Qiyas (Analogical Reasoning)
and Some Problematic Issues in Islamic law
and Some Problematic Issues in Islamic law
Dr. Mohammad Omar Farooq
Associate Professor of Economics andFinance
Upper Iowa University
Associate Professor of Economics and
(Draft; feedback welcome: June 2006)
The Hudood/Shari'ah Ordinance, introduced in
While such extremities cannot be generally attributed to our noble jurisprudents and scholars of the classical period, by the time various schools (madhab) were formed and the orthodoxy took shape, Islam gradually fell victim of excessive legalism and literalism.
What is now commonly identified or understood as Shari'ah and presented as divinely sanctioned is actually mostly interpretations of fallible human beings, even though such human enterprise is, as claimed, informed by the two primary sources, the Qur'an and the Sunnah. For Muslims, the Qur'an is direct revelation from God and it is divine and infallible. The Sunnah or hadith is relied upon for deducing much of the laws and codes in detail. Even though the hadith scholars have done a most appreciable work in coming up with collections of hadiths and their authentication, hadith in itself it is not divine and infallible. The other two sources of Islamic laws are ijma' (consensus) and qiyas (analogical reasoning).
"The Qur'an is the primary source of law. The other three sources, i.e., the Sunnah, ijma' and qiyas have been stamped with the revelatory character. ... Qiyas derives its value from these sources; hence it is indirectly infallible."[3]
"Muslim jurisprudence (fiqh), for the systematic deduction of law, developed a methodology of its own to interpret and make deductions in line with the Shari'ah, for example, qiyas (analogy), ijma' (consensus). ... The basic 'usual are four: Qur'an, Sunnah, ijma' and qiyas. The various schools of Muslim jurisprudence differ on the number of 'usul to be used or emphasized, although all of them include the Qur'an and the Sunnah."[4]
Ijma' has been the most important integrative tool to establish sanctity of the Islamic laws and codes, including those based on qiyas. However, there is hardly anything related to the doctrine of ijma' about which there is consensus.[5] The focus of this essay is qiyas, the fourth source of Islamic fiqh. Muslims desire to follow the guidance of God, as given through the Qur'an and the Prophet Muhammad. They want to follow Islamic laws and codes, because the corpus of laws and codes to them (and they are told and taught) represent the Islamic guidance for the entire spectrum of life. However, even though they want to follow Islam and the laws/codes that are presented to them as Islam, neither they know how these laws are arrived at nor they see the justice and problem-solving that such guidance should lead to or embody. Many Muslims now give a cold shoulder to the traditional body of Islamic laws and there are others who might even like to disavow many aspects of it. An important source of the problem is qiyas.
“The formalism and frequent use of qiyas in law generated hatred towards this principle. There was a widespread disagreement among the jurists, especially among the Iraqis, as a result of the use of ra'y [opinions] and qiyas.”[6]
In this essay, we explore a few aspects of Islamic laws that are illustrative of some of the excesses arising from qiyas, when applied in a legalistic and literalist manner.Some Pertinent Basics of Qiyas
The Qur'an is not quite a compendium of laws and codes. Actually, only a very small portion of the Qur'an relates to specific guidance establishing what is permissible and what is prohibited. Beyond setting some principles, norms and parameters, a commonly accepted position of Islamic fiqh is that except what is categorically prohibited, the default guidance of the Qur'an is permissibility. As al-Qaradawi explains:
“The first asl', or principle, established by Islam is that the things which Allah has created and the benefits derived from them are essentially for man's use, and hence are permissible. Nothing is haram except what is prohibited by a sound or explicit nas (i.e. text) from the Law-Giver. ... He has prohibited only a few things for specific reason, ... In Islam the sphere of prohibited things is very small, while that of permissible things is extremely vast. There is only a small number of sound and explicit texts concerning prohibitions, while whatever is not mentioned in a nas as being lawful or prohibited falls under the general permissibility of things and within the domain of Allah's favor.”[7]
As the Prophet's life, reflected in his words and actions, is a model, Muslims turn to Sunnah (authenticated by hadith) for detailed guidance. Yet, neither the Qur'an nor sunnah/hadith covers every situation that its adherents might encounter. That's where qiyas or analogical reasoning fits in. "Qiyas meant to seek similarity between new situations and early practices, especially those of the Prophet."[8]
"The function of qiyas is to discover the cause or illah of the revealed law so as to extend it to similar cases. Wine drinking, for example, is prohibited by explicit text. The cause for the prohibition is the intoxicating effect, hence in whatever this cause is found prohibition will become applicable."[9]
"... no one at all should [give an opinion] on a specific matter by merely saying: It is permitted or prohibited, unless he is certain of [legal] knowledge, and this knowledge must be based on the Qur'an and the sunna, or [derived] from ijma' (consensus) and qiyas (analogy)."[10]
Qiyas is "part of Islamic Law ... that which subject to modification according to the need and requirements of the changing times and it is this part of the Islamic Law which endows it with wide possibilities of growth and advancement and makes it fully capable of fulfilling all the needs of an expanding human society in every age."[11]
Graduallay, qiyas "was recognised as a fourth source of law along with the other three sources. By and by, people began to depend on it extensively. Ultimately it overreached the Qur'an and the Sunnah."[12]Some people suggest or claim that there was ijma' among the companions about the validity of qiyas as part of the Muslims' toolkits to arrive at or deduce solutions or guidance involving situations that are not covered by the other primary sources, i.e., the Qur'an and the Sunnah.
"The companions were unanimously in agreement concerning the application of analogy."[13]
However, anyone adequately familiar with ijma' as a doctrine and a method[14] knows that such claim about having ijma' of the companions about qiyas is simply untenable. One can argue that many of the companions applied what they knew to situations that were unknown but similar, and thus they practiced qiyas. However, to claim that the companions of the Prophet knew this tool as qiyas, deliberated on this and reached a consensus is simply untenable. Indeed, those want to establish the validity of everything in a text-oriented manner by identifying and offering textual evidences have tried to offer such evidences from the Qur'an and the Sunnah as the basis for qiyas as one of the source/methodologies of Islamic fiqh.[15] There is no verse in the Qur'an that the scholars have been able to agree upon as the basis for qiyas. Indeed, Sunnah and hadith have been offered as well to establish the textual justification for qiyas. Once again, there is no such agreed upon basis, even though plenty of different examples have been offered by different scholars.
There are scholars and groups among Muslims, such as the Zahiri school, represented by one of its main protagonists Ibn Hazm, have rejected qiyas altogether. Ibn Hazm's Zahiri approach (based on literalism and explicit meaning of the textual evidences) shuns qiyas. As there have been attempts to justify qiyas as part of ijtihad, an often quoted hadith is narrated by Muadh Ibn Jabal, when he was sent to
Ibn Hazm of Zahiri school as well as some scholars of other persuasions dispute this hadith.
"[Ibn Hazm] does not recognise the tradition of Mua'dh b. Jabal as sound. This is widely quoted by the exponents to justify qiyas. He thinks that this tradition is known only through Abu Awn from Mu'adh, and its transmitters al-Harith b. Umar is obscure. Hence it is not dependable."[17]
Careful readers might be surprised, when they stumble upon the chapter headers in places none other than Sahih al-Bukhari: "What is said against judging (in religion) made on the basis of one's own opinion (i.e., ra'y) or by Qiyas" or "Whenever the Prophet was asked about something regarding which no verse was revealed, he would either say, 'I don't know' or give no reply, but he never gave a verdict based on opinion or on qiyas."[18] Actually, at one stage, the opposition to ra'y or qiyas was so strong that the above chapter headings reflect Imam al-Bukhari's juristic view on this issue. Notably, scholars view such chapter titles in al-Bukhari not necessarily as his personal view, but what he regarded as the prevalent view. Regardless of these opposition and disagreement, the four orthodox schools, representing the mainstream, helped qiyas to emerge and serve as one of the major and mostly used tools of Islamic jurisprudence.
There is a close relationship between ijma' and qiyas though. Ijtihad is what makes Islamic jurisprudence dynamic, and qiyas brought some discipline to the applied human reasoning to determine what is Islamically acceptable and what is not for things or situations that are not already covered by the other three sources. However, for the result of a qiyas to be broadly accepted, it also had to be validated by ijma'. If validated, most Muslim scholars have placed high value on qiyas as a methodology.
"The procedure of analogy is devised to eliminate the free use of reason and independent value judgments."[19]
"There is an acute controversy among the classical jurists over the validity of ijma' on questions based on analogy (qiyas) and individual interpretation (ijtihad)."[20]
"Ijma has the authority to decide whether a certain opinion of the Jurist or a decision of a Judge is right or wrong. No qiyas can attain the status of law unless it is authenticated by ijma."[21]
Diversity of views about Qiyas
Even though the Sunnis generally accept qiyas as one of the four sources of Islamic jurisprudence, there is considerable disagreement about what qiyas is, its scope, the method of validation, etc.
"After the Companions, jurists differed over the extent to which analogy could be relied upon. ... The question of analogy has caused a good deal of controversy."[22]
Just like most aspects of Islamic jurisprudence have no consensus, the same is true about qiyas. Each school has its own definition with special emphasis or nuance.- "The root meaning of the word qiyas ... is 'measuring', 'accord', and 'equality'.
- It is defined by the Hanafites as 'an extension of law from the original text to which the process is applied to a particular case by means of a common illah, which cannot be ascertained merely by interpretation of the language of the text.'.
- To Malikites, it is 'the accord of a deduction with the original text in respect of the illah or effective cause of its law'.
- For the Shafites it is 'the accord of a known thing with a known thing by reason of the equality of the one with the other in respect of the effective cause of its law. To Shafi'i, qiyas and ijtihad (interpretation) are two terms with the same meaning."[23]
Just as there is no consensus that qiyas is a valid methodology of Islamic jurisprudence, there is also no consensus as to (a) what constitutes illah, (b) how to derive it, or (c) how to validate it.[25]
"As can be expected, not all Muslim jurists accepted the validity of qiyas, and even those who did held a variety of contradictory opinions regarding when its use was legitimate."[26]
In reaching unknown from known, extending our frontiers of knowledge and understanding to new situations, or to derive solutions to problems not encountered before, analogy is a commonly used tool of human reasoning. Prof. Kevin Dunbar at Analogy is a basic human reasoning process used in science, literature, art, education, and politics. Analogy can be used to make predictions, provide explanations, and restructure our knowledge. Analogy is also used to influence public opinion, fight battles, win wars, start and finish relationships, and advertise laundry detergent. Analogies, such as using the weather conditions on Earth to explain observations of the planet Mars are ubiquitous in science. In the pictures on the right the visual features of an earth based "dust devil" and the Martian cloud are used to explain the dark streaks that appear on Mars: the current view is that the dark streaks on Mars are trails of enormous dust devils. Because analogy use is so common, and such an essential part of human existence, there has been much research in Cognitive Science on the nature of analogy -- many experiments have been conducted and computational models proposed. There has been a large consensus among analogy researchers on the key features of analogy and what it is that people do when they make an analogy.
Thus, the fascination with, and the use of, qiyas by Muslim scholars is easily understandable. In religious context, an otherwise common tool of human reasoning takes on a sacred character. However, it is important to keep in mind that qiyas is essentially speculative (zanni).."The jurist who resort to qiyas takes it for granted that the rules of Shari'ah follow certain objectives (maqasid) that are in harmony with reason. A rational approach to the discovery and identification of the objectives and intentions of the Lawgiver necessitates recourse to human intellect and judgement in the evaluation of ahkam. ... Since an enquiry into the causes and objectives of divine injunctions often involves a measure of juristic speculation, the opponents of qiyas have questioned its essential validity. Their argument is that the law must be based on certainty, whereas qiyas is largely speculative and superfluous. ... It is once again in recognition of this element of uncertainty in qiyas that the ulama of all the juristic schools have ranked qiyas as a 'speculative evidence'."[27]
"From an epistemological point of view, the most important feature of the judgments concluded through analogy by 'illa is their being disputable. This results not only from the fact that the 'illa, by means of which these judgments are arrived at, can never be fully established or shown to be true, therefore giving rise to different conceptions as to what constitutes a proper or acceptable 'illa."[28]
"... all jurists concluded that qiyas is a form of probabilistic (al-zann al-rajih) evidence.*** Other than the form of qiyas in which the ‘illah is clearly identified in the texts, qiyas is never deemed to be as high an authority as text or ijma‘ which are deemed as definitive or decisive evidences (qat‘i). Rather, qiyas is recognized as a probability the degree of which is measured by the 'proximity and harmony' with the textual authorities.***"[29]
"Analogy (tamthil) entails probability, which can be achieved by conjecture and imagination."[30]
The problem with qiyas as a source methodology and authority in Islamic jurisprudence is seriously compounded by a lack of agreement about the relationship between asl (the original case) and the validity of qiyas-based rules derived therefrom."[Regarding] the conditions laid down by the jurists for the validity of the rule of law contained in the original case. Due to lack of of the early literature on the subject we cannot trace the origin of the conditions as developed in the classical period. Al-Jassas (d. 370 AH) does not deal with these conditions. He discusses legal cause (illah) in greater detail. Abu Ishaq al-Shirazi (d. 476 AH) mentions six conditions, al-Ghazali (d. 505 AH) and al-Amidi (d. 631 AH) give eight, Ibn Qudamah (d. 620 AH) stipulates only two conditions, al-Razi (d. 606 AH) and Ibn al-Hajib (d. 626 AH) provides six, and al-Baydawi (d. 606 AH) five. With the passage of time, the number of these conditions became twelve as enumerated by al-Shawkani (d. 1250 AH). It seems that the jurists could not agree on any definite number of these conditions, because some of them are fundamental and others are secondary. Hence fluctuation continued perennially in this whole process. It is really difficult to be at one on such speculative questions. According to al-Razi six conditions are agreed and the rest are disputed."[31]
So, essentially, qiyas is speculative, based on fallible human reasoning. However, when infallible divine sources and fallible non-divine sources become parts of a single toolkit, unless an appropriate level of conscious humility in regard to our fallibility is taken into due consideration and explicitly acknowledged, excesses can occur. In the following parts, we deal with four such issues, where our great Muslim scholars and jurisprudents may have gotten carried away in their literal and legalistic use of qiyas. Lest it is misunderstood, in analyzing these problematic issues, neither it is implied nor it is actually so that the Muslim scholars and jurists had a negative intent. Just as they were pious, conscientious, brilliant and humble, they were also fallible. They developed many of the details of Islamic fiqh and offered their reasoning with such a zeal that, as to be illustrated by the following cases, they probably just got carried away and did not consider or anticipate the possible ramifications, especially in the future.
However, as many of them were trailblazers of their own time, they never hesitated to take a critical look at the corpus of knowledge and works before them and apply themselves to improve in whatever way they could. That does not mean that they always succeeded.
Some Problematic Issues in Application
- Kafa: Equality in marriage
- Slavery: One-half
- Marriage, Contract and
- Marriage, Contract and Lease
- Peace treaties with non-Muslims
Marriage is at the core of all social institutions and it is no exception in Islam. Marriage is probably also the most important personal decision in an individual's life, whereby two individuals of opposite sex join together as one unit. Each of us as individuals has uniqueness. Since it is generally expected to be a lifetime relation creating further bonds through children and others, it is already a challenging undertaking. To bring together two individuals toward a harmonious or at least working relationship, the issue of compatibility between the marriage partners is vitally important. There is no such thing as perfect or guaranteed compatibility, but the more the incompatibility can be minimized is better. Not necessarily, but significant gap in age, education, wealth, status, CAN be impediments to a harmonious marital life.
Thus, prospective partners in marriage would share as much common or comparable background as possible is simply a common sense matter. This is to be taken into consideration not just by the parents of the prospective marriage partners, but also, and more importantly, by the prospective partners themselves. Turning this into a legal requirement and treating certain violation of it as a matter of legal intervention by the parents and the Qadi (judge) are illustrative of legalistic tendencies.
Although the requirement and its legal ramifications are not the same in every madhab, here we will present primarily the Hanafi position as presented in various texts of Hanafi Fiqh. The following excerpts are taken from one of the most authoritative and respected Hanafi text, Hedaya by al-Marghinani.[32]
“Kafat, in its literal sense, means equality. In the language of the law it signifies the equality of a man with a woman...
In marriage regard is had to equality, because the Prophet has commanded, saying, 'Take ye care that none contract women in marriage but their proper guardians, and that they be not so contracted but with their equals'; and also, because the desirable ends of marriage, such as cohabitation, society, and friendship, cannot be completely enjoyed excepting by persons who are each others equals (according to the customary estimation of equality) as a woman of high rank and family would abhor society and cohabitation with a mean (i.e., lesser) man; it is requisite, therefore, that regard be had to equality with respect to the husband; that is to say, that the husband be the equal of his wife; but it is not necessary that the wife be the equal of the husband, since men are not degraded by cohabitation with women who are inferiors. -- It is proper to observe, in this place, that one reason for attending to equality in marriage is, that regard is had to that circumstance in confirming a marriage and establishing its validity; for it a woman should match herself to a man who is her inferior, her guardians have a right to separate them, so as to remove the dishonour they might otherwise sustain by it.”[33]
The problem here is that here something that has not been made a "requirement" of marriage either in the Qur'an or in Sunnah is turned into a requirement for the "validity" of the marriage. Moreover, if two adult prospective marriage partners violate this, the guardians can legally intervene through the court system and have the marriage dissolved. Apparently, this requirement is based on textual proofs from the Prophet. Let's see the proof.
A'isha reported that the Prophet (s) said: "Choose for your sperms the best women, marry with comparable [in Arabic, akfa'] and make proposal of marriage to them."[34]
It should be pointed out that many such guidance from the Prophet is merely sensible and wise guidance, not necessarily to be treated as a matter of law. Turning everything like this into legal matters is the kind of legalism Muslim society has fallen victim of.Let us take a closer look at this hadith. It is not a mutawatir hadith, which yields certainty of knowledge that that's what the Prophet has said. It is neither mutawatir bil lafz (exact words) nor bil ma'na (meaning). Even Sahih or otherwise known as authentic hadith does not yield certainty of knowledge.[35] A bigger problem is that this is not even a Sahih hadith. The comments in Sunan Ibn Majah about this hadith clarify it amply.
According to al-Zawaid, its isnad contains in it Harith b. Imran al-Madine. Abu Hatim said about him: He is not a sound transmitter and the hadith, i.e. this hadith, that he transmitted from the reliable authorities has no basis. Dara Qutni said, "He is matruk" [Ibn Majah, Vol. 3, p. 180] [Note: matruk means abandoned or rejected because it is a tradition in whose chain of transmission someone known to be a liar is mentioned. For a detailed glossary, see Awliya'i]
Notably, I have not come across any other hadith than the above one on this subject. In al-Bukhari and Sunan Abu Dawood, there are chapter headings "Equality in marriage", but none of the hadiths there is as specific as the one quoted above from Ibn Majah. The hadith in Abu Dawood as following:Narrated Abu Hurayrah:
Abu Hind cupped the Prophet (p) in the middle of his head. The Prophet (p) said: Banu Bayadah, marry Abu Hind (to your daughter), and ask him to marry (his daughter) to you. He said: The best thing by which you treat yourself is cupping. [Sunan Abu Dawood, #2097]
Readers can determine for themselves how one would deduce a law, the violation of which can be subject to legal intervention, based on the above hadith. The readers can also read the pertinent hadith in Sahih Al-Bukhari [Book of Marriage, #29] and once again determine the relevance of it as the basis for such a legal requirement.Abu Hind cupped the Prophet (p) in the middle of his head. The Prophet (p) said: Banu Bayadah, marry Abu Hind (to your daughter), and ask him to marry (his daughter) to you. He said: The best thing by which you treat yourself is cupping. [Sunan Abu Dawood, #2097]
So, some valuable words of wisdom and exhortation from the Prophet have been turned into a matter of law, based on a hadith that not only does not yield certainty of knowledge, but also is not an authentic or undisputed hadith. Yet, this is not an example of qiyas, because the general principle of equality or compatibility underlying this legal position is at least informed by a hadith (though not authentic).
However, what the relevant scholars then did is that they stretched the matter of equality to a level that falls within the realm of qiyas, because such stretching is supported neither by the Qur'an or Sunnah.
“Equality in point of freedom is the same as in point of Islam, in all the circumstances above recited, because bondage is an effect of infidelity, and the properties of meanness and turpitude are therein found.”[36]
The above provision actually separates the free persons from those in bondage (slaves). The classical treatment of slavery is irreconcilable with the Islamic principles of justice and dignity. However, that is a separate topic.[37] What is important to note here is that the actual hadith does not specify any parameters for kafa'. Yet, one can argue that freedom is an essential human condition and compatibility between the prospective partners in this regard is also a matter of common sense and, thus, wise. The issue still does not have to belong to the legal domain.“Regard is to be had to equality in piety and virtue, according to Haneefa and Abu Yusuf; and this is approved, because virtue is one of the first principles of superiority, and a woman derives a degree of scandal and shame from the profligacy of her husband, beyond what she sustains even from that of her kindred. ...“[38]
The specification of kafa' in piety and virtue is simply untenable. Of course, any individual with bad reputation or habits should be taken into consideration by the relevant parties to marriage. But why turn this into a matter of law, if two adult Muslims want to marry, even where they don't have kafa' in terms of piety and virtue?“Equality is to be regarded with respect to property, by which is understood a man being possessed of a sufficiency to discharge the dower and provide maintenance; …”[39]
Once again, dower (mahr) is a required condition of marriage and is covered by separate sources in the Qur'an and the Sunnah. Some degree of compatibility or comparability in terms of wealth and property is a matter of common sense. No need to turn it into a legal requirement, except to protect the rights of any weaker or disadvantaged party. What comes next in the qiyas by the relevant scholars is not merely a stretch, but totally unacceptable overstretch, where the idea of "equality" is turned on its head, contradicting the pristine Islamic principle and value of justice and egalitarianism.
“Equality is to be regarded in trade or profession, according to Abu Yusuf and Mohammed. -- ... the profession is not to be regarded, unless where it is of such degrading nature as to oppose an unsurmountable objection; such for instance as barbers, weavers, tanners, or other workers in leather, and scavengers, who are not the equals of merchants, perfumers, druggists, or bankers.”[40]
As a common sense matter, one can argue that giving a woman of professions of higher social standing in marriage with someone of professions of lower social standing can be problematic. Of course, if an adult woman wants to marry someone with such disparity, it should be her prerogative. It is also mentioned that professional equality is not a strict requirement. However, what is particularly objectionable is identifying barbers, weavers, tanners as professions of degrading nature. Nowhere the Prophet ever made any statement that looked down on any particular profession. Instead, the Prophetic teaching ennobles laboring itself. “Equality is regarded with respect to lineage, this being a source of distinction among mankind; thus it is said "a Quraish is the equal of a Quraish throught all their tribes;" that is to say, there is no pre-eminence among them, between Hashmees and Nislees, Teyemees or Adwees; and in like manner they say, "An Arab is the equal of an Arab." -- This sentiment originates in a precept of the prophet to this effect; hence it is evident that there is no pre-eminence considered among the Quraish tribes: and with respect to what Imam Mohammed has advanced, that 'pre-eminence is not regarded among the Quraish tribes or families, excepting where the same is notorious, such as the house of the Caliphs," his intention in this exception was merely to show that regard should be had to pre-eminence in that particular house, out of respect to the Khalifas, and in order to suppress rebellion or disaffection; and not to say that an original equality does not exist throughout. ...
Mawalees, that is to say, Ajams, who are neither Quraishis nor Arabs, are the equals of each other throughout, regard not being had among them to lineage, but to Islam. -- Thus an Ajam whose family have been Muslims for two or more generations is the equal of one descended of Muslims ancestors; -- but one who has himself embraced the faith, or he and his father only, is not the equal of an Ajam whose father and grandfather were Muslims; because a family is not established under any particular denominator (such as Muslims, for instance) by a retrospect short of the grandfather. -- This is the doctrines of Haneefa and Mohammed. Aboo Yusuf says that an Ajam whose father is a Muslim is the equal of woman whose father and grandfather are Muslims.
An Ajam who is the first of his family professing the faith is not the equal of woman whose father is a Muslim.”[41]
The above reasoning, except the dissenting opinion of Abu Yusuf in this case, categorically contradicts the teachings of the Prophet. In the famous Last Sermon, the Prophet demolished all such unegalitarian notions. He said: All mankind is from Adam and Eve, an Arab has no superiority over a non-Arab nor a non-Arab has any superiority over an Arab; also a white has no superiority over black nor a black has any superiority over white except by piety and good action.
To even suggest that a non-Arab is not equal to an Arab is simply erroneous, as contradicted by explicit teaching of the Prophet. To claim that a converted Muslim is not equal to someone who has been born into a Muslim family is also an outrageous misapplication of qiyas.“If a woman contract herself in marriage, consenting to received dower of much smaller value than her proper dower, the guardians have a right to oppose it, until her husband shall agree either to give her a complete proper dower, or to separate from him. This is according to Haneefa. -- The two disciples maintain that the guardians are not possessed of any such authority.”[42]
That the two disciples of Imam Abu Hanifa disagreed is comforting, but the subsequent Hanafi Fiqh seems to have resolved on this particular issue in favor of the Imam than his two disciples. The position of the two disciples here upholds the principle that much of these issues are prerogative of a marrying adult woman. Guardians can't intervene in such matters. The overstretching of qiyas, as presented in Hedaya, was further stretched in later legal treatises. Here are some examples from Haskafi's Durr-ul-Mukhtar.
“A person who has himself adopted the Mohammadan faith is unequal to one whose father (also) was a Muslim and one who has been emancipated slave whose mother was a free woman originally.”[43]
“A male emancipated by a man of low class will not be equal to a woman emancipated by a person belonging to the gentiles.”[44]
“An Ajam (non-Arab) male is not as equal to an Arab female, although the Ajam be a learned man or a king, and this is the most correct view.”[45]
“A Hanafi male is an equal to the daughter of a Shafei, and if we are asked as to whether it is valid according to the doctrines of that sect, we will say in reply that it is valid according to our sect.”[46]
The segment of Hedaya on this topic begins with a prefatory remark: "Kafat, in its literal sense, means equality. In the language of the law it signifies the equality of a man with a woman..."[47] However, the legal analysis and reasoning that came about turned the issue of equality, in reality, into an endorsement of inequality. Indeed, what was supposedly formulated to protect women and their family in terms of their rights and status became an issue of inferiority of bride. "A man is said to be kufu of another, when he is equal to that other. Here from kufuship is meant a particular kind of equality or inferiority of bride (to bridegroom)."[48] How can the issue of equality on which these scholars insist becomes an issue of "inferiority of bride"? Well, when human reasoning, as in this case qiyas is overstretched, it is possible.Excepting a few types of marriage partners, the Qur'an declares broad lawfulness of all other women. The emphasis is on religious compatibility, piety and fairness.
Also (prohibited are) women already married, except those whom your right hands possess: Thus hath Allah ordained (Prohibitions) against you: Except for these, all others are lawful, provided ye seek (them in marriage) with gifts from your property,- desiring chastity, not lust, seeing that ye derive benefit from them, give them their dowers (at least) as prescribed; but if, after a dower is prescribed, agree Mutually (to vary it), there is no blame on you, and Allah is All-knowing, All-wise. [4/an-Nisa/24]
Earlier in this essay, a hadith about Kafa' was mentioned from Sunan Abu Dawood. The same book contains some comments by the translator, which is instructive.Abu Hind was a freed slave of Banu Bayadah. He was not a member of their tribe. The Prophet (p) asked Banu Bayadah to give their daughter in marriage to Abu Hind and ask him marry his daughter to them. This shows that only religion shall be considered in respect of equality in marriage. This is the view held by Malik. This means that it is not necessary that equality in point of lineage, vocation, status and other qualities should be considered in marriage. For the purpose of marriage only religion is worth consideration. A Muslims can marry any Muslim woman whatever her lineage, status and vocation may be. Ibn Umar, Ibn Mas'ud, Muhammad b. Sirin and Umar b. Abd al-Aziz are reported to have held this view. According to most of the scholars, equality in point of religion, status, lineage, vocation, soundness of health and financial condition should be considered in marriage. Equality in lineage is taken into consideration by the majority of the scholars. According to Abu Hanifah, the Qurarish are equals to each other. The Arabs are equal to each other. Non-Arabs are not equal to the Arabs. Al-Shafi'i holds a moderate view. He thinks that equality should be taken into consideration in marriage. But marriage is not forbidden between non-equals. If two parties marry, but they are not equal to each other, their marriage is valid with their mutual consent. In case marriage is contracted between the non-equals without their mutual consent and agreement, that marriage can be dissolved. It should be noted that there is no sound tradition in support of equality of lineage in marriage.[49]
Hammudah Abd Al-Ati, author of a scholarly work, Family Structure of Islam, offers an illuminating analysis as to why the Classical scholars may have gone in that direction of such emphasis on kafa'.[50] He makes a distinction between "social equality in marriage" and "religious equality in marriage." He establishes that the pre-Muhammad Arab society was very hierarchical and stratified based on a variety of distinguishing parameters. This society strongly emphasized social equality (lineage, wealth, profession, etc.). The Prophet Muhammad revolutionized the society by shifting the emphasis from social equality to religious equality. "Thus, a non-Muslim man is forbidden to marry a Muslim woman because he is not her equal in religion."[51] The pioneering community under the guidance and trailblazing leadership of the Prophet reduced the impact of those stratifying factors of social equality. Unfortunately, probably due to social realities of the expanded Muslim societies across so many continents, the scholars reverted to giving greater emphasis on social equality over religious equality.
Whatever way one views this, the fact is that the egalitarian view of Islam was seriously compromised in such rulings about kafa', through use of unauthentic or disputable hadiths and misapplication of qiyas.
b. Slavery: The One-half Rule
Freedom and choice are the first-order conditions of Islam.[52] The creation of human beings as a new species on this earth happened because God wanted to create a being endowed with the freedom and choice, unlike the angels, who are good and obedient to God by their nature. That's according to Islamic faith. Thus, enslavement or slavery stands in stark contradiction with the first-order conditions of Islam.
Slavery was an institution inherited from the past and it existed as an ongoing condition during the earliest periods of Islam under the Prophet Muhammad. When Islam invited the humanity back to the original and pristine teachings of God, it duly upheld the fundamental dignity of human beings. Arguably, slavery was not categorically prohibited by Islam, as it has prohibited intoxicants, adultery or pork. This is the orthodox, but an erroneous position in my view. However, there is no question that Islam revolutionized the conditions of slavery and set the institution on the path of abolition. It even set a permanent fund as part of Zakah, one of the five ritual pillars of Islam, specifically designated for securing freedom of those who are in bondage/slavery.[53]
During the ancient
The guidance of the Qur'an and the leadership of Prophet Muhammad revolutionized the contemporary society by defining and establishing certain laws and parameters for the slaves, elevated their human dignity even as slaves, and put on motion a movement toward freedom for the existing slaves. Enslavement of free people became prohibited, except captivity due to warfare. Even in case of these war captives and slaves, general incentives as well as exhortation facilitated an environment for freeing the slaves. One part of obligatory Zakah was permanently allocated for freeing people from slavery. The Prophet taught that freeing people was such a noble virtue that it can help people in their salvation from God. Some war captives (who could have been turned into slaves) were given the option of emancipation, if they could offer literacy to a number of people from the nascent Muslim community in Madinah. Freeing people from bondage was presented by the Prophet as an important way to expiate for sins. Freeing slaves was established as a recourse, if they were beaten or slapped.
Narrated Abu Musa Al-Ash'ari: "The Prophet said, "Give food to the hungry, pay a visit to the sick and free those in bondage." [Sahih al-Bukhari, Volume 7, Book 65, # 286]
Narrated Asma: "No doubt the Prophet ordered people to manumit slaves during the solar eclipse." [Sahih al-Bukhari, Volume 2, Book 18, # 163]
'Abdullah b. 'Umar reported that 'Umar b. Khattab asked the Messenger of Allah (s) as he was at ji'rana (a town near Mecca) on his way back from Ta'if: Messenger of Allah, I had taken a vow during the days of Ignorance that I would observe I'tikaf for one day in the Sacred Mosque. So what is your opinion? He said: Go and observe I'tikaf for a day. And Allah's Messenger (s) gave him a slave girl out of the one-fifth (of the spoils of war meant for the Holy Prophet). And when Allah's Messenger (s) set the war prisoners free. 'Umar b. Khattab heard their voice as they were saying: Allah's Messenger (s) has set us free. He (Hadrat 'Umar) said: What is this? They said: Allah's Messenger (s) has set free the prisoners of war (which had fallen to the lot of people). Thereupon he (Hadrat 'Umar) said: Abdullah, go to that slave-girl and set her free. [Sahih Muslim, #4074]
Zadhan reported that Ibn Umar called his slave and he found the marks (of beating) upon his back. He said to him: I have caused you pain. He said: No. But he (Ibn Umar) said: You are free. He then took hold of something from the earth and said: There is no reward for me even to the weight equal to it. I heard Allah's Messenger (s) as saying: He who beats a slave without cognizable offence of his or slaps him, then expiation for it is that he should set him free. [Sahih Muslim, # 4079]
"Abu Mas'ud reported that he had been beating his slave and he had been saying: "I seek refuge with Allah, but he continued beating him, whereupon he said: I seek refuge with Allah's Messenger, and he spared him. Thereupon Allah's Messenger (s) said: By Allah, God has more dominance over you than you have over him (the slave). He said that he set him free. This hadith has been narrated on the authority of Shu'ba with the same chain of transmitters, but made no mention of (these words) of his: I seek refuge with Allah, I seek refuge with Allah's Messenger (s). [Sahih Muslim, # 4089]
Narrated Asma: "No doubt the Prophet ordered people to manumit slaves during the solar eclipse." [Sahih al-Bukhari, Volume 2, Book 18, # 163]
'Abdullah b. 'Umar reported that 'Umar b. Khattab asked the Messenger of Allah (s) as he was at ji'rana (a town near Mecca) on his way back from Ta'if: Messenger of Allah, I had taken a vow during the days of Ignorance that I would observe I'tikaf for one day in the Sacred Mosque. So what is your opinion? He said: Go and observe I'tikaf for a day. And Allah's Messenger (s) gave him a slave girl out of the one-fifth (of the spoils of war meant for the Holy Prophet). And when Allah's Messenger (s) set the war prisoners free. 'Umar b. Khattab heard their voice as they were saying: Allah's Messenger (s) has set us free. He (Hadrat 'Umar) said: What is this? They said: Allah's Messenger (s) has set free the prisoners of war (which had fallen to the lot of people). Thereupon he (Hadrat 'Umar) said: Abdullah, go to that slave-girl and set her free. [Sahih Muslim, #4074]
Zadhan reported that Ibn Umar called his slave and he found the marks (of beating) upon his back. He said to him: I have caused you pain. He said: No. But he (Ibn Umar) said: You are free. He then took hold of something from the earth and said: There is no reward for me even to the weight equal to it. I heard Allah's Messenger (s) as saying: He who beats a slave without cognizable offence of his or slaps him, then expiation for it is that he should set him free. [Sahih Muslim, # 4079]
"Abu Mas'ud reported that he had been beating his slave and he had been saying: "I seek refuge with Allah, but he continued beating him, whereupon he said: I seek refuge with Allah's Messenger, and he spared him. Thereupon Allah's Messenger (s) said: By Allah, God has more dominance over you than you have over him (the slave). He said that he set him free. This hadith has been narrated on the authority of Shu'ba with the same chain of transmitters, but made no mention of (these words) of his: I seek refuge with Allah, I seek refuge with Allah's Messenger (s). [Sahih Muslim, # 4089]
Abu Huraira reported Allah's Messenger (s) as saying: "When the slave of anyone amongst you prepares food for him and he serves him after having sat close to (and undergoing the hardship of) heat and smoke, he should make him (the slave) sit along with him and make him eat (along with him), and if the food seems to run short, then he should spare some portion for him (from his own share) - (another narrator) Dawud said: "i.e. a morsel or two". 4097. [Sahih Muslim, # 4096]
Narrated Al-Ma'rur: "At Ar-Rabadha I met Abu Dhar who was wearing a cloak, and his slave, too, was wearing a similar one. I asked about the reason for it. He replied, "I abused a person by calling his mother with bad names." The Prophet said to me, 'O Abu Dhar! Did you abuse him by calling his mother with bad names You still have some characteristics of ignorance. Your slaves are your brothers and Allah has put them under your command. So whoever has a brother under his command should feed him of what he eats and dress him of what he wears. Do not ask them (slaves) to do things beyond their capacity (power) and if you do so, then help them.' [Sahih al-Bukhari, Volume 1, Book 2, # 29]
Narrated Anas: "The Prophet said, 'None of you will have faith till he wishes for his (Muslim) brother what he likes for himself.' [Sahih Bukhari, Volume 1, Book 2, # 12]
Notably, the Prophet elevated the slaves as the brothers (part of the same fraternity) and admonished (as in the preceding hadith) that no one is a believer unless he wishes for his brother what he likes for himself. The result of all these aspects was that a movement started where the earliest generation of Muslims during the time of the Prophet started freeing their slaves and honoring the laws and parameters set by Islam about the slaves. Within the lifetime of the Prophet, former slaves, accepted in the fraternity in full, were taking the position of honor as a caller of prayer (muazzin) at the Mosque of the Prophet and sons of former slaves were commanding military expeditions, in which Prophet's companions from the former nobility and aristocracy were included as soldiers. It is worth pointing out that the discourse about slavery pertains to only those who are already in slavery, because turning any free persons into a slave (through trade) is regarded prohibited. Several hadiths in Sahih al-Bukhari and other collections, similar to the one below, indicate that God will be an adversary on the Day of Judgment against those who sell free persons into slavery.
Narrated Abu Huraira: in Sahih al-Bukhari. Volume 3, Book 34, Number 430:
The Prophet said, "Allah says, 'I will be against three persons on the Day of Resurrection:
1. One who makes a covenant in My Name, but he proves treacherous.
2. One who sells a free person (as a slave) and eats the price,
3. And one who employs a laborer and gets the full work done by him but does not pay him his wages."
Based on hadith like the above, the scholars and jurisprudents hold the opinion that any trade involving free persons is prohibited. So, the issue pertains only to those who are already in slavery or war captives. We still haven't dealt with the pertinent verses in the Qur'an. However, the ethos of the all the above narrations from the Prophet can be summed up in one terse command from the Prophet: "Set free the slaves (raqaba)..." [Musnad Ahmad, #18672]
The orthodoxy erroneously argues that the Prophet has never specifically or categorically prohibited slavery. However, this is based on the claim that they can't find the word "haram" or "prohibited" or any prohibitive injunction in case of slavery. This is an outrageous error because all the things that are considered "prohibited" (haram) or "obligatory" (fard) are not based on the explicit presence of such expression in textual sources (i.e., the Qur'an and Sunnah). Indeed, the religious scholars and jurisprudents have made prohibited or turned into requirements so many things based on the weakest of hadiths or even misapplications of qiyas (as illustrated in the preceding section on Kafa'). But when it came to asserting the fundamental human dignity by taking the movement of the Prophet for emancipation to its logical conclusion, the Islamic position on slavery was turned on its head.
Instead of upholding the fundamental dignity and sanctity of human beings and accepting as well as carrying on the movement of emancipation as the norm, the subsequent generations reconciled themselves with the existence of slavery as an ongoing institution. By the time, the orthodox schools of Islam were formalized, the institution of slavery was treated as normal and qiyas was being applied to further normalize the institutions. One can observe leading Islamic jurisprudents dealing with the issue of slaves as commodities. For example, Imam Shafi'i [d. 204 AH] opines about the determination of blood-money of the slave as following.
Ibn Shihab said: Others have added: "[The price of the slave] shall be estimated in the same manner as that of a commodity. ...
He asked: What is the proof?
[Shafi] replied: "It is an analogy [based on the case] of the criminal offence committed by a freeman.
He said: [The compensation for the slave] differs from the diya of the freeman, because the latter is specified, while the former is equal to his price, just as commodities--such as camels, beans, beasts and the like--are price."[54]
It is noticeable how casually the issues pertaining to slaves are cast in terms of commodities based on qiyas. Such dehumanization of slaves is most regrettable, because it is also inconsistent with the perspective of the Qur'an and the Prophet that has ennobled and sanctified human life. A more egregious application of the laws pertaining to slaves was formulated based on a qiyas of a mathematical ratio of ONE-HALF.Variations of the One-half Rule can be found in almost all orthodox schools of fiqh. According to Imam Malik:
Yahya related to me from Malik from Ibn Shihab that he was asked about the hadd of the slave for wine. He said, "I heard that he has half the hadd of a freeman for drinking wine. Umar ibn al-Khattab, Uthman ibn Affan, and Abdullah ibn Umar flogged their slaves with half of the hadd of a freeman when they drank wine." [Muwatta, Kitab al-Ashribah, #1559]
Here we take a closer and more detailed look at the Hanafi position, once again, from Hedaya.Slaves can marry up to two only:
"It is lawful for a freeman to marry four wives, whether free or slaves; ... It is unlawful for a man who is a slave to marry more than two women; Malik maintains that it is lawful for a slave to marry as many women as a freeman, he holding it as a principle, that a slave, with respect to marriage, is in every particular the same as a free person, insomuch that (according to him) a slave is authorized to marry without his proprietor's consent. -- The argument of our doctors, in this case, is that slavery operates to the privation of one half of the natural privileges and enjoyments, and the legality of four wives in marriage being of this description, it follows that the privilege of a slave extends to the possession of two wives only, in order that the dignity of freedom may be duly supported."[55]
"It is lawful for a freeman to marry four wives, whether free or slaves; ... It is unlawful for a man who is a slave to marry more than two women; Malik maintains that it is lawful for a slave to marry as many women as a freeman, he holding it as a principle, that a slave, with respect to marriage, is in every particular the same as a free person, insomuch that (according to him) a slave is authorized to marry without his proprietor's consent. -- The argument of our doctors, in this case, is that slavery operates to the privation of one half of the natural privileges and enjoyments, and the legality of four wives in marriage being of this description, it follows that the privilege of a slave extends to the possession of two wives only, in order that the dignity of freedom may be duly supported."[55]
For slaves, only two divorce pronouncements:
"The utmost number of divorces, with respect to a female slave, is two, whether her husband be a slave or free; and the same with respect to a free woman is three. -- Shafei has said that, in the number of divorces, respect to be had to the state of the man; that is to say, if the husband be free he is empowered to pronounce three divorces although his wife be a slave; whereas, if he be a slave, he is not authorized to give more than two divorces, although his wife should be a free woman, the prophet having said, "In divorce the state of the husband is to be regarded, and in iddat that of the wife:" -- The divorces of a female slave are two and her iddat is two courses". Secondly, it is the woman who is subject of legality, and this legality entitles her to benefits; but slavery entitles only to half of these benefits; hence it follows that, the divorce of a female slave should not exceed one and a half, but such subdivision of it being impossible, her divorces extend to two. -- As to the saying of the prophet quote by Shafei, that "in divorce the state of the husband is to be regarded," it means no more than that the efficiency of divorce proceeds from him.”[56]
Of course, two divorces for slaves do not constitute one-half of the three divorces as norms for divorces by free men. But as clearly indicated, the same One-half Rule was invoked. So, where does this One-half Rule come from?"The utmost number of divorces, with respect to a female slave, is two, whether her husband be a slave or free; and the same with respect to a free woman is three. -- Shafei has said that, in the number of divorces, respect to be had to the state of the man; that is to say, if the husband be free he is empowered to pronounce three divorces although his wife be a slave; whereas, if he be a slave, he is not authorized to give more than two divorces, although his wife should be a free woman, the prophet having said, "In divorce the state of the husband is to be regarded, and in iddat that of the wife:" -- The divorces of a female slave are two and her iddat is two courses". Secondly, it is the woman who is subject of legality, and this legality entitles her to benefits; but slavery entitles only to half of these benefits; hence it follows that, the divorce of a female slave should not exceed one and a half, but such subdivision of it being impossible, her divorces extend to two. -- As to the saying of the prophet quote by Shafei, that "in divorce the state of the husband is to be regarded," it means no more than that the efficiency of divorce proceeds from him.”[56]
If any of you have not the means wherewith to wed free believing women, they may wed believing girls from among those whom your right hands possess: And Allah hath full knowledge about your faith. Ye are one from another: Wed them with the leave of their owners, and give them their dowers, according to what is reasonable: They should be chaste, not lustful, nor taking paramours: when they are taken in wedlock, if they fall into shame, their punishment is half that for free women. This (permission) is for those among you who fear sin; but it is better for you that ye practise self-restraint. And Allah is Oft-forgiving, Most Merciful. [4/an-Nisa/25]
So, in case of punishment for adultery, the female slaves are to receive punishment that is one-half of what is due to a free married woman. Is there any indication in this verse or elsewhere in the Qur'an, or in Prophetic narrations that this is a general rule to be applied as a norm for all laws pertaining to the slaves? Of course not. Instead of moving toward gradual abolition of slavery, in keeping with the Prophetic legacy, as existence of slavery was marginally normalized, more detailed laws were formulated to deal with issues and problems related to slavery. It was such an abandonment of the Prophetic legacy that in reading the books of Islamic law, such as Hedaya, almost six centuries after the Prophet, nowhere it is mentioned that freeing slaves is a great virtue, or that the Prophet started a movement toward abolition, or that slavery is a denial of the fundamental dignity and sanctity of humanity, or that any slavery-related provisions in fiqh is merely transitional until slavery is eliminated from the face of the earth. Taking the reduced punishment of female slaves in case of adultery and applying it to the domain of marriage, divorce, etc. of slaves is an illustrative case of misapplication of qiyas. Imam Malik challenged and rejected such misapplied qiyas in case of the slaves.
“Malik maintains that it is lawful for a slave to marry as many women as a freeman, he holding it as a principle, that a slave, with respect to marriage, is in every particular the same as a free person, insomuch that (according to him) a slave is authorized to marry without his proprietor's consent.”[57]
Imam Malik's legal viewpoint is commendable that except what has been specified in the Qur'an, there is no basis for such analogical extrapolation in regard to the slaves. However, all orthodox schools, including Maliki, dealt with slavery in the jurisprudence as something normal and ongoing.It is worth mentioning that like in the case of Kafa', orthodox positions have gone to the furthest extent to find even the weakest hadith, and when no textual source has been found, qiyas has been used to draw overstretched conclusions and laws. Please refer to my essay "Islamic Law and the Use and Abuse of Hadith"[58] for other examples where unwarranted conclusions have been drawn and in some cases, such misapplications have seriously undermined the role and position of women in Muslim societies.
We have already cited hadiths from the Prophet, for example, the one from Musnad Ahmad, where the Prophet has clearly commanded: "Set free the slaves (raqaba) ...". [#18672]. The Qur'an also exhorts believers to embrace the virtue of human dignity and freeing people from slavery.
In the following verses, the Qur'an offers freeing of slaves as expiation of certain transgressions, small and big.
Never should a believer kill a believer; but (if it so happens) by mistake, (Compensation is due): If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased's family, unless they remit it freely. If the deceased belonged to a people at war with you, and he was a believer, the freeing of a believing slave (is enough). If he belonged to a people with whom ye have treaty of Mutual alliance, compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, (is prescribed) a fast for two months running: by way of repentance to God: for God hath all knowledge and all wisdom. [4/an-Nisa/92]
God will not call you to account for what is futile in your oaths, but He will call you to account for your deliberate oaths: for expiation, feed ten indigent persons, on a scale of the average for the food of your families; or clothe them; or give a slave his freedom. If that is beyond your means, fast for three days. That is the expiation for the oaths ye have sworn. But keep to your oaths. Thus doth God make clear to you His signs, that ye may be grateful. [5/al-Maida/89]
God will not call you to account for what is futile in your oaths, but He will call you to account for your deliberate oaths: for expiation, feed ten indigent persons, on a scale of the average for the food of your families; or clothe them; or give a slave his freedom. If that is beyond your means, fast for three days. That is the expiation for the oaths ye have sworn. But keep to your oaths. Thus doth God make clear to you His signs, that ye may be grateful. [5/al-Maida/89]
But those who divorce their wives by Zihar, then wish to go back on the words they uttered, (It is ordained that such a one) should free a slave before they touch each other: Thus are ye admonished to perform: and God is well-acquainted with (all) that ye do." [58/al-Mujadilah/3]
The above verses can be treated as encouragement toward emancipating slaves. One of the verses that stands in distinction as a much higher call is the following verse, where, notably, exhortation for freeing slaves is listed before two of the obligatory (fard) duties (pillars) of Islam: prayer (salat) and almsgiving (zakat). It is not righteousness that ye turn your faces Towards east or West; but it is righteousness to believe in God and the Last Day, and the Angels, and the Book, and the Messengers; to spend of your substance, out of love for Him, for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the ransom of slaves; to be steadfast in prayer, and practice regular charity; to fulfil the contracts which ye have made; and to be firm and patient, in pain (or suffering) and adversity, and throughout all periods of panic. Such are the people of truth, the God-fearing. [2/al-Baqarah/177]
The Chapter al-Balad in the Qur'an is particularly relevant for the issue of freedom and slavery. This beautiful Surah begins with the emphatic affirmation of the fundamental freedom of human beings and directly addresses the Prophet, reminding him that he himself is a free person. I do call to witness this City;-
And thou are a FREE PERSON (Hillun) of this City;-
And (the mystic ties of) parent and child;-
Verily We have created man into toil and struggle. [90/al-Balad/1-4]
The climax in the above Surah comes in the following verses, where it is mentioned that God has shown the humanity two highways, representing the truth and falsehood, right and wrong, virtue and vice, good and evil. However, one of these paths is rather steep and people have a tendency to indulge and not to step up to higher standards. And thou are a FREE PERSON (Hillun) of this City;-
And (the mystic ties of) parent and child;-
Verily We have created man into toil and struggle. [90/al-Balad/1-4]
"And (have We not) shown him the two highways?
But he has made no effort on the path that is steep (Aqaba).
And what will explain the Aqaba?
(It is:) freeing the bondsman/slave [raqaba]" [90/al-Balad/10-13]
After mentioning "freeing the slave", Surah al-Balad continues with other things representing that steep path from which people so easily shy away.But he has made no effort on the path that is steep (Aqaba).
And what will explain the Aqaba?
(It is:) freeing the bondsman/slave [raqaba]" [90/al-Balad/10-13]
Or the giving of food in a day of privation;
To the orphan with claims of relationship;
Or to the indigent (down) in the dust.
Then will he be of those who believe, and enjoin patience, (constancy, and self-restraint), and enjoin deeds of kindness and compassion.
Such are the Companions of the Right Hand.
But those who reject Our Signs, they are the (unhappy) Companions of the Left Hand.
On them will be Fire vaulted over (all round).
[90/al-Balad/20]
The message of the Qur'an here is categorical. God has shown the two highways. One of those paths is steep and it involves freeing those in slavery, taking care of those who are in hunger, of all the trusts involving orphans (weak, disadvantages and often powerless), and of the needy, destitute or deprived. The Surah (chapter) ends with the declaration: "Then will he be of those who believe ... Such are the companions of the Right Hand (indicating those who would receive salvation on the Day of Judgment). There is also stern warning against those who would not take the steep path and, instead, will choose the easy path that does not require struggle or sacrifice.To the orphan with claims of relationship;
Or to the indigent (down) in the dust.
Then will he be of those who believe, and enjoin patience, (constancy, and self-restraint), and enjoin deeds of kindness and compassion.
Such are the Companions of the Right Hand.
But those who reject Our Signs, they are the (unhappy) Companions of the Left Hand.
On them will be Fire vaulted over (all round).
[90/al-Balad/20]
One would wonder that the same scholars and jurisprudents who have gone to an utmost extent to find even the weakest hadith (or even without any textual evidence) to draw strong, bold and even outrageous conclusions, they seem to engage in endless excuses and arguments, when it comes to slavery and affirming the fundamental dignity and sanctity of human being. This is another pitiful example of legalism, where the goal or intent (maqasid) of Islam is overlooked, neglected, compromised or even sacrificed.
It is legalistic approach that has misled the scholars and jurisprudents on this issue. Based on the hadiths like in Sahih al-Bukhari 430, cited above, where it is mentioned that Allah will be against anyone "who sells a free person (as a slave) and eats the price," the scholars have arrived at the agreement that turning free persons into slaves is forbidden. Thus, this should be the norm, affirming the fundamental dignity of human beings. However, instead of accepting this as a norm, and treating the existing slavery as a transitional phase until it is uprooted, the scholars and jurisprudents got entrapped in their legalism.
The crux of the issue is not whether there is an explicit text or evidence that Islam prohibits slavery, (even though it can legitimately argued that the all the prohibitions or restrictions by the scholars are not based on any explicit text or evidence as such), the real issue is whether Islam upholds the fundamental dignity and sanctity of human beings and thus affirms freedom as the first (or one of the first)-order condition(s) in Islam. The Qur'an definitely does and the Prophet's life as well as exhortation demands an abolitionist view that was lost in the maze of orthodox legalism.
c. Marriage, Contract and Sale
Marriage is the core of all social institutions. In some societies/religions, such as Christianity, marriage is a sacrament (i.e. "a rite which removes the taboo on sexual intercourse between a man and a woman, while at the same time imposing a lifelong taboo on the intercourse of either of them with a third party"),[59] by which it is made so sacred that it can't be dissolved. That's why the Roman Catholic Church considers divorce as one of the greatest sins and as such, prohibited. In many modern, secular societies, marriage is no more than a contract, and thus no permanence or sanctity attached to it. Indeed, the direction of these societies is such that even marriage is not legally required for the union of two persons. Living together without marriage, having children out of wedlock, even marriage within the same sex, all are being accommodated or legalized.
Marriage in Islam is neither sacramental nor just a contract.
“The distinction between sacred and secular was never explicit in Islam. Any action or transaction has religious implications. Legitimate sex is not defined as evil. Women, at least in doctrine, are not held inferior to men on the spiritual level, since they are not thought of as ‘guilty’ of any offenses from which men were, or are, free and immune. Moreover, marriage in Islam was not conditional on officiation by a priest because, strictly speaking, there was no such office. Neither was religious benediction, though highly recommended for the occasion, a necessary requisite for the validity of the marriage. ... [Thus] 'marriage is a contract, but it is also a covenant.’ "[60]
However, it seems that legalistic tendencies, which has become dominant in Islamic laws, has caused marriage as to be viewed with an overwhelming bias toward contractualism. From dowry to maintenance, or from marital obligations to divorce conditions/procedures, the emphasis on contractual dimension seems to be totally formalistic. The idea of dowry (from the bridegroom to the bride) is not unique to Islam. Indeed, in various societies and cultures, and throughout history, it has been present.
The conception of dowry is usually associated with a particular type of marriage, namely, marriage by purchase. This type of marriage 'has been widely spread throughout the world and throughout history ... [I]t has prevailed in all branches of the Semitic race ... ]But] we should notice that marriage by purchase did not imply the purchase of a piece of property...'"[61]
“The fact that marriage has been for so long accompanied by a 'bride price' or 'groom price' is interesting. The origin of the bridge price, according to a contemporary anthropologist, 'must be sought in a family setup in which a young girl was an economic asset for her father's family. The departure of that girl from her own family was an economic loss, and this was compensated by the bride price. From the point of view of the bridegroom's family, the acquisition of a wife meant the addition of a pair of working hands in exchange for the amount paid over the bride's family.' This may explain the origin of the custom, but it can hardly explain its continuation where there are no such extended families, or where the woman herself is the recipient of dowry.”[62]
Al-Ati provides a detailed exposition of various economic and other modern theories to explain the custom of dowry. However, his analysis shows that none of those theories helps explain and understand the Islamic position on dowry. But let's first identify some salient aspects of dowry (mahr) in Islam. “Dowry is used here to designate what a Muslim groom gives to his prospective bride. It is her personal property which she is empowered to waive, reduce, return to her husband, or dispense with as she pleases. It is enjoined by the Qur'an, the Traditions of the Prophet, and the consensus of Muslims. It may consist of money, property, movable objects, or services rendered to the bride herself. There is a Tradition that a Companion of the Prophet wanted to marry a certain woman but had nothing to offer her in dowry. The Prophet asked him to teach her whatever he knew of the Qur'an, and that sufficed as a dowry. A certain Abu Talhah proposed to a woman who, in reply to his proposal, said: 'A man of your stature is not to be rejected; but you are a non-Believer and I am a Muslim. It is unlawful for me to marry you. If you embrace Islam, that will be my dowry and no more will I ask of you.' He then embraced Islam and that was her dowry. Similarly, if a master wishes to marry his slave girl and offers her freedom as a dowry, both the offer and the marriage are valid.”[63]
While Islam has mandated mahr, but it has not set any minimum or maximum. This is important in understanding the inability of most theories to explain Islam's position on mahr.“Since Islam has set neither a dowry minimum, according to the majority of jurists, nor a dowry maximum, in the opinion of all jurists, why did it prescribe it in the first place? We have previously noted several theories concerning the institutionalization of dowry. But none of these by itself seems adequately account for dowry in Islam.”[64]
The theory that dowry is a compensation to the father or his substitute for the loss of the girl's economic services is inapplicable for the primary reason that dowry can be such a nominal value that it would hardly be considered as any compensation to the guardian. Also, Islam mandates that the mahr belongs exclusively to the bride. It can't be claimed or usurped by anyone else, including bride's parents or other guardians. “It is sometimes suggested that Islam has enjoined dowry in order to safeguard the economic rights of the wife after marriage and to strengthen her financial position. This view can have great explanatory value only where the dowry is large and when such economic gains are manifest functions of marriage. But this does not represent the majority of cases.”[65]
There are also theories that dowry (from bridegroom to bride) serves "as an obstacle to the dissolution of the union for frivolous reason" or that "it worked as a deterrent to polygyny." [al-Ati, p.68] However, such theories do not hold for most marriages in Muslim societies, where dowry is not really that significantly large to serve the said purpose.So, what are some of the religious explanations by the Muslim scholars and jurists?
“Muslim jurists of later centuries have held the technical view that dowry is enjoined in return for the man's right, at least potentially, to have legitimate access to cohabitation with the woman in question. She is entitled to dowry because she has consented to marriage and made herself accessible. Much discussion among the jurists has centered on this issue. But the exponents of this view appear to assume or to infer that women have no sexual desires and needs of their own, that gratification is not reciprocal, that sex is a cheap commodity in view of the permissibility of nominal dowries, and that marriage is little more than a commercial transaction. That list of assumptions and inferences may be extended. Yet, these seem contrary to the bio-psychological facts and to the very idea of marriage which is depicted in the Qur'an (e.g., 30:21) as a shelter of peace and comfort, and as a means of mutual love and mercy."[66]
I don't know how many Muslims get into marriage, where the marrying parties think that they are getting into a commercial transaction: the bridegroom thinking that he is involved in a purchase and the bride thinking that she is involved is a sale. Even without any scientific survey or scientific study, it can be safely asserted that like my beloved wife, most woman would be nauseated and repulsed at the thought of marriage as selling themselves. Let alone the women, as a man, I find the idea of any kind of sale/purchase in regard to marriage quite repugnant. Unfortunately, reading the legalistic works and positions of our jurists and scholars, one can't but have the distinct impression that they have reduced marriage into a commercial transaction. “A woman may refuse to admit her husband to a carnal connection until she has receive her dower of him, so as that her right may be maintained to the return, in the same manner as that of her husband to the object for which the return is given, as in sale.”[67]
What is here advanced proceeds upon a supposition of the whole dower, or a certain portion of it, being Moajil, or prompt; but if the whole be Mowjil, or deferred, the woman is not at liberty to refuse the embraces of her husband, as she has dropped her right by agreeing to make her dower Mowjil, -- the same as in the case of sale, where, if the price of the article sold be made deferrable, the seller is not at liberty to detain the article sold on account of the price."[68]
"It is proper to observe, that where the woman refuses to admit the husband to a repetition of the carnal act, as above stated, yet she has, nevertheless, (according to Haneefa) a claim to her subsistence, as her refusal does not, in any case, proceed from any stubbornness or disobedience, since it is not exerted in resistance to a right, but rather in maintenance of one. -- The two disciples hold that she is not entitled to any subsistence; -- and their argument on this occasion is, that the sole object of the contract has been duly delivered to the husband, either by the single carnal act, or by the single complete retirement, as aforesaid; on which account it is that her right to her whole dower is confirmed and established, and consequently no right of further detention of her person remains with her; as in a case of sale, where the seller having delivered the article sold to the purchaser, before receiving the price, has no farther right over it."[69]
"If a man marries two women by one contract, one of whom is lawful to him, and the other prohibited, his marriage with the one who is lawful holds good, but that with the other is void, because in that only a cause of nullity is found: contrary to where a man puts together a freeman and a slave, and sells them by one agreement, as such sale is null with respect to both, because sale is rendered null by invalid condition, and the consent to the contract of sale is required with respect to the free person, in order to the legality of it with respect to slaves."[70]
So, how did the jurists draw this "sale" connection? The answer is qiyas. Marriage is a contract, and so is purchase/sale (commercial transactions or exchanges). Therefore, in enforcing the right of the husband to have his wife in his bed, in denying maintenance to the wife when she refuses to share bed with his husband, or in determining a lawful/valid and unlawful/invalid marriage, the jurists have found tremendous analogical parallel in purchase/sale transactions.“It is interesting to note that the term mahr (bride price) which usually connotes commercialization of marriage, is not used in the Qur'an at all. It occurs very infrequently in the Traditions of the Prophet; when it does, it is usually accompanied by other terms such faridah (God-given right), or sadaq (which is connected with a root word meaning marriage-gift, charity, friendship, fidelity, truth, etc.). The jurists have used these terms interchangeably as denoting the God-given right of dowry. But it is not certain whether in these interchangeable usages the traditional connotations of the term mahr were sublimated to the moral and charitable denotations of terms like sadaq, faridah, and so on; or whether these terms themselves took on the traditional connotations of mahr. A review of the classical legal texts would seem to indicate that where it occurs, the terms mahr is used in a sublime moral sense indistinguishable from the meaning of sadaq, faridah, and similar terms. But the law books and usages of subsequent centuries seem to use mahr and other alternate terms in a sense very much akin to the traditional meaning of bride-price. This reversal of meaning was apparently correlated with a decline in juristic creativity and the status of women and also with a misconception of the idea of marriage.”[71]
Neither the theories offered by social scientists nor the ones underlying our jurists and scholars help us understand and properly appreciate the role of mahr in Islam. Acknowledging the need for exploration, al-Ati offers some suggestions that are quite relevant and meaningful.“Dowry is probably a symbolic expression of the groom's cognizance of the economic responsibilities of marriage and of his readiness to discharge all such responsibilities subsequent to marriage. It may be thought of as a manifest assurance on his part that the bride's economic security and rights will be maintained. It is a symbolic acknowledgment that he does or will dissociate the purpose of marriage from the designs of economic exploitations. For 'instinctive' or cultural reasons, it is usually the women who need reassurance of the man's intentions and interest. This reassurance may require more than verbal expressions of love and seriousness on the man's part, and dowry may be the tangible symbol of such love and seriousness. To the bridge, it is a token of the groom's desire to enter into a union with her. To her family, it is a gesture of mutual friendship and solidarity, an assurance that their daughter will be secure and in good hands. However, there may be other symbolic meanings of dowry, as has been mentioned earlier. Nor is it to be overlooked that what is being suggested here is conceptualized in terms of the religious and moral ideals which may or may not be in fact fully implemented. There is no sufficient ground to assume that the actual has always coincided with the ideal in this case.”[72]
d. Marriage, Contract and LeaseThe focus of the preceding segment was to demonstrate how under the influence legalism and literalism sometimes our scholars and jurists have gotten carried away in using qiyas. By drawing the analogical connection between contracts and sales, and then applying it to marriage was not appropriate. However, there are other related aspects that are worth mentioning.
Some such aspects of Islamic laws are simply impractical and some are unfair. For example, orthodox schools require that as part of the marriage, the wife is entitled to her own, exclusive dwelling.
“It is incumbent upon a husband to provide a separate apartment for his wife's habitation, to be solely and exclusively appropriated to her use, so as that none of the husband's family, or others, may enter without her permission and desire, because this is essentially necessary to her, and is therefore her due the same as maintenance, the word of God appoints her a dwelling house as well as a subsistence: and as it is incumbent upon a husband to provide a habitation for his wife, so he is not at liberty to admit any person to a share in it, as this would be injurious to her, by endangering her property, and obstructing her enjoyment of his society ..."[73]
“A wife is entitled to lodging in a house unoccupied by members of the husband's family.”[74]
Thanks God that our scholars and jurists did not explicitly require for every Muslim to be rich or at least well-to-do, because the economic condition of the Muslim world is that the vast majority is surviving merely with a roof over the entire family, instead of having separate rooms for even the spouses and children, let alone a separate, exclusive room for the wife. Interestingly, women hardly knows about such a grand right of them and, understandably, there is hardly any effort on the part of our scholars and jurists to educate the women about this right and "requiring" the men to honor this right. Notably, there is no authentic and explicit textual evidence to offer such specified right to an exclusive dwelling for the wife, even though it can be safely asserted that Muslim wives would be deeply gratified by having such a right honored.However, lest the Muslim women get carried away by learning and insisting on such a valuable right, legalism and literalism that have pervaded laws in the name of Islam have some other surprises (or shockers!) for them as well. Assigning such exclusive dwelling does not mean that the wife owns such a dwelling. Actually, the husband has some far-reaching controls over such dwelling.
“A husband is at liberty to prevent his wife's parents, or other relations, or her children by former marriage, from coming in to her, as her apartment or habitation is his property, which he may lawfully prevent any person from entering; but he cannot prevent them from seeing and conversing with her whenever they please ... Some have said that he cannot prohibit them from coming in to her, any more from conversing with or seeing her.”[75]
Just as assignment of an exclusive dwelling for the wife is a pleasant surprise to most women (and possibly a shocker to most men!), there are some real shockers for women. According to Islamic law, wives are entitled to certain maintenance (nifqa). But what does it consist of?“When a woman surrenders herself into the custody of her husband, it is incumbent upon him thenceforth to supply her with food, clothing, and lodging, whether she be a Muslim or an infidel, because such is the precept both in the Koran and in the traditions ... “[76]
“Nafaqa literally means that which a man spends over his children; in law it means feeding, clothing and lodging; in common use it signifies food.”[77]
What about if the wife gets or becomes sick, especially on a long-term or even permanent basis? Well, the law is very clear. The wife is legally entitled only to food, clothing and lodging. Notably, there is no specific or detailed textual evidence to support such narrow definition of maintenance. Most Muslim men and women might be surprised or shocked at learning this, but Islamic law not only does not require the husband to take care of sick wife, but also not entitled to maintenance (food, clothing, lodging), especially if the wife cannot fulfill the primary basis for the contract to be able to carnally satisfy the husband!!!“If a woman falls sick in her husband's house, she is still entitled to a maintenance. This is upon a principle of benevolence, as analogy would suggest that she is not entitled to maintenance, where she falls sick so far as to be incapable of admitting her husband to the conjugal embrace, since in this case she cannot be deemed in custody for the purpose of enjoyment.”[78]
Even though there are contrary opinions, this is not just another example of misapplication of qiyas, but also it is important to further understand the legalistic and literalist propensity to which Islamic laws fell victim. In a segment "Maintenance in Sickness," al-Ati elaborates on this issue.“The Qur'an and the Sunnah have enjoined care for and kindness to the wife. Yet the application of this general principle to the case of a sick wife has stimulated curious arguments, differences or opinion, and legal niceties. According to some jurists, a sick wife who, on account of her failing health, is unable to discharge her marital duties has no legal right to maintenance by the husband.”[79]
“The problem of maintenance of a sick wife is provocative, although it seems more apparent than real, that is, more of an academic exercise than a practical issue. It probably indicates that the later in time, the farther some jurists drifted away from the spirit of the law and its ethical foundations. It is curious that neither the Qur'an nor the Sunnah raised the problem in any way that can be likened to the approach of those jurists. Moreover, none of the disputants produces any authoritative evidence in support of his argument against the adversaries.”[80]
Well, it is not just maintenance, sick wives are not entitled to the cost of medical care, according to the majority of jurists. So, on what basis the jurists, generally speaking, deny the medical costs, and even maintenance? The answer is qiyas.“Related to the problem of a sick wife's maintenance is the cost of her medical care. The formal consensus, not the unanimous opinion, of the majority of the jurists is that the husband is not legally responsible for the cost of medicine, the physician's fee, etc. Some jurists, however, maintain that if the husband is financially comfortable and the cost of medical care is modest, he is responsible for it. Others argue that even if he is not legally responsible for the cost, it is still his religious duty to bear the responsibility out of compassion, courtesy, or in conformity with the social norms. Those who exempt the husband from the responsibility do not consider the cost of medical care to be part of the obligatory maintenance. They draw an analogy between wifedom and leased property; tenants are not responsible for the repairs and improvement of the premises. Their obligation is to pay only the rent; the rest is the owner's charge. Like a tenant, a husband is not responsible for the cost of any treatment his wife may undergo to restore or improve her health.”[81]
The Qur'anic commandment for abstention from all activities when the call for the Friday prayer is made has also been used as a basis of qiyas extending to marriage."Sale of goods, or conducting business, during the time of the Friday congregational prayer is prohibited by the following verse of the Qur’an: “O you who believe! When the call is proclaimed to prayer on Friday, hasten earnestly to the remembrance of God, and leave off sales transactions.”*** The ‘illah of this prohibition is that which, from the transaction of sale, detains one from proceeding to the Friday prayer and the potentiality of alienating one from the Friday prayer. This ‘illah has been deemed to be present in the transactions of lease, of mortgage, and of marriage. Therefore, the hukm upon these transactions during the Friday prayer is the same as that of sale.***"[82]
It is no wonder that many women are turning against the so-called orthodox Islamic laws, while they still feel attached to Islam that is embodied in the Qur'an and the Sunnah. Many Muslim men are also finding such laws in much of its details, especially using qiyas, a fallible methodology of human reasoning, asynchronous with Islam itself. Contemporary Muslim scholars, especially who are not trained in the orthodox tradition, are also challenging such legalism.“[C]ontemporary Muslim scholars are impatient with these formalistic interpretations of the law which, on the one hand, enjoin the husband to furnish with maids--an obvious luxury--but, on the other, exempt him from the responsibility for her medical care. These scholars, this is plain mockery, casuistry, and abuse of the purposes of the law.
Moreover, such formal interpretations contain no authoritative evidence. Nor do they seem compatible with the ordinances of the Qur'an and the Sunnah, which unequivocally call for kindness, compassion, and consideration. Here again, the question arises: were these jurists fighting windmills or tackling a real problem? How could they overlook the strong directives of the Qur'an and the Sunnah, and focus, instead on such a formalistic approach?
The view that a husband may be exempted from the obligation of maintenance and payment for an indisposed wife's medical care cannot be explained in terms of any authoritative text from the Qur'an or the Traditions. Not only is there no such possible explanation, but also the very view is perhaps one of the clearest instances of 'deviation' from the orientation of the basic sources of Islamic law.”[83]
It is important to understand that misapplications of qiyas is not an isolated phenomenon. Al-Ati offers some insights about the directions the juristic works took over the centuries.“Aside from the possibility of intellectualistic riddles or formal casuistries, this view, together with the accompanying analogy between wifedom and 'leased property' was probably a reflection of certain social and intellectual trends. ...
The demographic composition of the Muslim population was growing diverse as well as complex. An urban life style on a new large scale, with the concomitant relative anonymity and individuality, was increasingly in vogue. Under such circumstances, marital bonds would be regarded not so much as alliances of families, clans, or tribes or as "companionship" ties as individual 'contracts' largely oriented to specific formal exchanges of service. Women, as a rule, became increasingly secluded in the background and excluded from the world of men. ... With the traditional mother role so depreciated, and with the companion role so contested by other rivals, probably little was left for the normal housewife other than being an object of sexuality. Even that role was not confined to her exclusively.”[84]
The legal treatises reflect such "seclusion of women" in their works. When getting married, does a wife regard or the husband expect that the wife would be "surrendering" to the "custody" of the husband? Or, does any woman expect that marriage for her is basically embracing "confinement"? Well, to the jurists, that's the way they understood marriage and presented their legal interpretations in that light.“When a woman surrenders herself into the custody of her husband, it is incumbent upon him thenceforth to supply her with food, clothing, and lodging, whether she be a Muslim or an infidel, because such is the precept both in the Koran and in the traditions; and also, because maintenance is a recompense for the matrimonial restraint.”[85]
The word in Arabic is ahbas, derived from habasa. The characterization in the translation of Haskafi's Durr-ul-Mukhtar is more explicit and vivid.“[M]aintenance is compensation for her confinement.”[86]
As women became secluded in society, contrary to the legacy of the Prophetic period, and as women became "confined" by juristic discourses, Islamic legal discourse became confined and mired in legalism and literalism.e. Peace Treaties with Non-Muslims
Even though Islam is maligned for its aggressiveness in dealing with others, in principle Islam seeks peace and justice and in reality, too, the Prophet has not taken any offensive campaign of aggression.
In keeping with the universally recognized principles, Islam permits self-defense. That does not mean that after the period of the Prophet and the rightly guided caliphs, throughout the history, Muslims haven't engaged in aggressive campaigns. But any such campaign is repudiated by the Qur'an. Islam does not allow any offensive aggression.
To those against whom war is made, permission is given (to fight), because they are wronged;- and verily, Allah is most powerful for their aid;
(They are) those who have been expelled from their homes in defiance of right,- (for no cause) except that they say, "our Lord is Allah". Did not Allah check one set of people by means of another, there would surely have been pulled down monasteries, churches, synagogues, and mosques, in which the name of Allah is commemorated in abundant measure. Allah will certainly aid those who aid his (cause);- for verily Allah is full of Strength, Exalted in Might, (able to enforce His Will). [22/al-Hajj/39-40]
Islam's concern is not merely to protect mosques, but as part of its universalistic principle, it is concerned about justice and peace for all, including churches, synagogues, temples, etc. There are verses that pertain to a situation, when Muslims find war unavoidable or are engaged in war. If Muslims are engaged in war and can't avoid it, they are to face the adversaries with valiance and determination and do everything possible to prevail over the adversaries. Even in such case, Islam laid strict norms that civilians (children, women, old, and non-combatants) must not be harmed; properties of others must not be destroyed; and so on. Of course, there are practical issues of modern times involving weapons of mass destruction that must be taken into consideration. [AbuSulayman, p. 68] However, even when Muslims have to engage in war, at any genuine signal of peace, Muslims MUST reciprocate.But if the enemy incline towards peace, you (also) incline towards peace, and trust in Allah: for He is One that hears and knows (all things). [8/al-Anfal/61]
Indeed, let alone initiating any aggression, and reciprocating to peace gestures, Islam holds the role of peacemaking among others very high.And make not Allah's (name) an excuse in your oaths against doing good, or acting rightly, or making peace between people (an-Nas; mankind); for Allah is One Who hears and knows all things. [2/al-Baqarah/224]
Of course, all such principles and norms are in the context of not just peace, but also justice. In general, Muslims must not have any problem with anyone - Jews, Christians, Buddhists, atheists, communists, animists - except those who practice oppression and injustice.And fight them on until there is no more Tumult or oppression, and there prevail justice and faith in Allah; but if they cease, Let there be no hostility except to those who practise oppression. [2/al-Baqarah/193]
One of the ways Muslims try to avoid wars and conflicts is entering into long-term treaties for peace (and even cooperation for common good).It is not righteousness that ye turn your faces Towards east or West; but it is righteousness- to believe in Allah and the Last Day, and the Angels, and the Book, and the Messengers; to spend of your substance, out of love for Him, for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the ransom of slaves; to be steadfast in prayer, and practice regular charity; to fulfil the contracts/treaties which ye have made; and to be firm and patient, in pain (or suffering) and adversity, and throughout all periods of panic. Such are the people of truth, the Allah-fearing. [2/Al-Baqarah/177]
Islam places stringent demand on Muslims to stand by contracts, treaties and even promises. At the same time, it also takes very seriously when others betray or break the treaties/covenants, especially unilaterally and abruptly at the detriment of the Muslims.For the worst of beasts in the sight of Allah are those who reject Him: They will not believe.
They are those with whom thou did make a covenant, but they break their covenant every time, and they have not the fear (of Allah).
If ye gain the mastery over them in war, disperse, with them, those who follow them, that they may remember. [8/al-Anfal/55-57]
What is important here is that Islam does not want war; rather it wants peace and justice. Toward that end, Islam enjoins upon Muslims to find ways to establish and sustain peace and justice through treaties. They are those with whom thou did make a covenant, but they break their covenant every time, and they have not the fear (of Allah).
If ye gain the mastery over them in war, disperse, with them, those who follow them, that they may remember. [8/al-Anfal/55-57]
However, when one reads the classical and traditional juristic discourses in Islam, the picture changes rather dramatically.
"... al-Shafi'i, in dealing with foreign relations, advises the Muslim rulers to attack the mushrikun [polytheists] in their country at least once a year if nor more often, and not to accept a truce more than ten years. ..."[87]
What? Did the Prophet ever put any time limit on a treaty, especially as a norm? Absolutely not. In this case, not just permission, but Muslims are being advised to attack non-Muslim countries once a year or more often! If that sounds incredible and shocking, it is once again due to qiyas gone haywire. But this time, not based on anything in the Qur'an or the Hadith advising as such. Rather, based on misconstrued Sunnah (the practice of the Prophet), it is through qiyas: "... analogy with the Sunnah of the Prophet, since the latter was engaged with his enemy in a battle at least once a year and did not accept a truce for more than ten years."[88]
That the Prophet's engagement in battles averaged out almost once a year is the basis for the qiyas in an attempt to set some norm. Of course, there are variant juristic positions, such as the Hanafi position contradicting the one of Shafi'i [AbuSulayman, p. 17] However, that our best of the scholars and jurists, in some but important respects, thought or argued like this needs to be known and noted. The real issue, however, is that the influence of such positions have not remained confined in the classical treatises of the past. These positions, and more importantly, premises, attitude, and understanding underlying such positions, continue to influence the traditional Muslim minds. Dr. AbdulHamid AbuSulayman laments:It is understandable for the classical jurists to have engaged in literal analysis, a word-for-word and an issue-for-issue comparison and analogy in their arguments along the lines of these traditions, but when contemporary jurists function in the same manner and even repeat the old instructions word for word, there is obviously a lack of comprehension of the changes that have taken place."[89]
ConclusionAnalogical reasoning is a commonly used method by human beings in various areas of knowledge. It has also been employed by Islamic scholars and jurists, and in many cases, brilliantly and effectively. However, in certain cases, especially carried away by legalism and literalism, qiyas has led to conclusions and laws that are inconsistent with Islamic precepts, and thus unwarranted. That doesn't mean that there is a general problem with qiyas as a methodology. It can always remain a valid component of the toolkit to formulate laws and codes. However, it is important to note that the scholars and jurists must be humble enough to disclose and disclaim that such exercises are fallible and they also must be extra careful in not getting carried away with such tools of human reasoning. Furthermore, this discussion about qiyas is also pertinent in the context of the discourse about Shari'ah, where Shari'ah is presented as divine and immutable. Qiyas in particular is illustrative of the fact that there is hardly anything divine about it, as it is essentially an exercise in human reasoning and many details of so-called Shari'ah is based on qiyas.
Dr. Abdulhamid Abusulayman makes another important point about the micro-level application of qiyas to piecemeal issues, without any systemic approach or perspective.
“Qiyas can no longer be partial or call for an issue-by-issue approach. It has to be systematic, conceptual, abstract, and comprehensive.”[90]
Overuse or inappropriate exercise in Qiyas, especially the search of illah delinked from hikmah or rationale/wisdom and lacking a systemic perspective, has contributed toward rigidity, legalism and dysfunctionality.[91] Qiyas or analogical reasoning will remain a valuable part of the Islamic methodology of jurisprudence. However, the authoritativeness attributed toward the method, which is essentially human reasoning, and thus speculative and fallible, and toward the outcomes of qiyas has to be brought to a realistic, defensible level.Mohammad Hashim Kamali, an eminent contemporary scholar of Islamic jurisprudence remarks :
"Wisdom and application of 'good sense', rather than a mechanical or fixed set of logical rules, is recommended in the determination of ratio decidendi. ...But the rigidity that the Muslim jurist tried to avoid in this instance was visited upon him through the imposition of burdensome technicalities on qiyas. The correct advice in both instances is surely to avoid rigid conformity to precedent at the expense of losing sight of the broad purpose and objective of the law."[92]
The specific examples cited in this essay should not be taken as disrespect to our past scholars and jurists. For all the contributions they have made in their effort to systematizing various codes and laws, they have made vital contributions in facilitating the practice of Islam by Muslims in an organized way. However, they were fallible. To be balanced on our part, instead of disrespecting them or their works for some misapplications, the contemporary generation of scholars should follow the footsteps of the original scholars of Islam. These original scholars in every epoch have approached the pertinent fields with the highest regard to our past generations and their contributions, and at the same time, they also have never wavered to identify the mistakes, whenever applicable, of our past scholars, and turn to the Qur'an and the Prophetic legacy as well as to human reasoning and conscience, to offer newer or improved perspectives and articulations.The same applies here. The vast treasure of knowledge and wisdom left behind by our earlier generations of brilliant and noble scholars must be respected and learned, but also in a forward-looking manner, the new generation of scholars must see the current period and endeavor to shape the future not merely through the lenses of the past generation of scholars and their works, but through the lenses of the Qur'an and the Prophetic legacy. By doing so, we don't discard or disrespect our earlier generations. Instead, that way we endear and pay homage to them, by following their footsteps. Thus, we need a past-enriched, but forward-looking approach and perspective, guided by the Qur'an and Sunnah.
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Mustafa Awliya'i. Outlines of the Development of the Science of Hadith [Available online]
Kevin Dunbar. Analogical Reasoning [available online]
Mohammad Fadel. Book Review of Analytical Reasoning in Islamic Jurisprudence: A Study of Juridical Principle of Qiyas by Ahmad Hasan, The Journal of Law and Religion, Vol. 15, Issue 1/2, 2000-2001, pp. 359-362.
Mohammad Omar Farooq _1. Rape and Article: "Rape and Hudood Ordinance: Perversion of Justice in the Name of Islam" [unpublished; May 2006]
Mohammad Omar Farooq _2. "The Doctrine of Ijma': Is there a consensus," [Unpublished; June 2006]
Mohammad Omar Farooq_3. "Fundamental Human Dignity and the Mathematics of Slavery" [Unpublished essay, available online]
Mohammad Omar Farooq_4. "Freedom and Choice: The First-Order Condition of Islam," Message International [July 2004]
Mohammad Omar Farooq _5. "Islamic Law and the Use and Abuse of Hadith" [unpublished; June 2006]
Mohammad Omar Farooq_6. "Riba, Interest and Six Hadiths Do we have a Definition or a Conundrum" [Unpublished essay, available online]
Ahmad Hasan. The Doctrine of Ijma': A Study of the Juridical Principle of Consensus [
Ahmad Hasan. Analogical Reasoning in Islamic Jurisprudence: A Study of the Juridical Principle of Qiyas [
Masood Hasan. "Women's personal law board," The Milli Gazette Online [16-28 Feb 2005]
Muhammad Alauddin Haskafi. Durr-ul-Mukhtar [
Ibn Majah. Sunan Ibn Majah (trans.) [
Mohammad Hashim Kamali. Principles of Islamic Jurisprudence [
Burhan al-Din al-Marghinani, Al-Hedāya (2nd ed.;
Sayyid
Umar Moghul. "Approximating Certainty in Ratiocination: How to Ascertain the 'Illah (Effective Cause) in the Islamic Legal System and How to Determine the Ratio Decidendi in the Anglo-American Common Law," The Journal of Islamic Law, Fall/Winter 1991.
Muhammad Muslehuddin. Philosophy of Islamic Law and Orientalists [Kazi Publications, 1985]
Nabil Shehaby. "Illa and Qiyas in Early Islamic Legal Theory," Journal of American Oriental Society, Vol. 102, Issue 1, Jan-Mar 1982, pp. 27-46.
[1] Mohammad Omar Farooq_1. Rape and Article: "Rape and Hudood Ordinance: Perversion of Justice in the Name of Islam" [unpublished; May 2006]
[2] Masood Hasan. "Women's personal law board," The Milli Gazette Online [16-28 Feb 2005]
[3] Ahmad Hasan. The Doctrine of Ijma': A Study of the Juridical Principle of Consensus [New Delhi, India: Kitab Bhaban, 2003], p. 21.
[4] AbdulHamid A. AbuSulayman. The Islamic Theory of International Relations: New Directions for Islamic Methodology and Thought [Herndon, VA: The International Institute of Islamic Thought, 1987], p. 2.
[5] Mohammad Omar Farooq _2. "The Doctrine of Ijma': Is there a consensus," [Unpublished; June 2006]
[6] Ahmad Hasan. Analogical Reasoning in Islamic Jurisprudence: A Study of the Juridical Principle of Qiyas [Islamabad, Pakistan: Islamic Research Institute, 1986], p. 424.
[7] Yusuf al-Qaradawi. The Lawful and The Prohibited in Islam [Delhi, India: Hindustan Publications, Undated], pp. 14-15.
[8] AbuSulayman, p. 66.
[9] Muhammad Muslehuddin. Philosophy of Islamic Law and Orientalists [Kazi Publications, 1985]. p. 135.
[10] Al-Shafi'i. Al-Shafi'i's Risala: Treatise on the Foundations of Islamic Jurisprudence [translated by Majid Khadduri; Cambridge, UK: The Islamic Texts Society, 2nd Edition, 1987], p. 78.
[11] Sayyid Abul Ala Maududi. Islamic Law and Constitution, 8th ed. [Lahore, Pakistan: Islamic Publications, 1983], p. 60.
[12] Hasan, 1986, p. 425, quoting Ibn Qutaybah, Ta'wil Mukhtalif al-Hadith, Cairo, Matba'ah Kurdistan al-Ilmiyyah, 1326 AH, p. 65.
[13] Muslehuddin, p. 136.
[14] Farooq_2, op. cit..
[15] See Chap. 3 in Hasan, 1986.
[17] Hasan, 1986, p. 454; referring to Ibn Hazm' Mulakhkhas Ibtal al-Qiyas wal-Ra'y, Cairo, Matba'ah Jami'ah Damishq, 1960, p. 14.
[18] Vol. 9, Book of Holding Fast to the Qur'an and Sunnah, chapter 7 title - Bab ma yudhkaru min dhamm al-ra'y wa takalluf al-qiyas. p. 305, trans. by Dr. Muhammad Muhsin Khan; and chapter 8 title - wa lam yaqul bi ra'y wa la bi-qiyas, p. 307.
[19] Muslehuddin, p. 137.
[20] Hasan, p. 130.
[21] Muslehuddin, p. 148.
[22] Muslehuddin, p. 137.
[23] Muslehuddin, p. 140.
[24] "It appears that the term 'illah (effective cause) did not come into use in juristic reasoning up to the time of al-Shafi'i. It is also not traceable in the writings of the early schools of law. Al-Shafi'i. Al-Shafi'i terms the common factor sometimes ma'na (idea) and at other times asl (basis). The term 'illah must have been employed in the post-Shafi'i period." [Hasan, 1986, p. 12]
[25] Nabil Shehaby. "Illa and Qiyas in Early Islamic Legal Theory," Journal of American Oriental Society, Vol. 102, Issue 1, Jan-Mar 1982, pp. 27-46, pp. Shehaby, pp. 37-39.
[26] Mohammad Fadel. Book Review of Analytical Reasoning in Islamic Jurisprudence: A Study of Juridical Principle of Qiyas by Ahmad Hasan, The Journal of Law and Religion, Vol. 15, Issue 1/2, 2000-2001, pp. 359-362, p. 360.
[27] Kamali, p. 265-266.
[28] Shehaby, p. 42.
[29] Moghul, p. 19.
[30] Hasan 1986, p. 2, referring to Al-Ghazali, Maqasid al-Falasifah, op. cit., pp. 39-40.
[31] Hasan, 1986, p. 128.
[32] The translation of the Hedaya edition, from which the following has been taken, is poor and in archaic English. Also, transliteration of some of the terms and names are not easily recognizable. Hence, some substitutions or annotations have been made to make the excerpts understandable.
[33] Burhan al-Din al-Marghinani, Al-Hedāya (2nd ed.; London, 1870), translated by Charles Hamilton [Karachi, 1989], p. 110.
[34] Ibn Majah, Vol. 3, #1968.
[35] For a detailed discussion about this matter, see Farooq _3. "Fundamental Human Dignity and the Mathematics of Slavery" [Unpublished essay, available online]
[36] Al-Marghinani, Hedaya, p. 112.
[37] See Farooq_3, op. cit..
[38] Al-Marghinani, Hedaya, p. 112.
[39] Al-Marghinani, Hedaya, p. 113.
[40] Al-Marghinani, Hedaya, p. 114.
[41] Al-Marghinani, Hedaya, pp. 111-112.
[42] Al-Marghinani, Hedaya, p. 114.
[43] Muhammad Alauddin Haskafi. Durr-ul-Mukhtar [New Delhi, India: Kitab Bhavan, 1992], p. 50.
[44] Haskafi, p. 50.
[45] Haskafi, p. 50.
[46] Haskafi, p. 52; in the footnote, it is clarified: "According to Hanafis, a marriage between a Hanafi male and a Shafei female is valid, but according to the Shafei sect it is invalid - the Raddul Muhtar, vol. 2, p. 351.
[47] Al-Marghinani, Hedaya, p. 110.
[48] Haskafi, p. 48.
[49] Vol. 2, pp. 562-563, referring to Awn al-Ma'bud, II, 197.
[50] Hammudah Abd Al-Ati. The Family Structure in Islam [Indianapolis, Indiana: American Trust Publications, 1977], pp. 84-97.
[51] Al-Ati, p. 88.
[52] Mohammad Omar Farooq_4. "Freedom and Choice: The First-Order Condition of Islam," Message International [July 2004]
[53] Farooq_3, op. cit.,
[54] al-Shafi's Risala, p. 321.
[55] Al-Marghinani, Hedaya, p. 88.
[56] Al-Marghinani, Hedaya, p. 212.
[57] Al-Marghinani, Hedaya, p. 88.
[58] Mohammad Omar Farooq _5. "Islamic Law and the Use and Abuse of Hadith" [unpublished; June 2006]
[59] Al-Ati, p. 56.
[60] al-Ati, p. 59.
[61] al-Ati, p. 62.
[62] al-Ati, pp. 62-63.
[63] al-Ati, pp. 64-65.
[64] al-Ati, p. 67.
[65] al-Ati, pp. 68-69.
[66] al-Ati, p. 68.
[67] Al-Marghinani, Hedaya, p. 150.
[68] Al-Marghinani, Hedaya, p. 150.
[69] Al-Marghinani, Hedaya, p. 151.
[70] Al-Marghinani, Hedaya, p. 92.
[71] al-Ati, p. 69.
[72] al-Ati, p. 70.
[73] Al-Marghinani, Hedaya, pp. 401-402.
[74] Haskafi's Durr-ul-Mukhtar, p. 322.
[75] Al-Marghinani, Hedaya, p. 402.
[76] Al-Marghinani, Hedaya, p. 392.
[77] Haskafi's Durr-ul-Mukhtar, p. 316.
[78] Al-Marghinani, Hedaya, p. 396.
[79] Al-Ati, p. 181.
[80] Al-Ati, p. 152.
[81] al-Ati, p. 152.
[82] Umar Moghul. "Approximating Certainty in Ratiocination: How to Ascertain the 'Illah (Effective Cause) in the Islamic Legal System and How to Determine the Ratio Decidendi in the Anglo-American Common Law," The Journal of Islamic Law, Fall/Winter 1991, pp. 15-16.
[83] al-Ati, p. 155.
[84] al-Ati, pp. 154-155.
[85] Al-Marghinani, Hedaya, p. 392.
[86] Haskafi, p. 316.
[87] AbuSulayman, p. 68, quoting al-Shafi'i, Al-Umm, vol. IV, pp. 90-91; and Ibn Rushd, Bidayat al-Mujtahid, vol. 1, pp. 313-314
[88] AbuSulayman, p. 68.
[89] AbuSulayman, p. 68.
[90] AbuSulayman, p. 84.
[91] Mohammad Omar Farooq_6. "Riba, Interest and Six Hadiths Do we have a Definition or a Conundrum" [Unpublished essay, available online]
[92] Kamali, p. 301
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