which has made certain prefixes to “Islam” seem more acceptable, such as “conservative,” “liberal,” “progressive,” “fundamentalist,” “political,” or “classical.” The normative way of defining Islam, even whilst acknowledging these recent trends and descriptions, is to uphold those scholarly authorities that gained academic and social acceptance amongst the traditional Muslim societies. Therefore this article will present a Sunni understanding of the question of Islam’s finality, which is for people to accept or reject, whether through a Sunni discourse or a heterodox one.

Like Muhammad Legenhausen, in his essay entitled “Islam and Religious Pluralism,” it is important to note that the discussion of Islam’s finality, or “correct faith” (in Legenhausen’s words), is a distinct topic to the notion of salvation. The idea of salvation has some more details, and it is not my subject matter here. [Those seeking interesting reads on the question of Islam and salvation, in particular regarding the Other, the following English resources will be of interest: Mohammed Hassan Khalil’s PhD entitled “Muslim Scholarly Discussions on Salvation and the Fate of ‘Others’” (University of Michigan, 2007), Tim Winter’s essay entitled “The Last Trump Card: Islam and the Supersession of Other Faiths”; and Mohammed Fadel’s essay entitled ‘“No Salvation Outside Islam: Muslim Modernists, Democratic Politics, and Islamic Theological Exclusivism,’ to be included in the forthcoming Islam, Salvation and the Faith of Others (ed. Mohammed Hassan Khalil).]

Perennial philosophy will be touched upon, in essence, due to its challenge to the orthodox understanding of Islam’s finality; and due to its patient attempt to clandestinely establish itself within the orthodox community, despite opposing a belief that is considered so foundational and absolute to Muslims. Moreover, it has a tone that is very much in accord with a modern sentiment towards religion, hence it is highly seductive; therefore it is of interest to discuss its arguments in light of an orthodox discourse. The perennialists have laid claim to a Sufi lineage, but most of the greatest Sufis of all time have explicitly rejected their claims about Islam, most notably – as we shall see – from arguably the Sufi with the greatest standing in Islamic history, Abu Hamid Ghazzali. [A good historical overview of perennial philosophy can be gained from Mark Sedgwick’s Against the Modern World: Traditionalism and the Secret Intellectual History of the Twentieth Century.]

In an age where celebrity and show business are often given more value than rational argument and non-partisanship, I’ve decided to omit, on occasions, certain contemporary western names in the course of the discussion. This is in the hope of not presenting any distraction that might obscure any argument, where preoccupation with a person takes the place of seeing the point at hand. In this regard, it is apt to quote the saying attributed to ‘Ali radi Allahu ‘anhu (may God be pleased with him) in Ghazzali’s al-Munqidh min al-dalal: “Don’t know the truth by men; rather, know the truth, then you shall know its people.” Ghazzali says that the state extolled by ‘Ali is the way of the intelligent (al-‘aqil) and explains the virtue of this path, which is partisanship to the truth, not to personalities. May God make us of the wise people; success is only from God.

Defining Islam

Scott Lucas, in his PhD entitled “The Arts of Hadith Compilation and Criticism: A Study of the Emergence of Sunnism in the Third/Ninth Century” (University of Chicago, 2002), asserts: “most Muslim and non-Muslim scholars consider Sunnism to be the normative manifestation of Islam.”  In opposition to Lucas (and his faithfulness to Marshall Hodgson on this point), it is appropriate to view Sunnism as the “orthodoxy” of Islam, for a number of reasons: the fact that Sunnism characterises the overwhelming majority of Muslims over the course of Islamic history, and this  status quo has been maintained to our current time; and, consequently, one sees the great past and modern institutions of Islam in the Muslim lands adhering to a broad Sunni method, with its agreements upon the fundamentals and universally-agreed matters of the faith. It is, therefore, perfectly understandable that writings on Islam respect the parameters of broad Sunnism.

In practice, one naturally sees the utilisation of scholars and works that are recognised by all aspiring-Sunni groups, despite perhaps disagreeing with subsidiary points of law or theology. Thus one sees Shariah-orientated Sufis and salafis, to take two generally Sunni groups from almost polar opposites of Sunnism (although there are self-professed salafis and so-called Sufis who cross, or stray close to, the boundaries of orthodoxy, either in isolated matters or in essential points), relying on the Qur’anic exegesis found in the works of Tabari, or the hadith collections of Bukhari and Muslim and their respective commentaries by Ibn Hajar and Nawawi, or the theological work of Abu Ja’far Tahawi, or utilising and discussing the points of law raised by the Hanafi, Maliki, Shafi’i, and Hanbali schools, to take some essential examples. In terms of jurisprudential foundations, the science of usul al-fiqh has well defined parameters in Sunnism, and disagreements that are tolerated within Sunnism.

Therefore the discussion of Islam is best served, from academic and social points of view, through the scholarship of Sunnism. Hence the question of perennial philosophy’s position in regards to Islam will be tested within a Sunni framework. Heterodox readings of the Islamic faith are open to those who view Islam’s authenticity as being defined by such traditions; but, in truth, such minority attempts have never succeeded the test of time, and they tend to be relegated to the footnotes of history, while Sunnism continues to be the story of the Muslim people. In this light, it was not considered necessary to speak of any adjective before Islam due to the orthodoxy of Sunnism; whereas any heterodox reading of the faith should be bound to either qualify itself or use a completely separate name for itself, depending on the severity of the intellectual break with Sunnism.

Notwithstanding this identification of Islam or designation of something as Islamic in terms of orthodoxy or Sunnism, Ghazzali in Fada’ih al-Batiniyya has elucidated how every contravention of orthodoxy need not result in the denial of the religion or disbelief (kufr). Ghazzali discusses how being mistaken (takhti’a) in certain branches (furu’) of the religion can ascend, in seriousness, to misguidance (tafdil), to being considered a sinner (tafsiq) and the accusation of unlawful innovation (tabdi’); and then the final level of deviation whereby the contravention of Islam requires that the perpetrator be accused of disbelief (takfir or anathematization).

In order to show how Ghazzali distinguishes between tafdil, tafsiq and tabdi’ on the one hand, and takfir on the other, he illustrates the example of someone who believes that ‘Ali should have been the Caliph before Abu Bakr, ‘Umar and ‘Uthman (ra). Such a heterodox position, Ghazzali acknowledges, is a contravention of “the consensus of the people of the religion” (ijma’ ahl al-din), but such a contravention does not render one a non-Muslim, but merely means that one is a Muslim who unlawfully innovates. A Ghazzalian understanding of what constitutes an act requiring takfir will be explored later.

The Proofs and Unanimity of Islam’s Finality 

There are numerous verses of the Qur’an that Islamic orthodoxy has used as a basis for establishing that Islam is God’s final religion, and the only valid one in this age after the coming of the Final Messenger Muhammad (may the peace and blessings of God be upon him):

This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion (5:3).

And whoever desires other than Islam as religion – never will it be accepted from him, and he, in the Hereafter, will be among the losers (3:85).

In order to clarify the above verses, in light of some contemporary discussions about whether the “Islam” mentioned is “islam” with a small “i”, i.e. literally the “submission to God” regardless of the religious form, as opposed to the historical Islam of the Messenger Muhammad ﷺ  (peace be upon him), the following verse is noteworthy:

Indeed, they who disbelieved among the People of the Scripture and the polytheists will be in the fire of Hell, abiding eternally therein. Those are the worst of creatures (98:6).

Ghazzali sums up the orthodox creed in his Ihya’: God sent the Prophet ﷺ  to the whole world with His message (bi-risalatihi ila kafa al-‘arab wa’l-‘ajam); and through the Islamic Sacred Law abrogated the previous Sacred Laws, except for what Islam confirmed; and He has denied the perfection of faith (mana’a kamal al-iman) to one who declares God’s Unity but fails to attest to the Prophet being the Messenger of Allah.

The Sunni schools of Islamic law – Hanafi (Ibn ‘Abidin), Maliki (Dardir) and Hanbali (Bahuti) – concur with the following statement from Nawawi of the Shafi’i school:

Someone who does not believe that whoever follows another religion besides Islam [today] is an unbeliever (such as Christians), or doubts that such a person is an unbeliever, or considers their sect to be valid, is himself an unbeliever (kafir) even if he manifests Islam and believes in it (Rawda al-talibin, 10.70). [Trans. N Keller ]

Ghazzali, in al-Iqtisad fi’l-I’tiqad, represents the “Sunni consensus” on the question at hand:

“The Jews, Christians, and the followers of all the religions, whether Zoroastrians, idol-worshippers or others, are all to be considered unbelievers [kafir] as is specified in the Koran and agreed upon [ijma’] by the Muslim community [umma].” [trans. Winter, “Last Thrump.”]

[For a contemporary declaration of Islam’s finality in light of challenges to the orthodox position, which have even reached the Muslim lands, one can read the appendix entitled “Unification of Religions” that Abu ‘Aaliyah added to his translation of Muhammad ibn Saalih al-‘Uthaymeen entitled Tenets of Faith. The appendix is the legal verdict (fatwa) of the Council of Senior Scholars of the Kingdom of Saudi Arabia.]

Mistake #1: “There is only one right answer for every issue.”

Differences of opinion among scholars are a natural and inevitable part of Islamic jurisprudence.  We discussed a number of reasons for these differences in some of the earlier posts in this series.  In Pt. III we mentioned that many of the texts of the Qur’an and hadith are worded in a way that leaves room for more than one legitimate interpretation. We also noted that there are a number of sources from which legal rulings are derived, which scholars may consider and weigh differently in formulating their opinions.  Finally, in Pt. V, we described how scholars may differ in their assessment of a specific situation and the context in which it takes place, and as a result differ in what they believe is the most suitable application of Islamic teachings in a given scenario.

While some people may claim that scholarly differences of opinion are caused solely by human error, or certain scholars’ lack of familiarity with the texts, the factors that we have previously discussed belie this misconception.  It is clear that there are many legitimate means by which scholars can come to different answers on the same issue.

With the exception of a small minority of scholars—including, in more recent times, Sh. Albaani¹—the vast majority of scholars throughout history have considered such differences a mercy and a blessing.  An assembly of scholars in Mecca headed by Sh. Bin Baaz described the wisdom of such differences in the following way:

“… The differences that exist among the juristic schools over some issues, caused by academic reasons, [have a] great divine wisdom behind their existence: [they] are a form of God’s mercy for His servants, and they serve to expand the methods by which rulings may be derived from the sacred texts.  Furthermore, these differences are a blessing, and a juristic treasure that provide room for the Muslim community in its religious and legal affairs, such that it is not restricted to a single opinion when faced with a particular legal issue without any alternatives.  Instead, if at any time, or for any issue, the opinion of a particular scholar² becomes difficult for the Muslim community to follow, it is able to find relief, leniency, and ease in another opinion, according to (its own) legal evidences.”³

In a similar vein, the great scholar Ibn Qudama al-Maqdisi said, “Disagreement among scholars is an abundant mercy, while agreement between them is a decisive proof.”⁴

It has been related that the Prophet ﷺ said, “Difference of opinion among my community is a token of divine mercy.”⁵ Although scholars have disputed the authenticity of this report, the vast majority of them agree with the meaning that it imparts.

A General Principle for Dealing with Differences

The general axiom we should seek to follow when encountering contentious issues is that “there should be no condemnation [inkaar] in matters of ijtihad.”⁶ This principle states that in cases in which there are no clear, unequivocal directives from the Qur’an or hadith about an issue, and in which scholars use a legal process (ijtihad) to contextualize the evidences and derive rulings, one should not engage in inkaar of one or another from among their opinions.  Inkaar comes from a verb that means to rebuke, censure, renounce, or reproach.  While we may personally subscribe to a particular opinion on an issue, and feel that it is the most authentic, accurate, or the most suitable for a given situation, we should not discount the other legitimate opinions that exist.  We should respect those who follow the opinions of other scholars, and allow them the space – both in our understanding and in our physical dealings – to follow those opinions.

It is important to note that this principle is not in any way dismissing ijtihad, or the scholar’s endeavor to determine the most correct opinion on an issue, the promulgation and teaching of that opinion once it has been determined, or for a scholar to defend his or her opinion and respond to other scholars’ contentions.  This is in fact the essence of the mujtahid⁷ scholar’s task.  In short, there is no problem with a qualified scholar respectfully disagreeing with another qualified scholar, based on his or her ijtihad.  What this axiom is prohibiting is the condemnation of someone for following another legitimate scholarly opinion, particularly when done by a layperson.  The layperson may not be cognizant of certain nuances related to the issue or its evidences, that may have led to the formulation of more than one strong, legitimate scholarly opinion regarding it.  They may also be unaware of the reality of the other person’s situation and circumstances, which may make another ruling more suitable and appropriate for them in a particular case.  Unfortunately, it is when laypeople take on the mantle of the scholars, in seeking to promote certain opinions or deconstruct others—often in a harsh, hasty, or uninformed way—that discord and conflict often arises in our communities.  In many cases, a qualified scholar would seek to facilitiate and accommodate, while the layperson would seek to constrict.  This is perhaps why Imam al-Ghazali is reported to have said, “If those who do not possess knowledge avoid the scholarly discussions, disagreement would end [entirely]!”

Should All Differences of Opinion be Respected?

The above-mentioned axiom restricts the respectful consideration of differences of opinion to matters of ijtihad, and excludes those rulings that have been definitively established or explicitly and clearly stated in the texts (qat`iy).  In our times we may find people who lack the requisite level of knowledge and training in Islamic law attempting to promote ideas that contradict these well-established rulings.  They may call on the spirit of broadmindedness that Islamic scholarship has generally embodied throughout history to encourage acceptance and tolerance of these claims.  However, in so doing, they fail to realize that scholars have made a clear distinction between the type of differing of opinion that is acceptable and respected, and that which is blameworthy and to be rejected.

Imam Ibn Taymiyya, for example, states that there are two types of issues on which disagreement may exist.⁸ One type consists of issues that are either not addressed by the sacred texts at all, or addressed by texts that are probabilistic (dhanni) and therefore open to more than one scholarly interpretation. With respect to these issues, disagreement is to be expected, tolerated, and respected.  The second type consists of issues that are addressed by definitive, unequivocal texts of the Qur’an, hadith, or ijma’ [scholarly consensus].  Since these issues are so clearly and authoritatively addressed by sacred law, they must be considered beyond the scope of intellectual exertion and varying interpretations, and differences regarding them must be rejected and condemned.

Shaykh Hamza Yusuf also describes this dichotomy in his introduction to The Creed of Imam al-Tahawi:

“Our differences are not the real problem; our failure to distinguish between our casual and core differences is the problem.  Differences in Islam fall into two categories: those that result from capaciousness of divinely designed diversity, and those that are factitious and eventuate in a transgression of the divine limits of acceptable differences, leading to strife and religious discord. The second is a punishment and a sign of an arrogant humanity that chooses caprice over guidance. Our Prophet ﷺ said, ‘No people abandon a guidance that they were upon with being given disputation in its place.’ And Imam Malik said, ‘Argumentation hardens the heart and engenders resentment.’”⁹

The differences that are to be respected are those that fall within the bounds delineated by the Lawgiver.  They give a level of flexibility to religious practice, and allow Islam to be a viable way of life in different contexts, all while respecting Islam’s core teachings, ethics, and principles.  Blameworthy differences are those that go beyond these bounds, and encroach on the values and teachings of Islam that are not open to a range of interpretations.  These differences are the ones that usually cause serious conflict, strife, confusion and misguidance in our community.

Conclusion

On a range of issues in Islamic law, we find that more than one answer is considered acceptable or valid.  This is an evident sign of Allah’s mercy and compassion, as is the reward He has promised for the mujtahid scholar, even the one who errs in his or her ruling.  Legitimate differences of opinion should never be a cause for division, hostility or hatred in our relationships with others.  We should consider such differences from the light of the expansiveness and generosity of Allah’s law, instead of deeming them contemptible problems that must be eradicated.  We should also be informed about what types of opinions go beyond acceptable boundaries, and the means of clarifying and addressing them properly.  Intelligent assessment and study of these issues is critical for sound religious practice as well as a healthy discourse in our communities.

May Allah Most High bless us with the best of manners, making us generous, kind, and fair with others, composed and calm in our discussions, and sincere in our efforts to better ourselves and then to teach and inform those around us.  Ameen.

Conclusion to the Series

As this series comes to an end, we ask Allah Most High to accept it from us and forgive us our mistakes and shortcomings.  May He make this series of articles a means by which people learn more about His religion, gain insight into the beauty and intricacy of its sacred law, and feel motivated and inspired to learn more.

A text in at-Tabarani states that the Prophet Muhammad ﷺ said: “You are living in a time that has many fuqaha (jurists; people who understand religion) and your lecturers and preachers are few.  You live in a time in which those who give are many, and those who ask are few.  And you also live in a time when action is preferable to knowledge.  But there is coming a time upon this community in which the preachers will be many, but those who understand the religion will be few.  Those who ask will be many, and those who give will be few.  And in those days, knowledge will be better than action.”¹⁰

For Further Study and Reading in the Subject of Usul al-Fiqh:

• Sacred Law in Secular Lands, Volume 1 & 2 (CD Set), by Sh. Abdallah Bin Bayyah, with live translation by Sh. Hamza Yusuf, Alhambra Productions.
• Principles of Islamic Jurisprudence by Muhammad Hashim Kamali, Islamic Texts Society.
• The Distinguished Jurist’s Primer by Imran Ahsan Khan Nyazee (translation of Bidayatul Mujtahid by Ibn Rushd), Garnet Publishing.

Mistake #2: “The rules of Shari`ah should be constant and unchanging.”

On the opposite end of the spectrum of what was discussed in Part IV of this series are those who believe that the Shari`ah is a completely static and fixed entity.  Such people may scorn the idea of rulings of Shari`ah changing from one circumstance to another as ‘watering down Islam,’ or ‘changing Allah’s religion to please people.’  In a desire to protect religious practice from the whims of the lower self or from adulteration by modern-day trends, they may insist on applying the rulings of Shari`ah in the exact way they were articulated and practiced in the time of the early generations of Muslims, or the era of certain classical scholars and their students.  What is often overlooked here is that in one’s zeal to shield one’s religious practice from inappropriate change, one may actually be closing the doors on changes that the Shari`ah does in fact condone.  In lumping together all the rulings of Islamic law into one monolithic category – that of being fixed, independent of context, and the same through varying times and places – one is making Shari`ah overly rigid, in a way that is not faithful to its inherently balanced nature.  In this article we will discuss some of the means by which rulings of Shari`ah can legitimately change, seek to differentiate between rulings which are affected by contextual factors and those that are not, and clarify some misconceptions related to these points.

The Role of Culture and Custom in Shari`ah

Scholars of Usul distinguish between two types of rulings when considering whether cultural factors play a legitimate role in their development.  The first type are those rulings of Shari`ah that are constant, such as acts of worship, like prayer and the rites of Hajj, as well as commands and prohibitions that are clear and well-established by texts (al-m`alumu min ad-deeni bidarura), such as the obligation of mutual consent in contracts, the prohibition of the consumption of alcohol, a husband’s financial obligation to his wife, the obligation of hijab, and so on.¹ Matters of culture, custom, or factors related to time and place have no influence on the establishment of these rulings and they remain unvarying across history and geography.

The other type of rulings are those that, by their nature, must take into account the normative practices or customs of the people who are seeking to apply them.  An example of this can been seen in the rulings related to statements of divorce.  Whether a statement would be considered an overt expression of divorce (sareeh) or one that is ambiguous and connotes more than one meaning (kinaya) would depend on the customary usage of certain expressions and phrases in the language of a people.  Similarly, muru’ah, or the condition of uprightness necessary for the acceptance of one’s testimony, is determined in different ways in different places.  A man entering a public setting with his head uncovered would be a sign of immodesty and a lack of muru’ah in many traditional Eastern cultures, while in other places this would not be the case.  A third example can be seen in the command for believers to interact with others with ma`ruf, in a manner of goodness and excellence.  The exact actions one would commit and the particular words one may say to be considered behaving with ma`ruf would obviously vary, depending on the respective culture and situation.  These are all examples of rulings that are related to custom, and what is intended by the axiom that, “Common practices or customs of a people can be used as a legislative source for rulings.” (al-`aadatu muhakkamah).²

What is important to note here is that the Lawgiver, Allah the Exalted, has linked some rulings to context and situation (manat), and that this naturally leads to different manifestations of these rulings in different scenarios.  This does not mean, as some may presume, that one is deviating from the law itself, since these varying configurations are within the legitimate breadth of the original command or prohibition in question.  In the same way we find water a legitimate means of purification in some cases, and dust a legitimate means in others (in tayammum³), each depending on the circumstance, so too we find rulings applied in different ways according to context, while still maintaining the underlying directives intended.

In the examples mentioned above, we see that the underlying rules or directives of Shari`ah are not in any way challenged or altered.  The legal consequences of explicit and implicit statements of divorce remain the same.  The condition of muru’ah for a witness’s testimony remains intact, and the command for acting with ma`ruf remains constant.  However, it is in consideration of the relevant culture that a scholar assesses the situation and determines how these rulings can accurately be applied.

The Role of Maslaha in Shari`ah

A second means by which rulings may be subject to change or new rulings may be established is related to the concept of maslaha, or consideration of public interest.  Scholars may seek to establish a ruling with the objective of securing the well-being of a people, either by promoting some benefit for them or protecting them from some type of harm.

This method of legislation is limited to matters of ijtihad⁴, and excludes devotional matters (`ibadat) and issues that have been definitively established by authentic texts (qat`iyat).  Establishing this type of ruling also has certain conditions.  It must be in line with the objectives of the Lawgiver, have a realistic probability of bringing about the benefit intended to the general population, and be corroborated in some way by a definitive text or scholarly consensus.⁵ Some scholars, particularly of the Maliki and Hanbali schools, state that such a ruling would have proper grounds for legislation even if no indication about it exists in Shari`ah, as long as it does not conflict with any of the Shari`ah’s established values and principles.⁶ This is because the texts we have available to us are limited and fixed in number, while the varying and evolving situations of people are virtually limitless.

We find examples of this consideration of maslaha in the practice of even the earliest generations of Muslims, including the companions of the Prophet ﷺ.  Abu Bakr (may Allah be pleased with him) authorized the compilation of the Quran into one volume during his rule – something that was not done in the time of the Prophet ﷺ – after concern for its preservation intensified with the death of many of those who had memorized it.  Umar (may Allah be pleased with him) suspended the prescribed punishment for theft in a year of famine out of consideration for those who may have felt compelled to steal out of duress.  He intensified the punishment for drinking alcohol when many of the companions became concerned about its widespread acceptance, due to the influence of Persian culture.  He also ruled that three statements of divorce in one sitting would count as three separate divorces, in order to lay emphasis on the seriousness of such pronouncements.⁷ These were unprecedented rulings that were not seen in the earlier rule of Abu Bakr or the time of the Prophet.⁸ Uthman (may Allah be pleased with him) ruled that if a husband irrevocably divorced his wife on his deathbed with the intent of barring her from inheritance, she would still be granted her rightful share of the inheritance.  Ali (may Allah be pleased with him) would hold craftsmen and traders responsible for the loss of goods that were placed in their custody, in order to ensure greater care in safeguarding others’ property.⁹ A later example can be seen in the issue of accepting financial compensation for teaching Quran or acting as an imam or muezzin.  While Imam Abu Hanifa and his students Abu Yusuf and Shaybani prohibited people from doing so, later Hanafi scholars allowed it as a means to help preserve the Quran, and because such people were no longer provided for from the treasury of the Islamic state.¹⁰ When the circumstances changed, we find that the ruling changed as well.

From these points we can see that even in the earliest generations of Muslims, scholars had an interest in and sensitivity to the current trends and issues that were affecting their communities, and would issue their rulings in consideration of them.  The task of the scholar was not only to accurately derive rulings from textual sources, but to determine the best method of their application in a given situation, community, and culture, that would bring about the most benefit and minimize harm.  Such a task required sound knowledge not only of sacred texts, but also of context.

The Dilemma of Importing Fatwas

In light of the above, we can see why dependence on fatwas from abroad or from ages-old texts could, in some cases, be quite problematic.  A thorough understanding of the normative culture of a people is very important, particularly in matters of marriage, divorce, and other social issues.  While rulings on matters of ritual purification, prayer, fasting, and so on may be independent of context and therefore legitimately gleaned from qualified scholars in any locality or from any time period, this is not the case for many matters that we find pressing in our communities and families.  It is for this reason that the development of an indigenous scholarship in our times, that has a strong grounding the Islamic sciences as well as a deep and nuanced understanding of the environment in which their rulings will be applied, is vital.  An Arabic expression states, “the people of Mecca are most knowledgeable about its hills and valleys” – meaning that those who are native to a land are the most familiar with it and the best able to navigate its territory.  Similarly, scholars who are indigenous to a land and are currently living in it would be most adept at addressing its people’s concerns, problems, and issues.

The Question of Minority Fiqh¹¹ (Fiqh al-Aqalliyat)

Minority fiqh, or fiqh al-aqalliyyat, has been criticized by some as a means of illegitimately changing rulings to accommodate living in a non-Muslim environment.  While the term itself is relatively new, the concept of certain religious rulings changing according to context and environment is not something novel to Islamic jurisprudence, as we have clearly shown.  Having a category in fiqh that expressly relates to the concerns, questions, needs and difficulties that Muslims face as a minority – issues that are often not found in the traditional lands of Islam – should be seen as a specialization, and not a deviation.¹²

Conclusion

A desire to preserve Islam from unwarranted or illegitimate change is certainly something noble and commendable.  However, our concerns about such changes should not cause us to cling to a rigidity in our outlook that hinders Islam from being a viable, livable tradition in our times.  We should not relegate Islamic scholarship to a simple rehashing, translation, or transposition of the work of our forebears, but should give scholars of today the space to navigate and explore new and relevant issues of our times, using the legitimate means Shari`ah has granted.  This tradition of scholarship is one that needs to be enlivened, nourished and encouraged in our communities, so that the profound beauty of sacred law can become a reality by which we live our lives.

May Allah help us to understand and practice His religion in the best, most balanced, and most beautiful of ways.  May He bless our communities with leaders and scholars who can help us to live our lives in accordance to sacred law, and in a way that is pleasing to Him.  Ameen.

Mistake #3: “All rulings change according to circumstances and context.”

Another mistake people make when considering the rules of Shari’ah (Islamic law) is assuming that they are always subject to change, especially if they seem illogical or inappropriate for one’s personal circumstances or in modern-day settings.  While some rulings are contextual and can change with time and place, others are firmly fixed, and remain constant even in varying circumstances.  This unique structure of the Shari’ah – in which certain core principles and rulings are unchanging, and others have room for flexibility – is what has allowed Islam to be a viable, vibrant tradition, applied and practiced by people across the spectrum of time, culture, and society.  This is also where the pivotal role of scholars can be seen, in terms of navigating the texts and helping people see where lines must be drawn in new and changing circumstances and environments.

While we find this beautiful balance evident in the Shari’ah, we often find laypeople moving to one extreme or the other, in seeking to make the religion overly restricted and rigid, or excessively indulgent in a manner that forsakes the texts and Islam’s foundational principles.  In this article, we will focus on addressing the idea that “all rulings of Shari’ah are relative.” (The contentions of the first party, who say the opposite, will be addressed in our next article in this series, insha’Allah.)

There are two major misconceptions related to this idea that need to be clarified.  The first is the contention that Islam is a logical religion; therefore, any ruling whose logic cannot be understood or perceived by us in a given circumstance can be altered or annulled.  An example of this line of thinking can be found in some people’s belief about the hijab.¹  Some people would argue that, from a logical standpoint, it would seem that hijab was ordained as a means of deflecting attention.  However, in today’s world, especially in the West, we find that hijab actually draws the eye and attracts people’s attention most of the time.  Consequently, they would argue, hijab should no longer be an obligation.  Since the wisdom or logical motive that we have assigned to the ruling has changed, they would assert that the ruling itself should also change.

It is true that Islam is a logical religion, which calls on us to use our minds and to worship our Lord with intelligence and knowledge.  The rules of Shari’ah we are asked to follow are not arbitrary, but form a comprehensive body of law that functions to bring benefit to human beings, as individuals and societies.  There is an underlying rationale for everything Allah decrees, prescribes for us and prohibits us from doing.  In fact, the vast majority of scholars agree that every single rule of Shari’ah either works to bring about some benefit or ward away harm.² However, it is important to note that we may not always be cognizant of the wisdom, or hikmah, behind a given ruling.  It may be that the hikmah has not been made clearly evident to us through the texts, that is beyond our comprehension or perception, or that it is something we fail to recognize in a given instance or case.

Since one’s perception of a ruling’s logic or wisdom in a given situation is, by its nature, something subjective, speculative, and in many ways limited, using it as the criterion by which rulings are accepted or rejected is clearly problematic.  We must concede that we consider things from the lens of our own experiences, background, and social and cultural realities, and therefore may, in some cases, overlook the wisdom of a certain ruling, or be limited in our ability to see its far-reaching effects and consequences.  This is what Allah Most High alludes to in the verse in the Qur’an that says, “It may be that you dislike a thing which is good for you, and that you like a thing which is bad for you. Allah knows but you do not know.” (Quran, 2:216)

We also find, particularly in matters of worship, that the wisdom behind a ruling may be subtle or somewhat difficult to discern.  Why do we pray four raka’at (units of prayer) for Isha and only two for Fajr?  Why does sighting the moon of Ramadan compel us to fast?  Why does rubbing our hands and faces with dust suffice to make us ritually pure in certain cases (in the act of tayammum³) and not other materials? In such matters there is a certain deference that is required of the believer, in realizing that there are things beyond one’s realm of understanding.  This is what Imam al-Ghazali refers to when he says,

“We believe that there is a hidden wisdom which underlies the fact that the number of rak’ahs for the dawn prayer has been set at two, for the sundown prayer three, and for the late afternoon prayer four.  That is to say, these set numbers of raka’ahs embody a form of kindness and blessing for human beings which is known to God alone.  Hence, we do not seek to understand it, rather, we content ourselves with drinking from the wellsprings He has provided.”⁴

Even Imam Ibn Qayyim al-Jawziyya, who went to great lengths in his works to identify the wisdoms behind various rulings, stated that, “There are mysteries pertaining to the rulings on the acts of worship which are known to the Lawgiver alone, and which, although they may be grasped in a general sense, cannot be comprehended in detail.”⁵

From this we can understand that simply because a ruling does not seem logical to us, or does not seem to fulfill the wisdom for which it was established in a given scenario, does not mean that it can automatically be cancelled or changed.  Taking the example that was mentioned earlier, we see that the obligation of hijab does not center around one’s perception of its wisdoms being fulfilled in a given case or not.  In actuality, its obligatory nature is based on the more objective matter of its clear legislation in the Quran, for Muslim women who have reached the age of legal accountability.  When the prerequisites are fulfilled, the obligation comes into effect, independent of whether one feels the wisdom behind it is realized in one’s present circumstances or not.  While contextual factors may come into play in the realm of iftaa (personalized rulings that take into account specific circumstances in a person’s life), they do not alter matters that are well established by clear texts (al ma`lumu min ad-deeni bid-darura).  Those rulings that can legitimately be changed by context must be assessed in an objective and impartial way by the scholars, who can make determinations with due respect to the intricacy involved in such an endeavor.  We as individuals, on the other hand, cannot presume to conjecture in this way based on our personal opinions and feelings, especially in the face of clear textual evidences.

The second misconception people often have in relation to this issue is assuming that they are somehow personally exempt from clear prohibitions or commands.  A person may concede that there is wisdom or benefit in certain guidelines of Shari’ah, but somehow find ways to excuse him or herself from actually applying them in one’s life.  One may, for example, recognize the wisdom in the prohibition of an unrelated man and woman sitting together in a private and intimate setting, but when considering one’s own personal circumstances, may find many objections to complying with these rules.  “It’s just my brother-in-law,” one may say, or “It’s too extreme to implement in my office.”  Similarly, we may hear people say, “I can be modest without wearing hijab,” or, “I remember God throughout the day, I don’t really see the need for ritualized worship.”  In a sense, one is stating that the rulings of Shari’ah are so inappropriate or unsuitable for one’s life that one cannot actually apply them.  From another perspective, one is asserting by these statements that they are somehow above the rules needed to keep the common people in line.  In either case, such statements can often be traced back to a lack of proper understanding about these matters from the Islamic perspective, and at times, may also be symptomatic of an underlying spiritual issue with arrogance.  We must remember the verse in the Qur’an in which Allah calls on us to “enter into Islam wholeheartedly” (2:208).  Faith is not a mere expression of the tongue, feeling in the heart, or conceptualization in the mind, but a reality that should manifest itself in our lives and by our limbs.  The rulings of Shari’ah were sent as a means for us to purify and better ourselves, and not merely to be dissected, intellectualized, or hypothesized over.  The most noble and spiritual of people, our beloved Prophet Muhammad, ﷺ (Allah’s peace and blessings be upon him), was subject to the Shari’ah and sought to implement it to its letter in his own life, though one could argue that his spiritual rank or intellectual station could have excused him from this.

The great scholar Ibn Qudama al Maqdisi describes people who fall into the mistake of feeling personally exempt from Shari’ah in the following way:

“(Such people) roll up and put away the carpet of the Sacred Law, rejecting its rulings and considering the unlawful and lawful to be equal, saying, ‘Allah does not need my works, so why should I bother?’  One of them may say, ‘Outward devotions have no value, only hearts mean anything.’ … They claim to have surpassed the rank of the common people, beyond the need to school the lower self with physical devotions, and that gratifying bodily lusts does not divert them from the path of Allah Most High because of their firmness therein.  They exalt themselves above the level of the prophets, upon whom be peace, who used to weep for years over a single mistake.”⁶

We all have weaknesses, and may be grappling with certain Islamic concepts or some elements of our religious practice.  However, we should not let these struggles cause us to lose a sense of humbleness and submission before Allah Most High.  In fact, Allah loves the humble, sinful servant of His more than an arrogant worshipper.  It is far better to admit that one is personally struggling with a sin, than to try to reconstruct Shari’ah in an attempt to justify one’s behavior to oneself or others.

Conclusion

In conclusion, we must recognize that part of the beauty of the Shari’ah is the constancy of its values, principles, and rulings that provide a framework for how believers should live their lives.  In an age in which most everything is considered morally relative, and ethics can be intellectualized into non-existence, these constants can be seen as an anchor that keep us from floating adrift in theory and abstractions, and from interpretations of religion that are more in line with personal desires and inclinations than with sacred truths.

“None of you will be a true believer,” The Prophet ﷺ taught, “until his inclinations and preferences [hawa] are in accordance to what I have brought.”⁷ May Allah Most High help us reach that station, and live our lives in loving obedience to His law.  Ameen.

Mistake #5: “Lack of knowledge is always a valid excuse.”

Just as Allah the Exalted is generous, tolerant, and compassionate, we find His Law marked by the qualities of generosity, tolerance and compassion.  An example of this can be seen in the exemption to legal accountability given in Shari`ah (Islamic law) for one who forgets, lacks competence, or, as is relevant to our discussion, one who is ignorant about a matter in certain instances.¹

We find many examples of this in the time of the Prophet ﷺ. He ﷺ excused the ‘man who prayed badly’ for not knowing how to pray with proper composure, and Muawiyah ibn al-Hakam for speaking deliberately during prayer because he did not know that it was prohibited.  He excused the people of Qubaa’ for praying in the direction of Jerusalem because they were unaware of its abrogation, and excused a companion for not praying when no water was available because he was unaware of the legislation of tayammum.² Another man came to the Prophet ﷺ with a gift of wine, to which the Prophet ﷺ responded, “Did you know that Allah has prohibited wine?”  When the man said no, he ﷺ did not rebuke or punish him.³ This principle is also underscored by the verse in the Qur’an in which Allah says, “…And never would We punish until We sent a messenger.” (17:15)

Some people take these texts to mean that there is a blanket exemption from accountability for anyone who happens to be unaware of Islamic rulings on a matter.  In believing this, we may fall into the trap of being ‘willfully ignorant,’ and step back from learning more about Islamic issues in an attempt to escape from responsibility.  We may feel that in learning more, we are somehow making ourselves more accountable, and that by knowing less, we can carry on just as we were before, unhindered by duties that we believe are hinged on knowledge.  Consciously or unconsciously, from Shaytan or our own selves, we may seek to use this as a loophole in Shari`ah to excuse or justify our behavior.  It is for this reason that it is important to clarify who is actually excused for not knowing their legal obligations, and for whom this excuse is not acceptable.

If someone is uninformed about a matter due to legitimate reasons, such as being new to Islam, or honestly being unable to access the information needed to understand it properly, then they are considered excused, and their mistake is overlooked.  However, if someone has the opportunity to learn about a matter and chooses not to, then their ‘willful ignorance’ is not considered an acceptable excuse, and they are therefore accountable for their actions.  This includes engaging in haram (forbidden) behavior out of ignorance, as well as performing acts of worship incorrectly or improperly.  From the perspective of Shari`ah, if a person has the capacity and opportunity to learn the law, he or she is presumed to know their legal obligations, and is judged the same as the one who actually learned them.⁴

As is well established from the famous hadith,⁵ seeking knowledge is an obligation on every Muslim.  This refers to knowledge about Allah Most High and the foundational principles of faith, rulings related to one’s personal worship – such as ritual purification, prayer, and fasting – as well as those related to mundane matters, such as food, clothing, and one’s behavior with others.  When one chooses to engage in an action, it is also a requirement to learn the Islamic rulings related to it – for example, learning the rulings on marriage and family for one intending to marry; the rules for buying and selling, business contracts and so forth, for one seeking to start a business; and the rulings of zakah for one who earns or acquires money.  Knowledge about these issues and others which are a regular part of a person’s life are considered fard `ayn, or a personal and individual obligation – meaning every Muslim, male or female, layperson or scholar, must take it upon themselves to know them.

If one is able to learn about these matters and chooses not to, or if one has people of whom to ask, but prefers to keep one’s own counsel, or if the doors to knowledge are opened, and yet one turns away – such a person is responsible for their deeds, and ignorance is in no way an acceptable excuse.

On a related point, if a person commits an action knowing it is haram but without knowing its legal consequences, the consequences of their action still come into effect.⁶ For example, if a married couple engages in intimacy in the daylight hours of Ramadan, knowing that it is haram but without knowing that it would break the fast, their fasts are still invalidated, and must be made up accordingly.  Also, if one commits an action that violates the rights of other people, whether done knowingly or unknowingly, one is responsible for restoring their rights.  So if a person steals from someone’s property, they are responsible for returning that wealth, whether they were aware of the prohibition of stealing at the time of the theft or not.  These points further emphasize the idea that a claim of ignorance does not automatically absolve one from one’s actions, and has specified rules and conditions.

An Arabic expression states, “An ignorant person does to himself and others what an enemy would do to his enemy.”

May Allah protect us from the harms of our own ignorance, and take us from its darkness into the light of understanding and knowledge.  May He make us people who worship Him with knowledge, in the best of ways, and may He grant us tafaqquh (deep understanding and comprehension) of His religion. Ameen.

*Read about the next four mistakes in the rest of this series, to be published soon, insha’Allah.

Between Absolutism and Negligence

Linguistic definition: Arabic linguists say that taqlīd is derived from the root word qalāda, which is a necklace that is fastened around the neck. From it comes the taqlīd of a road; it is as though the follower fastens the ruling around the neck of the mujtahid, like a necklace.

Technical definition: Taqlīd is what Imam Ash-Shaukani describes in Sayl Al-Jarrār as acting upon another’s words without evidence.

It is important to note that this excludes acting upon the sayings of the Prophet Muhammad ﷺ, acting upon ijmā’ (consensus), a layperson’s acting upon the fatwa of a mufti, and a judge’s consideration of the testimony of trustworthy witnesses – as their authority has already been established. The sayings of the Prophet Muhammad ﷺ and ijmā’, for those who recognize it, are both clear sources of authority. A layperson’s acting upon the statement of a mufti has been approved by ijmā’. As for the statements of trustworthy witnesses weighing on a judge’s ruling, its credibility is derived from both the Qur’an and Sunnah – from the command to take testimony – as well as from ijmā’.

Also excluded are the narrations of hadith narrators, as their processes of authentication and legitimacy are already in place. Furthermore, these are not merely the statements of the narrator, but the one narrated about, which is the Prophet Muhammad ﷺ.

A better definition is found in Ibn Al-Humam‘s Tahrīr (died 861 Hijri): “Taqlīd is acting upon the words of someone not recognized as a source of authority, without evidence.” Al-Qaffāl (died 365 Hijri) suggested, “It is accepting the statement (legal opinion) of someone while not knowing where he got it from.” Sheikh Abu Hāmid Al-Asfarayīni (died 406 Hijri) and Ustadh Abu Mansūr Abdu`l-Qāhir Al-Baghdādi (died 429 Hijri) both stated, “It is the acceptance of a legal opinion from one whose authority is not established, without evidence.”

The Ruling on Taqlīd in Following a Madhhab (Islamic juristic school)

There are three opinions on the issue of taqlīd:

1. Requiring taqlīd in following a madhhab
2. Prohibiting taqlīd and requiring ijtihād
3. Permitting taqlīd for one who has not reached the level of ijtihād

Opinion #1: The Requirement of Taqlīd in Following a Madhhab

The first opinion makes taqlīd a requirement on everyone, whether they are lay-people or accomplished scholars. It prohibits modern scholars from practicing any form or level of ijtihād. Rather, ijtihād is considered banned in theory and obsolete in practice, its doors having been closed in the third or fourth centuries, or even earlier than that.

This opinion essentially makes the taqlīd of one of the four madhāhib a religious requirement on every Muslim. Those who hold this view do not even permit modern scholars to prefer an opinion outside of their followed madhhab. Departing from one of the four popularly known madhāhib to follow other madhāhib or opinions (even if they are from the Sahaba or Tabi’īn) is absolutely unacceptable.

If those who hold this view reject choosing or preferring existing sayings and opinions over others, then they are even stronger in their rejection of independent ijtihād – even if it is only partial ijtihād on some issues. They reject it, regardless of the changing circumstances that life creates, and the ideas and ideologies that people are exposed to. All of this is built upon their conviction that the door of ijtihād is to be blocked.

Some later scholars spoke about the requirement of following one of the four madhāhib. Sheikh As-Sāwy Al-Maliki (died 1241 Hijri) who authored the famous “hashiyah” on Imam al-Dardir’s  Ash-Sharh As-Saghīr about jurisprudence, and another “hashiyah” on Tafsīr Al-Jalalayn, said:

“Taqlīd is not allowed except in (following) one of the four madhāhib, even if it agrees with a statement of the Sahaba (companions), an authentic hadith, and/or an ayah of the Qur’an, as one who is outside of the four madhāhib is misguided and misguiding others. Perhaps it would lead one to disbelief, as taking from what is apparent in the Qur’an and Sunnah is from the foundations of disbelief.”

Look at the stringency of this sheikh, who lived at the same time as Ash-Shaukani, and contemplate the disparity between their views. He banned taqlīd except within one the four madhāhib, even if an opinion agreed with a statement of the Sahaba; even worse, if it agreed with the text of an authentic Prophetic hadith; and worse still, even if it agreed with an ayah of the Holy Qur’an!

Another exaggeration is to consider one who is outside the four madhāhib (even if only in a specific case) as “misguided and misguiding others,” and that this may potentially lead to disbelief! All of this is rash and does not follow what the investigative scholars have agreed upon.

The opinion that taqlīd was required was adopted by religious schools and universities in later centuries. The salaf (first generation) from the scholars of these universities passed it down to the khalaf, who began to instill in their students, “One who makes taqlīd of an ʿālim meets Allah sālim (securely)!”

I remember learning this in Azhar’s religious high school in a class on the science of Tawhīd. In my required reading from the Jawharah of Al-Qarni and its explanation by Al-Bājuri, the author states:

“…And Malik and the rest of the Imams / Like Abu`l-Qasim, guiders of the Ummah, (said) Taqlīd is required of the learned man – one of them, / As the people relate in terms (they) understand.”

Abu`l-Qasim here refers to the great sufi, Al-Junaid ibn Muhammad (died 297 Hijri), may Allah have mercy on him. It implies that it is incumbent upon every Muslim to follow an imam from the imams of the four Islamic juristic schools.

Imam Malik is specifically mentioned because the author is Maliki. He suggests that an imam of jurisprudence is to be followed in the same manner that sufi imams are followed on issues of tarbiyah (self-development). Such was the legacy of Junaid with the scholars – the integrity of his tarīqah (method), the soundness of his direction, and his remoteness from extremism and innovation.

Some scholars also mandated the following of a well-known imam in ‘aqīdah (creed), such as Abu`l-Hasan Al-Ashʿari (died 334 Hijri) or Abu`l-Mansur Al-Maturīdi.

The most prevalent tradition amongst our knowledgeable brethren in the Maghrib (Libya, Tunisia, Algeria, Morocco, Mauritania) and the graduates of Zaytuna, Qayrawiyyin, and other institutes is to follow the Ashʿari madhhab in creed, the Maliki madhhab in jurisprudence, and the madhab or Sufi Path of Junaid in conduct. May Allah be pleased with them all.

To summarize, the integrals and potential pitfalls of this opinion include:

1. Requiring taqlīd on all people, even the people of knowledge.
2. Requiring taqlīd of only the Imams of the four madhāhib, and prohibiting the adoption of any legal ruling outside of these madhāhib.
3. Requiring taqlīd of only ONE of these four imams. Thus, not allowing mobility from one of these four madhāhib to another one of these four, even if only in a few matters where the weakness of the madhhab’s position is apparent.
4. Calling for blocking the door of ijtihād, and standing up against any call for ijtihād, even if only partial.
5. Viewing one’s own madhhab as better than the others, and succumbing to an ethnocentric mind frame.

Many scholars have responded to this outlook on taqlīd, including ibn Abdu`l-Barr, Ibn Hazm, Ibn Taymiyya, Ibn Al-Qayyim, As-San’āni, Ash-Shaukani, Al-Dahlawi, and others.

Opinion#2: The Prohibition of Taqlīd and the Requirement of Ijtihād

The second opinion is the exact opposite of the first: prohibiting taqlīd and requiring ijtihād for all people. Those who hold this position obligate every Muslim to take their legal rulings directly from the Qur’an and Sunnah. They fiercely reject the following of the four madhāhib, and even attack those that propagate that view vehemently. Perhaps some of them are excessive in their attack of taqlīd since they bash the madhāhib themselves, and some even extend their slander to the founders of the madhāhib as well.

Historically, the most powerful proponent of this view, from what we know, was the famous Thāhiri jurist, Abu Muhammad ibn Hazm. He authored many books, including Al-Ihkam fi Usūl Al-Ahkām on the foundational principles of jurisprudence, Al-Muhalla on comparative jurisprudence, and Al-Fasl fi`l-Milal wa`n-Nihal on the history of religions and sects, and others.

A great scholar from later times, Imam Ash-Shaukani, helped promote this understanding in many of his books, including Irshad Al-Fuhūl, As-Sayl Al-Jarār, and in his risalah, Al-Qawl Al-Mufīd fi`l-Ijtihād wat-Taqlīd. He emphatically rejected taqlīd, although less fiercely than Ibn Hazm.

In our times, a group from the people of hadith champion this perspective, with Sheikh Muhammad Nāsiruddin Al-Albāni and his followers at the forefront.

The adversaries of those who follow this viewpoint have named them “Al-Lā Madhhabbiyīn” or those with no madhhab, because they reject adopting any madhhab – neither for the scholar nor for the layman Muslim. These adversaries have responded with a plethora of articles and books. Examples include the great Turkish scholar Sheikh Muhammad Zāhid Al-Kawthari’s article, “Al-Lā Madhhabiyyah Qentara illa al-Lā Dīniyyah,” and those by the great Hamawi scholar, Sheikh Muhammad Al-Hāmid, as well as Dr. Muhammad Sa’īd Ramadan Al-Buti’s book, Al-Lā Madhhabiyyah Akhtar Bid’ah Tahaddat Ash-Shari`ah Al-Islamiyyah.

Once again, we can summarize the integrals and pitfalls of this other extreme to include:

1. The prohibition of taqlīd on everyone, even the laypeople who do not have access to the tools of ijtihād.
2. The plethora of claims by young people (who have become superficial and rough) that they have reached the level of mujtahidīn.
3. The audacity of young people to dismiss great scholars and mujtahidīn from previous eras.
4. The disdain for the Ummah’s juristic schools, despite the immense amount of beneficial knowledge they contain.
5. The transgression of some followers in bashing the madhāhib and their Imams.
6. The growth of the tendency towards literalism amongst them, to the point that some have named them “The Neo-Thāhiriyyah.”
7. The occupation of the Ummah in arguments over minor disagreements in jurisprudence, which has led to much infighting.
8. The denunciation of those opposed to their calls, suggesting that they alone are properly following the Qur’an and Sunnah.

Imam Ash-Shaukani and Taqlīd

Imam Muhammad ibn Ali Al-Shaukani (died 1250 Hijri) was a towering leader of revival and ijtihād in the thirteenth century Hijri, as is apparent from his books on ijtihād. For instance, in his As-Sayl Al-Jarrār, which explains the text of Al-Azhār (a foundational text on the Zaydi or Hāduwi jurisprudence), he treads a path of independent ijtihād; he uses the Qur’an and Sunnah, and expresses his own legal opinions, which lie outside the four or eight madhāhib of his time. Another example is his famous Nayl Al-Awtār, where he explains the book Muntaqa`l-Akhbār min Ahadīth Sayyid Al-Akhbār by Ibn Taymiyyah. This book has become a significant resource on modern jurisprudence for both Sunni and non-Sunni schools. Another example is his book, Al-Darārī al-Muḍiyyah, (an explanation of Al-Durar al-Bahiyyah) in which he summarized the independence of his jurisprudence.

In fact, Imam al-Shaukani intensely opposed taqlīd and called for ijtihād in more than one of his books:

1. His famous book on the foundational principles of jurisprudence, Irshad al-Fuhūl.
2. His risalah, Al-Qawl al-Mufīd fī Adillati`l-ijtihad wa`l-Taqlīd.
3. His book Adab al-Tālib wa Muntaha`l-Arab.
4. His extensive work, al-Sayl al-Jarrār.

Al-Shaukani also offers alternate interpretations for what proponents of taqlīd use as the basis of their arguments (i.e. ayāt from the Qur’an, such as: “So ask the people of knowledge if you do not know” (Qur’an, 16:43), and statements of the Messenger ﷺ such as, “Do they not ask if they do not know? The cure for confusion is to inquire”). Al-Shaukani clarifies that these do not entail taqlīd of a specific person in every issue, but rather asking whoever is accessible from the people of knowledge, as was the practice at the time of the Prophet ﷺ and his companions.

Al-Shaukani benefits from the writings of Ibn al-Qayyim – which rejected taqlīd – and also those of Imam Ibn Abdu`l-Barr, Ibn Hazm, and others before him. He also rejects the notion that the door of ijtihād was closed, considering it to be a blameworthy innovation. He explains that the blessing of Allah is vast, and cannot be limited to a specific era, or monopolized by a specific group of people. Rather, it is open to all those whom Allah has gifted with the capability.

Al-Shaukani called for ijtihād and practiced absolute and independent ijtihād. He did not adhere to any of the known madhāhib, neither in foundational principles of jurisprudence nor in the actual jurisprudence – even though he had originally started out as a Zaydi. He even developed his own foundational principles, which he explains in his Irshād al-Fuhūl ila Tahqīq al-Haqq min ‘Ilm al-Usūl.

He did, however, oppose the use of independent legal reasoning and opinion (ra’y) in jurisprudence, and also rejected the legal school of ra’y in its entirety. Instead, he insisted on a complete dependence on revelation, stating that the religion is not formulated by the opinions of imams, but rather by the narrations of the Seal of the religion, the Messenger of Allah ﷺ. He believed that a layperson who is not qualified to perform ijtihād ought to ask scholars to qualify their positions from the Qur’an and Sunnah, and not base it on their opinions.

I agree with Shaukani in some aspects and disagree with him on others. I am with him in:

• His call to the scholars for independent ijtihād.
• His rejection of those who impose taqlīd on everyone in the Ummah.
• His opposition of those who require that one be limited to a single madhhab on every issue.
• His rejection of those who strictly follow a specific madhhab, even on issues where the weakness of their madhhab’s sources is made clear to them.
• His rejection of the idea that the doors of ijtihād were closed after the second or third century after Hijri.
• His encouragement of the Ummah to follow the Qur’an and Sunnah, over the opinion of men.

However, I take issue with his prohibition of taqlīd on the masses and his prohibition of following a madhhab. I do not see anything that prevents people from following an Imam and adhering to his madhhab, like the madhhab of Abu Hanifa, Malik, al-Shafi`i, Ahmad, Zayd, al-Hadi, Ja`far, Jabir and others. This is allowed but not required, according to the Shari`ah. The preferred position is that a lay-person does not keep a madhhab. Rather, his madhhab is the madhhab of the one he asks from among the scholars. As such, he is allowed to go from his madhhab to another, and he may ask whomever he wants from the scholars on whatever issues concern him. He may even leave his madhhab, in some cases, and follow another if he believes that the other madhhab has stronger proofs.

I also differ with Imam al-Shaukani in his opposition to the use of independent legal reasoning and opinion (ra’y) in jurisprudence as being something that is against the Shari`ah. The truth is that there is no jurisprudence without ra’y. Blameworthy ra’y is that which goes against clear texts. However, ra’y on topics where there is no textual basis, and ra’y used to better understand the texts according to their foundational principles and in light of the greater objectives of Shari`ah, is indispensable. There must be ra’y in areas that can be overlooked due to specific legal flexibilities, or in areas that lack definitive texts that clearly require adherence. This occurs through:

• Qiyās (a process of analogical reasoning) using scriptural texts, or
• Istihsān (a process of legal preference) to side-step clear but weak qiyās for stronger but more hidden qiyās, or
• Istislāh (seeking the greater benefit) to act on public interest, with its legal conditions, or
• ‘Urf (custom) in its allotted space, or
• Sadd al-Tharā’iʿ (blocking the means to evil) or
• Istishāb (presumption of continuity), etc.

All of these involve the use of ra’y. Can the jurist really be above using it? For that matter, is the jurisprudence of the likes of `Umar, Uthman, Ali, Ibn Mas`ud, Zaid, Ibn Abbas, and others, free from it?

Is it even possible to understand the texts correctly without ra’y? Did not the companions of the Prophet ﷺ use their ra’y when they prayed `Asr on their way to Bani Quraytha? They were more right than those who delayed their prayer until they arrived at their destination, but after the time of prayer had passed, as suggested by Ibn Taymiyyah.

Are the greater objectives of the Shari`ah not an example of the use of ra’y in understanding Qur’anic and Prophetic texts?

Is not ‘Umar’s moratorium on the punishment for stealing during the famine an example of ra’y? Is not his decision to transfer the liability of blood money from the tribe to the state an example of ra’y? Is not his decision against the distribution of specific conquered lands of Iraq to the Muslim army an example of ra’y? Is not his prohibition on marrying ‘women of the book’ for fear of its impact on Muslim women, an example of ra’y? Is not his decision to combine full brothers with half-brothers (from the mother’s side) in inheritance law – even after having ruled otherwise – an example of ra’y?²

Is not `Uthman’s position that divorce is not binding if uttered while the husband is experiencing a near-death illness an example of ra’y?³ Is it not related that Abu Bakr and other companions said, “I give legal edicts with my ra’y, for if it is correct it is from of Allah, and if it is wrong, then Allah, the Glorified is free of any blame”?

Did the Noble Messenger ﷺ not accept Mu`adh’s response when he sent him to Yemen? When he ﷺ asked, “By what will you judge?”, Mu`adh responded that he would judge by the Book of Allah, then by the Sunnah of the Messenger of Allah. If the answer was not to be found in the Book or the Sunnah, he said, “I will make ijtihād by my ra’y.”

Did the companions not differ on some rulings because of the differences in their ra’y and understanding?

Opinion #3: The Allowance of Taqlīd for One Who Has Not Reached the Level of Ijtihād

The third opinion does not impose taqlīd on its adherents, as with the first opinion, nor does it prohibit it, as with the second opinion. Instead, it allows taqlīd for some and prohibits it on others. Imam Hasan al-Banna discusses this in one of his “20 Principles of Understanding”:

“Every Muslim who has not reached the level of understanding the arguments of legal deduction and jurisprudence is encouraged to follow the works of the great Imams of Islamic jurisprudence. While following an Imam, one should try to understand the argument of the Imam. Once the credibility of the Imam is established, one should accept any of this Imam’s guidance, equipped with proper arguments. With that, a Muslim is advised to exert the necessary efforts to acquire such a level of understanding for arguments of legal deduction and jurisprudence.”

Thus, he did not make taqlīd or following a madhhab mandatory, and he did not make it prohibited. Rather, he allowed it, but not for everyone. It is legally sanctioned for “every Muslim who has not reached the level of understanding the arguments of legal deduction” – that is – for the lay person and the like who are not qualified to derive rulings from the Qur’an and Sunnah, or to know ijmā’, qiyās, and the other methodologies which build upon these foundational ones, such as istislāh, ‘urf, istishāb, and the Shari`ah of those before us.

Following vs. Blindly Imitating

In his wisdom, Ustadh al-Banna prefers the word ittibā` (to follow) over taqlīd (to blindly imitate) in his principle, stating Muslims are ‘to follow (yattabi`u) one of the great imams of Islamic jurisprudence.’ The Qur’an too, uses the word ittibā` in contexts that make it praiseworthy and legally acceptable.

This is seen in the statement of Ibrahim: “Oh my father, indeed there has come to me of the knowledge what has not come to you, so follow me; I will guide you to an even path” (Qur’an, 19:43). This ayah invites one to follow the ones who are knowledgeable in areas that one does not know.

We also see in the story of Musa (as) and the famous righteous servant of Allah, Khidr: “Then they found one of Our servants whom We blessed with mercy, and taught from Our knowledge. Moses said to him, “Can I follow you that you may teach me some of the knowledge and guidance bestowed upon you?” (Qur’an, 18:65-66).

Musa (as) asks to be permitted to follow Khidhr (“ittibā`ih”) so he may learn from the knowledge that Allah, the Exalted, had given him. This shows that following the knowledgeable, in certain cases, is not blameworthy.

Imam Abu ‘Umar ibn Abdu`l-Barr said: “The purpose of knowledge is clarity – to grasp the known as it truly is. For when something is made clear to someone, he has come to know it. The scholars say that the one who makes taqlīd has no knowledge, and they do not differ in that.”

Abu Abdullah bin Khuwayz Mindad al-Basri al-Maliki said, “The meaning of taqlīd is to turn to a statement that is not substantiated with proofs.  Ittibā` implies that the statement is grounded in legal justification.  Ittibā` is sanctioned in the religion, while taqlīd is not.”

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TRANSLATOR’S NOTE: While this is just an English rendering of some issues regarding the subject of taqlid and tamadhub, it is in no way an exhaustive or complete discussion of the subject. For more information on this topic, please refer to Sh. Qaradawi’s work, Kayfa Nata`mal Ma`a’l-Turath (How We Deal with the Tradition) in which these pages represent only a small section.