Archive for August, 2011

Islam and the Political Theology of Blasphemy

Tuesday, August 16th, 2011


[This is the sixth in a series of my notes on the International Institute of Islamic Thought conference on iftaa and fatwa held in Herndon, VA. These notes are raw material for an edited report I will write on the conference and represents my perception of the discussion. The proceedings will be published by IIIT at a later time. The Minaret of Freedom Institute thanks IIIT for the grant that makes the publication of these notes possible. Responsibility for any errors in the notes is mine alone.]

Moderator: Iqbal Unus
“Islam and the Political Theology of Blasphemy”
Muqtedar Khan, Prof of Political Science, University of Delaware

One day Mullah Nasr-ud-din gave his wife five pounds of ground meat and told her to cook it for a party he wanted to give for his friends that evening. It was in the days of Islamic feminism, so she cooked it, but invited her friends over for a party and served it to them. In the evening when the mullah got home she regretted her actions. When he asked her where are the five pounds of meat, she said the cat ate it. The mullah then weighed the cat, which was exactly 5 pounds. “Okay,” said the mullah, “I see the meat, now where is the cat?” I get the same feeling when I read about political theology. I see the politics, but where is the theology? It’s missing.

Watching the televised debates in Pakistan is not like watching an intellectual program, but more like watching a horror flick. A law promulgated in the 80s by Zia al-Haqq sentences anyone who insults the prophet to death. There have been accusations of violations of this law, often false. In a dispute between two Muslims, one became so angry that he threw the business card of the other away. The other’s name was Muhammad, so he sued his antagonist for insulting the Prophet. In another case a father and son, Salafis, were sentenced to 20 years in prison because they tore down a Sufi poster for Mawlid-an-Nabi plastered on their front door. There are two aspects to the issue: The substantive question of whether insulting the Prophet should be punishable in the first place, and cases of abuse of the law as well.

The British passed law in the 1930s after a writer was murdered for insulting the Prophet that blasphemy against ANY religious symbol you will be imprisoned for 3 years (Section 295A). From 1930 to 1986 there were only two 2 cases prosecuted under this law, but since Zia introduced the death penalty, hundreds of cases have been prosecuted. 125 cases are current, including 80 cases where the convicted have been found innocent after having spent 8 or 9 years in prison. Even if the court exonerates you, when you get home there is a welcoming party ready to kill you. Two prominent Pakistanis have been assassinated in the past few months. The governor of Punjab, Salman Taseer, was assassinated by his own bodyguard for his sympathy for a Christian accused of insulting the Prophet, The Minister of Minority Affairs was also assassinated in front of his own house.

Taseer’s assassin Mumtaz Qadri has become a national hero supported by thousands of lawyers and doctors and judges for committing murder. He was inspired to that murder by a public speaker called “Mufti” Hanif Qureshi, who said a believing Muslim must kill anyone who insults the Prophet immediately. There is much hate and almost no teaching on any religious value in such speeches. There is a consensus from the extreme Sufis through the extreme Salafis in Pakistan that not only those who insult the Prophet but those who think insulters of the Prophet should not be killed are all to be killed.

No one in these debates has mentioned the Qur’anic verse “take not life which God hath made sacred except by way of justice and law: thus doth He command you that ye may learn wisdom” (6:151). In Pakistan the struggle is between secular democrats and pietists. The democrats do not challenge that those who insult the Prophet deserve be killed, they are only concerned that the law is easily abused as an instrument of revenge. It requires only three witnesses, so if three of you dislike my presentation today, you need only sign a petition that I have insulted the Prophet and I am finished. I could be in jail for ten years before the rest of you can persuade a judge of my innocence. Then when I come out the chance of my being killed is very high. Tuseer was such a liberal, as is Shari Rahman, who initiated a bill to repeal the law in parliament and who is in hiding now. She can no longer even take state protection for anyone assigned to protect might turn out to be her assassin. There are many laws in Pakistan that are abused and should not be on the books in the first place.

The other debate over the meaning of Islamic laws is more interesting to me. Even if there could be a guarantee that a blasphemy law would be implemented with complete justice, there remains the question of whether someone who insults the Prophet should be killed instantly. I want to focus on the challenge advanced by two people. Allama Javid Ghamdi, who after opposing this law had to leave the country, and his supporter Dr. Farooq Khan who was killed in his own house within two weeks after Ghamdi started opposing the law. These are the only two Pakistanis continuously arguing that it is unIslamic to kill anyone on these grounds. It is instructive to see what people bring forth as their proofs.

Everybody accepts the Qur’an as the first source and the Sunnah as the second of Islamic law. The liberals do not rely so much on ijma, and some people draw on ijtihad. The Shia use the term as’al a lot more than the Sunnis who focus on qiyas and ijtihad. Those critical of the Hanafi use the term râ’i a lot. The official position of the religious establishment is that blasphemy against Muhammad is punishable by death. The blasphemer has no recourse, and no opportunity for even tauba: even if he repents he must be killed. The establishment’s biggest argument is that there is complete consensus among the sahâba, but their proof of such consensus is limited to quotations from after the tenth century and later scholars like Ibn Taymiyyah to this effect. The Sunnah of forgiveness shown by the Prophet Muhammad toward those who insulted or abused him, prominent in the seerah and hadith, is deemed irrelevant on the grounds that the Prophet has a right to forgive that we do not. Interestingly, we can forgive people who insult Allah, violating huqûq Allah (because Allah can take care of them), but not those who insult the Prophet, violating huqûq ibâd/insân. Further, it is said that even if you had no intention to insult, you are still guilty of blasphemy if someone concludes you have insulted, then you have blasphemed and deserve the death penalty.

I will give you an example of hikma from the Nakshbandi Sufi order. It is the best-written English opinion from Pakistan, not necessarily the most dominant version:

“1. The verdict of infidelity for insulting the Prophet (saws) will depend upon the apparent words and no consideration will be given to the intention and the purpose of the person committing the insult and the circumstances of the time.” What is very interesting is that they are always introducing the issue of infidelity, which means they are talking of blasphemy and apostasy at the same time, but they do not want to acknowledge there is confusion between apostasy and blasphemy.

“2. Truly, whoever abused the Prophet (saws) or ascribed any fault to him or attributed any defect to his family to his religion or his habits or reproached him or compared the Prophet (saws) with any defective thing with the objective of derailing his personality and prestige is truly an abusive person and deserves to be executed. We make absolutely no exception to this verdict whether the insult has been committed intentionally or unintentionally. This has been the verdict of all the ulema of the ummah from the time of the companions to the present day.” This is factually not correct at all, but it is their claim.

“3. If a Muslim abuses the Prophet (saws) or lies about him or picks out faults about him, or robs him of his dignity, he commits the act of infidelity against Allah azzowajal.” But if that I sthe case, they had established that it would be possible to forgive him and leave Allah to deal with him. I have sent many e-mails asking for an explanation on this point, but gotten no response.

“4. When a person (a Muslim) speaks ill of the Prophet (saws) is any connection, he becomes an infidel. According to some Ulema, if a man uses an insulting word even for the sacred hair of the Noble Prophet Muhammad (saws) he will become an infidel.”

They provide an example. One mufti has issued a fatwa saying that if you say you don’t like kaddu (a vegetable resembling a water squash), then you have insulted the Prophet and deserve to be killed on the authority of Imam Shafi.

“5. It is beyond doubt that the whole of the Ummah is unanimous that one who slanders the Prophet Muhammad (saws) or other Prophets, is an infidel, whether he committed this act while considering it legitimate or illegitimate. He is an infidel in the opinion of the Ulema, and whoever doubts his infidelity is also an infidel.”

They provide sources:

1. Imam Shahab Ul-Deen Khafaji Hanafi’s, ‘Naseem Ur Riyadh’, Vol 4, pg. 426

2. Qadi Iyad’s, ‘Ash Shifa’, Vol 2, pg. 214

3. Imam Abu Yusuf, Kitab-al Khiraj, pg. 182

4. Fatawa Qadi Khan, Vol 4, pg. 882

5. Allama Akhi Yusuf, Dhakhairat al-Uqba, pg. 240

Yet, contrary to their claims, Qadi Iyad’s says there is no consensus. In the face of the criticism that if you make your argument on the claim of consensus, which is the third source of law, you are admitting you have no evidence from Qur’an or Sunnah, they have turned to two ayahs in the Qur’an: “Truly if the Hypocrites and those in whose hearts is a disease and those who stir up sedition in the City desist not We shall certainly stir thee up against them: then will they not be able to stay in it as thy neighbors for any length of time: They shall have a curse on them: wherever they are found they shall be seized and slain (without mercy).” (33:60-61) But even in this interpretation there is a clear condition “if they do not cease.” But if you look a few ayahs early you find: “Those who annoy God and his Apostle God has cursed them in this world and in the Hereafter and has prepared for them a humiliating Punishment” (33:57), in other words Allah will handle this; mind your own business. Without identifying myself or saying I am writing a paper on this issue I asked one of these muftis why they ignore this verse and received no response. Look at 24:12-26 dealing with the slander against Aisha. None of them call for killing although this is clearly slander against the Prophet’s family.

The other verse offered in defense of the death penalty is: “The punishment of those who wage war against God and His Apostle and strive with might and main for mischief through the land is: execution or crucifixion of the cutting off of hands and feet from opposite sides or exile from the land: that is their disgrace in this world and a heavy punishment is theirs in the Hereafter. Except for those who repent before they fall into your power: in that case know that God is Oft-Forgiving Most Merciful” (5:33-4). But this verse is about war, not insults. Why do those who claim otherwise not ask for hands and feet to be cut off or for exile? In opposition to this majority view, are many verses of the Qur’an that say when people become abusive either turn away or change the subject or change their ways.

When they turn to the hadith literature, the story of Ka`b ibn al-Ashraf has become popular. The story that Ka`b was executed for insulting the Prophet is clear proof for them and, I think, played a role in Khomeini’s fatwa against Salman Rushdie. But if you read the whole story you see that he was an enemy in a time of war and committed treason against those he was treaty-bound to defend. Not only that, he was also responsible for making a treacherous agreement with the Quraish against Medina. He also insulted the Prophet, but it is difficult to make a case that this was the sole reason for his execution.

Ashraf al-Qadri, a leader of the Nakshbandi who brings Ibn Taymiyyah’s books with him into the studio, cites the case of man who had two women sing abusive songs against the Prophet. When the Prophet conquered Mecca, he gave list of ten people to be executed and this man was among them. They cite seerah that the Prophet ordered that he must be killed even if he was found under the curtain of the ka`ba. This man, however, was also a murderer, an apostate, and an enemy of the Islamic state. Again, the case that he was condemned merely for insulting the Prophet is not clear. Interestingly, while one of the two women was killed, the other sought security from the Prophet, who forgave her. Apart from these problems, what is the status of books of seerah? Can we make laws with irreversible consequences based on biographical reports? I have not seen any an epistemology from any madhhab that says legal conclusions can be drawn from the seerah.

Javid Ghamdi has been accused of denying the hadith, but at least in the context of this debate, he does not. He argues that the Qur’anic verse “if anyone slew a person unless it be for murder or for spreading mischief in the land it would be as if he slew the whole people: and if anyone saved a life it would be as if he saved the life of the whole people” (5:32) governs the entire issue of punishment by death in the Qur’an and allows capital punishment in only two cases, murder and spreading fasâd (corruption, social disharmony, mischief, including terrorism) in the land. Insulting the Prophet cannot be considered spreading fasâd in the land, but the civil disturbance caused to the attempt to enforce this law might be. Then he comes to the issue of the Hanafi position. Imam Abu Hanifa did not subscribe to this position. He is very clear in saying that a dhimmi cannot be killed. He says if a dhimmi emphatically insists on insulting the Prophet he should be banished from the land. He expresses surprise hat anyone would even think of killing a non-Muslim for this when we don’t kill people for committing shirk the greatest sin of all. His position regarding Muslims who commit this act is that they become murtad, which many scholars do consider a capital crime. But non-Muslims are not committing apostasy by insulting the Prophet. None of the muftis seem to understand what Abu Hanifa is saying.

Don’t these scholars understand that they are manipulating the Qur’an and the seerah and they are selecting evidence for the purpose of supporting a pre-determined position? I thin they do. I think this is a hostile debate between a secular political elite and a “religious” counter-political elite. The reason no one is paying attention to the valid religious arguments of Taseer and Ghamdi is that this is not a religious debate but a political one. If you think having an elected government is a guarantor of peace and harmony, just look at Pakistan today.

Of the 55 Muslim countries only five have a very strict punishment for blasphemy including Pakistan, Saudi Arabia, and Iran. When Pakistanis are asked does this make the other 49 countries murtid, they say, no, because they are founded on nationalist, not Islamic, principles. I think we need to rethink the question of ijma, because it does not exist unless we define out of consideration those who disagree with it. We may have ijma on basics like God is one, but beyond those how can one establish it? Ibn Taymiyyah didn’t even use the word ijma, he said “general consensus.” How can the Pakistanis of all people where the majority are Hanafis claim ijma when Abu Hanifa does not agree with them? I think we must look critically when anyone invokes ijma as the sole source of a law, especially things like death and war. How can people miss the point that the fact that there is a debate demonstrates that there is no ijma. And if there were an ijma, the Qur’an overrides it. Selective sources are insufficient, and sources must be examined inclusively.

I think in an Islamic society there should have a single authorized body with a monopoly on the issuing of fatwas. In Morocco you could not have a debate like this because they have an amîr al mu`minîn.  Finally, I think the debates are political rather than religious and political preferences invariably color the discourse that contemporary Islamic scholars deploy as theology in the public arena.

Discussant: Khaled Troudi

You indicated that there is no clear hukm on blasphemy, but I invite you to review the contextual meaning of these verses and these hadith. For example, verse 5:33: “The punishment of those who wage war against God and His Apostle and strive with might and main for mischief through the land is: execution or crucifixion of the cutting off of hands and feet from opposite sides or exile from the land: that is their disgrace in this world and a heavy punishment is theirs in the Hereafter.”  Verses 9:64-66 clearly apply to mocking the Prophet: “The Hypocrites are afraid lest a Surah should be sent down about them showing them what is (really passing) in their hearts.  Say: ‘Mock ye! but verily Allah will bring to light all that ye fear (should be revealed).’ If thou dost question them they declare (with emphasis): ‘we were only talking idly and in play.”  Say: ‘Was it at Allah and His signs and His apostle that ye were mocking?’ Make ye no excuses: ye have rejected faith after ye had accepted it. If We pardon some of you We will punish others amongst you for that they are in sin.” Muslims are in a weak state and vulnerable to mockery. The seerah explains these verses. “Whoever curses the Prophet, kill him,” is an authentic hadith. The Prophet gave orders to kill people who insulted him and Islam: Abdullah ibn Ubay, Ibn Salud, Ka`b ibn al-Ashraf, Asma bint Marwan, and Ibn al-Hanif were all killed. I would also ask why you did not take into account many traditions used by these scholars about those who insult the Prophet or Islam? For example Ibn al-Mundhar says scholars who agree that those insult the Prophet must be killed mentioning by name opinions of Imam Malik, Al-Laith, Ibn Hanbal, Shafi, and Abu Hanifa. The Shia tradition according to Khui has the same conclusion. Why did you focus only on Pakistan and not Saudi Arabia and Iran?

Discussant: Louay Safi

I think the issue is timely and the situation is serious. I agree that Pakistan is a special case. There is a beautiful hadith: “Allah does not take away the knowledge by taking it away from (the hearts of) the people, but takes it away by the death of the religious learned men till when none of the (religious learned men) remains, people will take as their leaders ignorant persons who when consulted will give their verdict without knowledge. So they will go astray and will lead the people astray.” [Bukhari] You’ve heard of a power vacuum; I think we have a knowledge vacuum. We have people obsessed with a virtual text taken out of its discourse. The Qur’an is not individual texts, but has a complete meaning that stimulates thinking, that forces you to think in your social and critical context. When the Qur’an talks about fasâd, it is not talking about making people uncomfortable; it is talking about taking life or property, about rape and massacre, depriving people of their dignity or rights—not verbally disparaging someone’s religious sensitivity. Knowledge is being taught as something that has been achieved. This is not knowledge; knowledge is a process.  Calling for someone to be killed for such reasons is not free speech but incitement. Pakistan spends less than 1% of its income on education. What you see here are people who are angry about their deprivation.

Khan: I explained why 5:33 did not apply. If I say, “Dick Cheney is a dog who eats from garbage,” have I declared war on the United States? No. So how could an equally repugnant statement against the Prophet be a declaration of war? And if it is a declaration of war, then why are they not calling for crucifixion? They are not arguing; they are making a pretense at an argument. The other arguments are indeed strongly worded, but none calls for death. Yusuf Qaradawy has written a new book in which he makes the same argument. I didn’t bring up the verses because none of the scholars brought it up. I am not taking sides, issuing my own fatwa; I am analyzing the debate in Pakistan on this issue. I introduced the verses from Surat-an-Nur only because I sent e-mails to the ulama asking why they did not talk about this and they did not respond. They are more interested in killing somebody than in knowing what the real Islamic position on this issue is. Ibn al Munza is the one everybody in Pakistan quotes to show there is ijma, but there is no ijma. Is Imam Abu Hanifa outside the fold of Islam? He’s a salaf. Do the salafis believe in the tabi`în or not? This man inciting murder in violation of the law of their country is fasâd by definition. A case was filed by five people, none of whom was a witness to the alleged crime. A man died because of it. We can no more say Ka`b ibn al-Ashraf was killed for insulting the Prophet than we can say bin Ladin was killed for insulting George Bush or his father. Abu Hanifa’s view is widely available in translation into Urdu on the Internet but it continues to be misrepresented.

General Discussion

M. Ayoub: As usual you are the conscience of the Muslims. You are absolutely right that the verse 5:33 does not apply here because hirâba is highway robbery, not slander. Fasâd means making life impossible for people. I have a feeling that in Islam there is no blasphemy law and this is a British law the Muslims have inherited. I do not see it in the rest of the Muslim world as it is in Pakistan. In Arabic we do not even have a clear word like blasphemy. Kufr does not mean blasphemy, but rejection.

Kenneth Honerkamp: I lived in the Northwest frontier from 1969-79; I was in the Deobandi madrassas and I never heard of this issue. What happened? What is the political advantage? Lastly, I have a story from Morocco. A sharîf (a member of the Prophet’s family) got into an argument with a Moroccan man. The vehemence of the argument escalated until the man said, “You and your family are dogs.” The sharîf took the man before a judge accusing him of insulting the Prophet and demanding he be killed. After hearing both sides, the judge said, “If you were a real sharîf you would never have let the dispute come to this point,” and he dismissed the case. So, what political groups profit from this?

Anwar Haddam: We see the need to contextualize fatwas and see the maqâsid behind them. Protecting the lives of human beings is one of the most important objectives of Shariah. Implementing this law is fasâd. As to your suggestion of a state monopoly on iftaa, I think we need to protect the independence of the muftis from the state. It is implementation of the fatwas that must be the monopoly of the state.

Khan: It is interesting that the two words they use in Urdu do not mean blasphemy, but (tawhîn) insult.

M. Ayoub: In Arabic this means “weakening.”

Khan: In Urdu they use Arabic words with entirely different meanings. They also use the word shâtim. They are not using the word sulh, which is very interesting. The word shâtima does not occur in the Qur’an at all. Sabba appears in this interesting verse: “Revile not ye those whom they call upon besides God lest they out of spite revile God in their ignorance.  Thus have We made alluring to each people its own doings.  In the end will they return to their Lord and We shall then tell them the truth of all that they did” (6:108). It is also used in Ibn Taymiyyah’s book.  It also arises in the Sunni-Shia debate with regard to insulting the companions of the Prophet. In every case that has come up since Zia al Haqq put the law in its current form, not a single defendant has claimed that it was their intention to insult. All have been apologetic for giving offense, but as I have said lack of intention is no excuse.

As for the political advantage, in Third World countries debates are rarely on policy; they are almost always on cultural symbols. In Pakistan they have found, just a year or two after the Danish cartoons, the power of campaigning on religious symbols. When extremist Christian pastors in America insult the Prophet or Islam they get little attention here, but they make the front page in Pakistan.

I agree with you about monopolies. There is, I think, a hadith that if you see a scholar going to a rich man’s house, assume he is a thief. The role of the scholars as the critics of the powerful has, I think, been lost.

Sami Ayoub: The notion of ijma in the sense that everyone agreed never existed. When verses are taken out of context to support killing, we must put them back into context to challenge that claim.

Khan: If we say there is ijma, then we exclude ourselves from the conversation. As soon as we ask a question, ijma is put into question. The opinion of the Muslims of Herndon is of more concern for me than an imagined consensus form a thousand years ago. The verses that the ulama of Pakistan are using based on he interpretation attribute to Ibn Taymiyyah were not brought by his student Ibn Kathir into his tafsîr. He says these verses apply to hypocrites.

M. Ayoub: I argue that Khomeini did not issue a fatwa against Salman Rushdie because had he done so, it would have been on the grounds of apostasy, that his insulting the Prophet and his wife constitituted kufr, in which case he should have been given time (three days by the most widely accepted view) to repent. I think he was making a recommendation. He gave the reason, saying, it was so no one would insult Islam again. If you think this is a fatwa—

Haddam: That is the problem. That is why we need a definition of a fatwa.

Khan: They put a monetary reward.

M. Ayoub: Khomeini put no monetary reward.

Adam El Shiekh: At the time of Khomeini’s fatwa, I commented in a khutba that you couldn’t kill someone without a hearing, even in absentia, producing a record for history. I was targeted for execution and had to go underground for three or four months. Dr. Moqtedar says the fatwa is still valid in Pakistan, but after a year or two I was able to go back and stayed there for a few years.

Sarah Albrecht: How would you see your own role as a scholar in this debate?

Khan: What motivates me is that if they were to apply this rule against those who insult Jesus, then all Muslims would be accused of insulting Jesus, because we say he is not God. It sounds ridiculous. I don’t want to get involved in Pakistan’s internal politics, but if they claim Islam as their justification, they are drawing me in. I am providing a critique of these people using their own methods to show they are not sincere in their use of their own methods.

Moustafa Kassem: What about Imam Ghazali’s Fausal al-Tafriqa which is a manual on this question. He identified intention, level of knowledge, and outside pressure, as relevant issues that must considered as well as the necessity of giving three days for repentance.

Khan: There is zero mention of Ghazali or of the three day period in this debate.

Laila Ghouri: Islam has not divorced itself from the crazy actions of Muslims. Violent acts of the IRA are not attributed to Christianity or Jesus, while the violent or crazy actions of Muslims are linked to Islam or Muhammad. Why is this and what can and should be done about it?

Daoud Nassimi: The penal laws of Islam are for an Islamic state and not for an individual to apply. When Allah commands us to fight fî sabîl Allah it does not mean physical fighting but a spiritual fight. Anything else is fighting against Allah. Preventing people from the path of Allah is included in the definition of fasâd, for example: “Those who reject God and hinder (men) from the path of God for them will We add Penalty to Penalty; for that they used to spread mischief (fasâd)” (16:88).

Khan: I am familiar with that verse, but I am not sure insulting anybody constitutes preventing some one from the path of Allah. One of the failed anti-Shariah laws proposed that performing wudu be punishable by fifteen years in prison. So, you can wash you feet but if you washed your feet for the purpose of prayer you could have been imprisoned for fifteen years. That would be an example of preventing people from the path of Allah. An insult is not a war. Shâtima does not mean insult, but vilification. The argument of these people is that Pakistan is an Islamic state but the state is controlled by kufâr. The fact that I argue against killing someone who demonizes the Prophet doesn’t mean I don’t want to stop him. I might feel like killing such a man, but my religion prevents me from doing so. The Qur’an says clearly when you come across ignorant people, say “Peace!” and turn away. People who abuse the Qur’an are engaged in psychological torture against those who hold it dear, but that does not justify killing them. It is conceded that shâtima against the Qur’an is not a capital crime, but perhaps that will change in the future. What bothers me is that the Muslim masses are so ignorant of the sources that they are easily taken in by such faulty arguments. There is a story, I think about Ali, that he was once about to kill a man in battle, but the man spat upon him, so Ali backed off because he was no longer sure if his motive to kill the man was the just cause of battle or the affront of the personal insult.

Ghauri: You make valid points, but I have a problem with the analogies to insulting Dick Cheney or Obama. When you insult the Virgin Mary or Christ, the Catholic Church does respond. Where do you draw the line?

Adam El Sheikh: If you tell these people that the Prophet is described in the Qur’an as a man like me or you, they will say this is an insult.

M. Ayoub: There is a blasphemy law in the gospels, but it prohibits blasphemy against the Holy Spirit only. If you blaspheme against Jesus you might be forgiven, but blasphemy against the Holy Spirit is unforgivable.

Khan: It is clear that some of the ulama believe that if you do not believe the Prophet has `ilm al-Ghayb (knowledge of the unseen), you are not a Muslim. I met the king of Saudi Arabia only once and he told me, “You don’t understand that Saudi Arabia is different from other countries because the people are more conservative than the ulama and the ulama are more conservative than the king. I would be happy to appoint a woman minister tomorrow. The ulama will not let me because the people will not let them. I nearly said, “That’s very democratic.” That happens in the United States where the imam’s salary and his job depend on the doctors and engineers with no formal training in Islam, who do the fundraising in the mosque. Imams have told me “When I get tenure like you have, I will give the khutbas you want me to give.”

To Laila’s question: Yes, we should respond to insults to the Prophet, but not violently. The Qur’an says in two places, “Respond to evil with good.” We can fund a yearlong celebration of the Prophet Muhammad or of the Qur’an. Better yet, people will stop believing these attacks on the Prophet and on Islam when they see Muslims behaving magnanimously.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute

News and Analysis (8/15/11)

Monday, August 15th, 2011

Enraged “opponents of the deposed president … vowed to challenge the decision with protests in downtown Cairo” …

… while a youth activist hailed as a hero of the peaceful revolution is denied the civilian trials accorded the supposedly deposed regime because “Nothing is new in post-revolution Egypt. The ones ruling Egypt now are the same as the ones who were ruling during Mubarak’s time. They are loyal to him still”:

The “defendants argue that the alleged plot was a theoretical scenario to help them plan for potential political unrest,” and “about 10% of the total in the armed forces” are now in detention, but “the military’s long history of coups and political interventions has cost it some of the public sympathy it might otherwise have had”:

Gaddafi remains defiant as Liby’s interior minister appears to defect and rebels take “the town of Zawiyah west of Tripoli”:

Giving a victim whose had was severed in the attack the same sentence as the longest sentence given the attackers send a message that religious minorities in Indonesia have no right of self-defense:

A UN spokesman cites 5000 refugees and calls the situation “alarming”:

In the face of fallacious accusations of anti-Semitism in Palestinian schools, a study of “the content of Israeli school books for the past five years” demonstrates what the author describes as a “racism that prepares young Israelis for their compulsory military service”:

WHAT IF … a Muslim won the competition for a 9/11 memorial? Unfortunately, what happens next is all too easy to imagine:

“Analyst Nabil Abdel Fattah, of the al-Ahram Centre for Political and Strategic Studies, said the coalition was “a final attempt by the various political forces” to form an opposition group to stand against the Islamists in the elections”:

News and Analysis (8/11/11)

Thursday, August 11th, 2011

Whole Foods refuses to knuckle under to the Islamophobic commentator who “has explicitly stated that those killed at Utoya got what was coming to them“:

“‘I lost my son. Blacks, Asians, whites: We all live in the same community. Why do we have to kill one another? Why are we doing this? Step forward if you want to lose your sons. Otherwise, calm down and go home, please,’ Jahan appealed hours after giving the kiss of life to his dying son on the pavement nearby his home” …

… reminding Faisal Hanif of his own father’s patriotism and that “the vast majority of Muslims in Britain also care about their country and their communities”:

MFI’s President comments on the increasing diplomatic pressure against Syria’s continuing violent repression of political dissent:

“A lifestyle of freedom.  Freedom from alcohol, drugs, and things that poison your body, mind and soul…. The best thing about being Muslim in America is that I am allowed to be the best Muslim I can be without restrictions like some other countries”:

“My father and cousins didn’t leave the Middle East to turn America into the place that they ran from. They came here for economic opportunities and freedoms…. America is a special place” — stand-up comic Dean Obeidallah:

A “shared immigrant experience” contributes to the impressive, and surprising to some, commonality between American Muslims and Jews:

Two Muslim Congressmen, “Hamza Abdullah, a defensive back for the Arizona Cardinals; and Husain Abdullah, a free safety for the Minnesota Vikings” and Israel’s ambassador to the United States, Michael Scott Oren” were among the invited:

Saab Erekat “slams Israel’s expected approval of 4,300 housing units in east Jerusalem over next week,” saying the plans prove “that this government is committed to investing in occupation rather than peace”:

Al Qushairi’s Fatwa, His Risala & Their Implications for Intra-Islamic Dialogue

Thursday, August 11th, 2011


[This is the fifth in a series of my notes on the International Institute of Islamic Thought conference on iftaa and fatwa held in Herndon, VA. These notes are raw material for an edited report I will write on the conference and represents my perception of the discussion. The proceedings will be published by IIIT at a later time. The Minaret of Freedom Institute thanks IIIT for the grant that makes the publication of these notes possible. Responsibility for any errors in the notes is mine alone.]

Moderator: Khaled Troudi
“Al Qushairi’s Fatwa, His Risala & Their Implications for Intra-Islamic Dialogue”
Kenneth Honerkamp, Prof of Islamic Studies, University of Georgia

I hope this paper will give a historical example as to how a fatwa affected the community of its time and how a fatwa in our day can affect the community today and how fatwas form the past may be useful in understanding intra-Islamic dialog today. Within Islam there is a textual and an oral history. In Judaism what gave the rabbis authority was their claim to be carriers of the oral tradition revealed on Sinai at the same time as the written Torah.

At a time when Sufi shrines in India and Pakistan are targets of suicide bombers and some Western scholars and numerous Muslims see Sufism as an extraneous growth owing little to the authoritative textual sources of Islam, the relevance of the fatwa issued in 436 H./1044 C.E. by Abu al-Qasim Abdul Karim Ibn Hawazin al Quashayri on the Complaint of the People of Sunnah Relating to the Persecution that Has Befallen Them and his Epistle (risâla) on Sufism (437/1045) cannot be stressed enough. His fatwa affirmed that the theological perspectives of Abu’l Hassan Ali ibn Ismail al-Ash`ari were shared by the ahl al hadith community of Quashayri’s day. It was signed by the leading Shafi scholars of his day in Naishapur.  In translation it reads: “In the name of God, the Most Merciful, the Most Compassionate, the ashâb al hadîth agree that Abu’l Hassan Ali ibn Ismail al-Ash`ari was an imam among the imams of the ashâb al hadîth and his school is the madhhab of of the ashâb al hadîth. He spoke on the foundational precepts of the religious thought, following the path of ahl as-sunnah, criticizing and responding to those who differed from them  among the people of deviation and innovation. He was a drawn sword against the Mutazilites and the Rafilites, and the innovators amongst the People of Qibla as well as against those who have left the community altogether. Whoever defames his character or maligns him or curses him or reviles him has indeed vilified all the ahl as-sunnah. We have written these lines in obedience to this perspective in Dhul-qaida in the year.  The truth of the matter is as stated here.” This was prompted by a controversy due to the ascendancy of the Seljuks in 432. Soon after Tughril came into power his Hanafi (and possibly Mutazilite minister) al-Kundari initiated a campaign against the Shafis, who were the scholarly elite at Nishapur. They initiated a campaign against the Shia (the muwâfid in the polemical language of the day) and what they called ahl al bid`a, referring to the Asharis. In Nishapur the Shafis were identified with the Asharis, and so they lost the privileges to teach and preach at the main mosque, and Ashari came to be reviled as an unbeliever. All this led al-Quashayri to write his fatwa in 436.  Despite this, the controversy continued for ten years and in 446 he composed an open letter to the Muslim world. It raised the issue of the persecution to a new level. He enumerates and then categorically refutes the personal attacks on al-Ashari, and not necessarily the theological criticisms.

Previously, the phrase ahl al-hadîth brought to mind the Hanbali scholars, who were completely anti-kalam. Associating the phrase with Ashari constitutes a move away form the Hanbali school’s old position and this fatwa may have played a role in broadening the concept of what constitutes an ahl al-hadîth culture. Kundari imprisoned Quashayri who was quickly broken out by his followers. They made their way to Baghdad where they were well received. Tughril died and Kundari was killed, and new sultan, Abdus-Salam, ascended to the throne. His minister, the famous Nizam al-Mulk was a Shafi apparently sympathetic to Ashari theology, and founder of the great Nizamiyah institutes. This turned the tide and Quashayri returned to Nishapur until his death. He was regarded by his contemporaries as the “absolute imam” of his era, one with knowledge of both the religious sciences and the Divine Reality.

Al-Quashayri’s Risâla takes the tools of kalam and fiqh to develop what Ahmet Karamustafa calls “a theologically and legally savvy form of Sufism.” The book has assumed what Mustafa calls “canonical status” for most later Sufis and observers of Sufism alike and gives us a unique window on the classical Islamic world.

Before al-Quashayri there were Sufi jurists in Nishapur and training masters. The milâmatiˆ held that the lower soul, or the nafs, must be watched at all times lest it prevent the believer from reaching the true goal of sincere selfless devotion to God. They avoided any public display of piety and took on ordinary jobs. Nishapur became known as the place of formative Sufism. Karamustafa attributes the Risâla’s enduring popularity to its harmonious composite nature.

In the light of the above, we can say the Risâla is a lengthy fatwa that reflects the first fatwa of which we spoke and addressed the waywardness of his co-religionists stemming from the divided nature of their discourse. He feared Sufism had become misunderstood by both the practitioners and the wider community. Its dual purpose was to remind Sufis of Sufism’s earlier uncorrupted state and to defend Sufism before the broader Muslim community, before al-Ghazali.

The first chapter of the book consists of short biographical notes, and titled “The Masters of This Path, Their Deeds and Sayings and How They Uphold the Divine Law (Shariah).” It excludes the companions, and begins with the Tabi`în. Sufism is the leading oral tradition of Islamic scholarship resonating alongside the written tradition. At the end of the chapter he says he has mentioned these people to show they follow the Sunnah and never neglect a single rule. He says those who say otherwise cause themselves to perish, and also those who believe their lies.

In his second chapter he explains basic metaphysical terminology that you generally will not find in the books of fiqh. For example, he explains that nafs is generally understood to mean the “being” of a thing, but for the Sufis it means deficiencies of character and reprehensible traits, so that is it is a negative term.

He finishes the Risâla with the observation that God protects the Sufi masters (shuyûkh) and the necessity of not opposing them, their visions, and spiritual advice for aspirants on the path. He advises to respect and admire them, but not to think they are infallible.

Iftaa is not the sole domain of the fuquhâ. A fatwa’s influence may extend far beyond the time and place of its issuance. The Risâla is a key example of a happy marriage between the written and oral traditions. The translation of Alexander Knish that has recently come out leaves something to be desired, but is complete and faithful to the content. It has some peculiar translations like “scrupulosity” for scrupulousness, but it reads well and I strongly suggest everyone have a copy in their library.

Discussant: Mahmoud Ayoub

Islam is based on submission to God and not on the ideas of human beings. Early on there developed the heritage we attribute to the Sufi tradition, the ascetics, the “weepers” who wept when they read a verse of the Qur’an dealing with paradise for which they longed or of Hell, which they feared. A woman, Rabia al-Adawiyyah is generally considered to be the one who moved Sufism away from asceticism to spirituality. We should remember that with the esoteric influences on Sufism there came problems which led to the persecution of the Martyr of Love al-Hallaj. He gave Sufism a bad name in the eyes of people in general. Thus, the need for someone like al-Quashayri to rehabilitate Sufism as described by our speaker. The Risâla explains the complete rootedness of Sufism in Islamic law and aqîda. I invite Dr. Honerkamp to compare the new translation with the partial translation by the earlier Barbara Shlegel. Some fatwas are book-length, but in what way is the Risâla a fatwa rather than a manual of Sufism? Criticism of people who adopt ideas or rituals not practiced by the first and second generation of Muslims are called ahl al-ahwa wal bida. In the good-old days, and this says a lot about where we are now, people distinguished between good and bad bid`a. I think the formulation that every new thing is a bid`a and every bid`a is an act of going astray and every act of going astray leads to the fire probably is a harsh judgment on a civilization that gave so many new things to the world. I want to remind you that the only religion to produce a truly universal civilization has been Islam. If ourt ancestors believed this notion of bid`a, they would not have created the civilization they did.

Discussant: Moustafa Kassem

This paper opens our eyes to important issues. I see two main themes: the actual fatwa that the Ashari tradition is founded in the Sunnah, and the discussion of the Risâla that Sufism is rooted in Asharism and thus also in traditional Islam. This paper relates to the politics of fatwas. Some opinions may reflect political and social realities beyond the simple interpretation of text. The issue of labeling also comes up. Labelling often takes us off the path of knowledge in that we focus on the label and rather the content. I want to talk about interpretation. The rightof person to their own knowledge, to not be bound by other people’s ideas is what will keep us free. Sufi scholars interpret traditions and ayahs in the light of their spiritual understanding. It was important that you reminded us that the Sufi masters are not infallible. Was al-Quashayri’s authority to give a fatwa broadly recognized in his own time, or only among his followers? I was glad you mentioned the chainsof transmission in the book. It is important for freethinkers or any who wish to think for themselves that they have the ability to investigate and question the validity of the chains of transmission. The notions of good and bad bid`a are essential for our concerns. We must not be scared in a our scholarship that someone will accuse us of bid`a because our conclusions are different from traditional scholarship, or that one might be accused of guilt by association for communing with those whose ideas are not popular. We want to produce things from wihch people will benefit. This requires us both to be brave and at the same time to be informed.

Honerkamp: Barbara Shlegel translated only the terminology, leaving out the biographies. There is another translation by Rabia Harris, partial in one edition and complete in the other. Although the footnotes were put at the end of the book in shortened form and are difficult to access, the translation is very good. I said that his fatwa was signed by the scholars of the day, and recognized as an official hadith, and there was no doubt in Quashayri’s community, not only among his followers, that he was imam al mutlak.

The intention behind the book seems to be to address Sufis and non-Sufis on his opinion and this makes it a fatwa. He says of God that “He knows by his knowledge; He is powerful by His power; He wills by His will; He sees by His sight” and is straight Ashari kalam. He states very clearly in the introduction to the text that the creed of the Sufis is one with the creed of Ashari.

M. Ayoub: Which is what makes his book a manual. Its purpose is to lead people to the Sufi path.

Honerkamp: I think this fatwa is in a religious context. He says plainly that people define their terms in a way to make their meaning clear among themselves and to conceal them from those who disagree with their methods. I think he is attempting not to interpret, but to define, terms from the Sufi perspective. I agree with Br. Mustafa completely on the issue of interpretation. People too frequently say, “God said …” when they should say “I believe that when the Qur’an says this it means this….” I think Muslims tend to turn off their critical faculties when they hear “God said …” or “the messenger said….” People are not always quoting the Qur’an in Arabic when they say kâl Allah.

General discussion

Louay Safi: The challenge for us today is to try to bring spirituality to the discussion. We may need a new word besides Sufi. We can’t help but label, because categorization is part of knowledge. Wisdom is about bringing knowledge to bear on life.

Michelle Church: The fiqh is not something to which Western converts can necessarily relate.

Honerkamp: Not only Western, when you look at the spread of Islam all over the world.

Church: It is interesting to me that when converts speak of their conversion in a spiritual way they are immediately labeled “Sufi.” So I am interested in Dr. Louay’s suggestion that we may need a new term for spirituality.

Anwar Haddam: The conclusion that the Risâla is a fatwa takes me back to the point that we need a serious discussion to come up with a clear sustainable definition of fatwa. To your conclusion that iftaa is not the sole domain of the jurists, I say that islâh is not the sole domain of jurists, but a fatwa is a matter of law. Otherwise there would be fatwas in politics, economics, and social science. We need more clarity. We don’t want to face extremism in material life, but what about spiritual life? Islam is a balance between the spiritual and the material, and the challenge is keeping that balance. The stronger our relationship with Allah, the stronger should be our relationships with our fellow human beings.

Honerkamp: We don’t mind calling someone a faqih or an usûlî, but as soon as someone is called a Sufi there is a problem. Sufism has its spokespeople, history, and methodology. I would suggest there is in the world an extremely effective de facto Sufi tarîqa that has had an enormous impact on the world but it is not called Sufi or even Islam, even though it has a shaikh named Fethullah Gülen: the Gülen Movement. It is not called Sufi or Islamic, but Islamic, Sufi principles deeply infuse the movement.

I can’t say how the fatwa was received other than to recall that the Hanbalis objected to refuting the Mu`tazila on the grounds that to refute them you would have to repeat their arguments. But I repeat that it was identified as a fatwa by the scholars of his day. I quoted from Quashayri that you should not ascribe infallibility to the masters because so many critics of Sufism today say that to be a Sufi you must uncritically follow the master. He also says one should not be overly critical of them but to think the best of them even when you don’t understand them. Consider the case of the Moroccan shaikh Ahmad Zarouk who saw his master sitting with a bottle of wine and a beautiful young girl. He walked out in disapproval, but the master called out to him, “Come back! This is vinegar and this is my daughter.” In other words do not jump to criticize what you do not understand.

M. Ayoub: There is no Arabic word equivalent to the English “mysticism.” Sufism became label that really refers to the dress of the initiate (course wool, or sûf), although some try to attribute the term to other origins (like sofia). A fairly well known Sufi of the 9th century observed, “Sufism used to be a reality without a name and now it is a name without a reality.” There are other terms, like gnosis, that can be used. It is about love of God expressed through poetry or knowledge of God. Sufism is a rich heritage mirroring a rich civilization. It is not, strictly speaking, a madhhab, but cuts across all the schools. Although the Shia were hostile to Sufism in general, it developed in Iran prior to its becoming Shia and still prevails there.

Abubaker Al-Shingieti: From vantage of the theme of the conference, I find a couple of missing dimensions. A discussion of the methodology of fatwa from Al-Quashayri’s approach has already been mentioned. The main missing dimension, however, is the pressure he was under, not only coercion from the authorities, but the intellectual terrorism he faced from his opponents, must be exposed. We must make the point that they are against the spirit of Islam. This addresses issues of authority and legitimacy we face today.

Vinay Khetia: Sufism cuts across schools and sects. Sufism and fiqh have never been mutually exclusive. In saying fiqh is boring or complicated or unattractive to new converts, we must be careful not to dismiss this important part of our intellectual tradition. Shaikh Ibn Baha’i al-`Amali from Southern Lebanon was an architect, a poet, a theologian and a hadith scholar. The spiritual masters were also masters of fiqh and theology. For these people every act has a metaphysical value attached to it and it is the duty of the scholar to identify the metaphysical value of each act.

Honerkamp: I would say the Risâla is a coming together of all of these fields. Sufis don’t call themselves Sufis. They usually call themselves fukurâ. The negative aspect of the nafs in the milâmati perspective is that it is like a piece of charcoal. No matter how much you wash a piece of charcoal it remains black. To change its color you put it the brazier and it glows and turns red. There isn’t a Sufi way of making a fatwa. Quashayri gave his fatwa as an `âlim.

M. Ayoub: One of the greatest Sufis, Abdul-Qadir al-Jilani, belonged to the Hanbali madhhab, as did others.

Daoud Nassimi: Where I grew up the only thing people knew about Islam was Sufism. To me the origin of Sufism is nothing more than a reaction against excessive legalism. Different groups emphasize different aspects of Islam. I am concerned that as soon as we name groups we create opportunities for division and extremism. An excessive emphasis on some values undermines others. Islam is a balanced and harmonized teaching. The devotion in the West of certain days of the week for the spiritual and other days for the secular is strange to me. Emphasizing the intellect at the university but not at the church is strange to me.

Safi: The good Sufis are very introspective; but there are others, like one very well known Sufi in the U.S. who has spoken against other Muslims and loves to be in the corridors of power.

M. Ayoub: The one of whom you speak doesn’t know much about Islam or Sufism.

Safi: But he is Sufi shaikh that people know about.

Haddam: Not all Sufis are alims like Quashayri.

Church: Coming out of Christianity I see Islam cuts across so many cultures. As soon as I became a Muslim I had to ask, “What kind of a Muslim will I be?” It seems you need a way to distinguish yourself among Muslims.

M. Ayoub: I think our negative attitude towards Sufism in large measure is a reaction to our 19th century encounter with the West. We wanted to show the West that we are more rational than the Christians, and Sufism was victim of that.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute

Syria: The Changing Diplomatic Picture

Wednesday, August 10th, 2011

I was interviewed by Russia Today, along with the Heritage Foundation‘s Ariel Cohen, on the increasing diplomatic pressure on Syria because of Bashar Asad’s continuing violence against his people and their expression of a desire for a more democratic future. The substance  of my comments are summarized below.

If the U.S. were to overtly call for Asad to step down it  would provide moral support for the demonstrators, but would give Asad fuel for his claims that foreigners are behind the uprising. Israel has been even more restrained in its criticism than the U.S. in part for this reason. Cohen pointed out that Israel and the United States also don’t want to see a Muslim Brotherhood  backed government replace the secular Syrian dictatorship because the Brotherhood does not recognize “Israel’s right to exist.” (Does the present Syrian regime?)

In any case the U.S. can have no direct impact on Asad because it has no leverage. Russia can impact Asad because it has historically supported Syria. Russia has been supportive of Asad for the same reason the U.S. was supportive of Mubarak.

Already Turkey, Saudi Arabia, Kuwait, and Bahrain have withdrawn their ambassadors from Syria, and Turkey, despite its friendly relations with Syria, is taking the lead in trying to directly pressure the Syrian regime to change its policies, warning Asad of the possibility of a “”Saddam-like” isolation .” Even Egypt has now spoken out. A strong moral stance by the U.S., while it would have no direct impact on Asad, could indirectly affect the situation by encouraging the Arab states that are allied with the U.S. to increase their pressure.

Military intervention, in any case, is counterproductive, as the situation in Libya has amply demonstrated.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute



News and Analysis (8/10/11)

Wednesday, August 10th, 2011

With at least 1,700 unarmed civilians murdered, Syria blames “terrorists” for the uprising:

“The three dead men ‘did nothing wrong! They died because they were doing the job of protecting our community. The job that you lot should have been doing!’ one speaker shouted, jabbing an accusatory finger at the police panel”:

“The unanimous vote, called ‘the right thing at the right time’ by the Rev. Charles Swadley, retired pastor of Lakeside United Methodist Church, was met with joy by the Muslim community”:

Moros seek a federation like the U.S., wherein “powers over national defense, foreign relations, coinage and currency, and postal services are still the sole jurisdiction of the central government”:

“Some members of the Salafi movement have also been actively trying to convince martyrs’ families in Alexandria to accept money from police officers accused of killing their relatives”:

“In Afghanistan Zabihullah Mujahid, a spokesman for the Taliban, said: “‘The person who shot down the helicopter is alive and he is in another province operating against [foreign forces]'”:

“The administration has been surprised by a rise in anti-American sentiment in the Mideast, particularly in Egypt where President Barack Obama delivered a 2009 speech intended to ease tensions between the United States and the Arab and Muslim world”:

Former parliament member Jawad Fairouz, “who expects proceedings against him to be dropped, said some other detainees had been told they could not leave the country pending prosecutions in a civilian court”:

A statement from Netanyahu’s office suggests that any nuclear free zone will not include Israel:


News and Analysis (8/9/11)

Tuesday, August 9th, 2011

Court to Rumsfeld: You can’t deny American citizens their day in court:

“In all criminal prosecutions, the accused shall enjoy the right …  to be confronted with the witnesses against him” — the Sixth Amendment to the U.S. Constitution:

“No less than the father of American conservatism, the great 18th century British philosopher Edmund Burke … actually admired sharia because it subordinated rulers to religious law rather than giving them carte blanche over subjects as was the case in Christian countries historically”:

Syria continues its offense even as Turkey’s warns “Syrian President Bashar al-Assad that he could risk ‘Saddam-like’ isolation if he does not halt his brutal crackdown on Syrian protesters”:

Even as a “wave of intolerance against religious minorities .. challenging Indonesia’s image as a beacon of how Islam and liberalism can coexist,” the beheading of a maid “for the killing of an allegedly abusive Saudi employer”  has “observant Indonesian Muslims”  revolted by heedlessness of Islam’s “call for compassion”:

Highly-ranked former US officials, often with little knowledge of the group, “have been paid tens of thousands of dollars to speak in support of the MEK. They rarely mention the MEK’s violent and anti-American past, and portray the group not as terrorists but as freedom fighters … ready to serve as a vanguard of regime change in Iran:

One year after the Stuxnet worm reportedly “developed in a jointAmerican and Israeli effort to undermine Iran’s” nuclear program and one “day after Britain’s The Sunday Times reported Israel has set up a military cyber command charged with developing attacks against Iran” a defiant parliamentarian dares them to bring it on:

In a show of confidence after successfully repelling two rebel attacks last night, the government turns security for the Mogadishu marketplace to police as shops reopen and offers amnesty to militants if they will surrender:

Now that the “Arab Spring” has shown “leaders are replaceable, but the people are not,” the U.S. must place the rights of the Palestinian people above the words of Palestinian negotiators:

News and Analysis (8/8/11)

Monday, August 8th, 2011

As a senator, Obama criticized the Bush administration for overuse of the state secrets privilege; as President, he has repeatedly used it himself and his administration  has now extended it into new territory to prevent Craig Montheilh’s claims that abusive practices have been directed against American citizens from being heard in court:

The U.S. stalls commenting officially on the 17th helicopter downing by enemy fire in Afghanistan, the most serious yet in casualties and a propaganda coup for the Taliban:

The inclusion of the Muslim Brotherhood strengthens the democratic trend in its internal affairs …

… but if secularists insist on making Salafis “the new bogeyman in Egyptian politics,” even though “many Salafis groups are now inclined towards integration into the political process … they may adopt more aggressive means to assert their political presence”:

Any Iraqi invitation for U.S. forces to stay longer must now consider the effect of early release of Abu Ghraib war criminal Charles Graner on popular opinion:

The ejection of Andy Shallal’s Peace Cafe from Theater J is the latest skirmish in what artists and programming designers see as “a concerted move … to smother any type of critical examination of the Jewish state”:

“Al Shabab withdrew from Somalia’s capital city, Mogadishu, this weekend, but whether that is a sign of success for the African Union mission and Somalian government is unclear”:

As Syrian officials deny the attack took place, three Arab Allies of the U.S. recall their ambassadors and Saudi King issues his most sharply worded statement against the Syrian regime since the current Arab uprisings began in Tunisia and Egypt …

… while Bahrain tries to defuse tensions by releasing a human rights lawyer and two parliamentarians. The latter two claim to have been tortured and on one occasion beaten while in  detention:


News and Analysis (8/4/11)

Thursday, August 4th, 2011

Fareed Zakaria explains that “there are more members of military marching bands than make up the entire U.S. foreign service” and the”result is a warped American foreign policy, ready to conceive of problems in military terms and present a ready military solution” …

“Under intense US pressure, Iraqi leaders have agreed to start negotiations on keeping some American soldiers” in place:

Fed up with bigoted attacks on his judicial appointment, the popular governor of New Jersey the accusation that American Muslims seek to replace American law with a Taliban style interpretation of Islamic law “what it is — crazy”:

“A National Security Council expert on extremism who helped devise the new strategy, Quintan Wiktorowicz, said the administration was aware of “inaccurate training” on Islam for law enforcement officers”:

” I doubt that under fear of fines young people will stop paying respect to Allah by praying” – a former opposition leader:

Malaysian Christian leader says the police attempt to photograph Muslims attending an interfaith church dinner is “a dangerous precedent and makes a mockery of the sanctity of religious places” that “is also a violation of religious freedom”:

“There was no mention whatsoever of the Mubarak trial on the main news channels in Syria, Bahrain and Yemen, which have all seen Arab Spring-inspired protests demanding democratic reform”:

Many Egyptians “don’t want to see their democracy born as an act of vengeance”:

“The report also claimed that there is a fierce debate in Israel over the efficiency of such assassinations and it also stated that Israel Air Force officers have stepped up their calls to bomb Iran’s nuclear reactor”:

The Guardians of Islamic Marriage Contract and the Search for Agency in Twelver Shi’i Jurisprudence

Thursday, August 4th, 2011


[This is the fourth in a series of my notes on the International Institute of Islamic Thought conference on iftaa and fatwa held in Herndon, VA. These notes are raw material for an edited report I will write on the conference and represents my perception of the discussion. The proceedings will be published by IIIT at a later time. The Minaret of Freedom Institute thanks IIIT for the grant that makes the publication of these notes possible. Responsibility for any errors in the notes is mine alone.]

Moderator: Yaqub Mirza
“The Guardians of Islamic Marriage Contract and the Search for Agency in Twelver Shi’i Jurisprudence”
Vinay Khetia, MA, Islamic Studies, Concordia University, Canada

I examine the Imami debate over whether the mature virgin of sound mind requires the approval of her walî (guardian) to get married. If she married without the consent of her walî (who in Shia Islam is restricted to the father, grandfather, great grandfather, etc.), would this be an act of zina (fornication)? Where does legal agency (istiqlâlîya) lie? Contemporary jurists are of two opinions: that agency is shared (tashrîk) between the guardian and daughter, or that the agency belongs to the daughter (istiqlâl al-bint). We focus on the works of two contemporary jurists Ayatullah al-Sayyid Abul Qasin al-Khui’s Mabaânî al-`urwa al-wuthqa (representing the tashrîq) position, and his student Ayatullah al-Sayyid Sadiq al-Ruhani’s Fiqh al-Sâdiq (agency of the daughter). We shall also consider some Sunni positions. On the principle of mukhâlafa lill-`âmmah the Shia scholars resolve contradictory positions by rejecting the one closer to the Sunni position on the premise that it was an act of dissimulation. Lastly I shall consider the social function of compatibility (kafâ’a) and a`adl (prohibition from prevention of marriage).

One can find hadith to support almost any position including agency only on the part of the guardian and the reconciliation of these “apparent” contradiction takes up much of the juristic analysis. There are two traditions that are accepted in both Sunni and Shia traditions, (1) that the father’s permission is necessary and (2) that the father (but not other guardians) has the right to marry her off without her consent. Khui boosts the latter with the a supporting tradition that “none can annul the marriage except the father.” To these we have to add traditions supporting the agency of the daughter, and on these Ruhani parts company with his teacher Khui. In hadith (3) Imam Yahya instructs the questioner to consent on the marriage of his daughter to his nephew on the grounds of “her satisfaction for surely she has a propensity towards it within herself” which seems to give agency to the daughter. Further supporting hadith (3) are (4) “The woman who controls her own affairs and is not feeble-minded … she may marry without the consent of her guardian” and (5) If a woman controls her own affairs, [that is] she sells [goods]. Purchases, she is free, she acts as a witness, and she gives forth from her wealth as she wishes. Then surely her affair is acceptable, she may marry if she so wishes without permission of her walî.” (6) There is no harm in the marriage of a virgin if she is content (with the proposal) without the consent of her father. In addition we may mention the Prophet’s seeking of permission from Fatimah for her marriage to Ali. Khui and Ruhani differ on how to balance it against the others. For Khui that are harmonized by a reconciliation (al-jam`a) of at-tashrîk, in which the father cannot compel the daughter nor can the daughter act without his consent, combining istiqlâl al-ab with istiqlâl al-bint, It follows that the daughter may also contract her own marriage provided she obtains the father’s consent. Ruhani not only re-evaluates the hadith but reinstitutes the role of juristic preference to reach a different conclusion. Each claims his interpretation is consistent with the Qur’an, even though the Qur’an has no text directly addressing this question.

The principle of opposition to the Sunnis is not helpful here because the Sunnis differed among themselves. Further, Abu Hanifa’s view that it is minority rather than virginity that leads to the role of the guardian is suggestive of possible influence (in one direction or other) between the Hanafi and Imami positions on this issue. More research needs to be done on when the early books were written.

Imam al-Hindi sums up that it is a matter of ijma that a mature woman has agency in everything except nikah, about which there is a dispute. Al-Hilli writes “If the guardian prevents her (his daughter) from marriage and he is not marrying her to someone of equitable status according to her wish, for in that case it is permissible for her to marry even if he dislikes her  (in doing so), this is a matter of consensus.”  This implies that the authority of the guardian is not a blind power but an intelligent trust, a protective authority. Even the medieval scholars demonstrate a social awareness, for example, attributing the role of the guardian in the preservation of family honor, so even those who granted total agency to the girls, still urged her to seek the consent of the father to preserve the honor of the family. If the father denies the girl what is in her eyes a socially appropriate marriage, then he loses his guardianship. Without going so far as to accuse the scholars of intentionalism, there is enough evidence that scholars bring an ideology to their hermeneutics that affects the outcome.

Discussant: Mahmoud Ayoub

These are real, not just theoretical issues. Whatever the jurists say among themselves, the people in south Lebanon are not aware and the father assumes complete authority and if the daughter does not submit, she will get the beating of her life. There have been cases where girls asked to consent have refused even if it meant they would be killed, and some have been. You can attribute whatever you want to taqiyya, so that it is not a helpful tool. The clear injunction of Jafar Sadiq is that Shia may not turn to Sunni scholars. There is no ijma among the Sunnis anyway.  We have no choice but to give the people authority over themselves. The Lebanese scholar Shamsuddin wrote that the ideal state of the Righteous caliphs is impossible today and the divine rule of the infallible imam is also impossible, so people must have authority over their own affairs, minimizing the authority of the jurists over people in their own affairs. Wilâyat al faqîh is not a new concept. It goes back to the 12th imam, but it was a moral and juridical authority. All Khomeini did was add a political aspect, which led to the Iran of today. I believe two kinds of people should never be allowed to rule: the military and the religious. Jafar Sadiq said, “The scholars are God’s trustees over his revelation until they knock at the doors of the ruling authority; when they do suspect them?” I add, then what happen when the ulama themselves become the ruling authority?

Discussant: Mohamed Adam El-Sheikh

This is my first opportunity to learn about the Shia schools. According to the “Sunnah,” by my own investigation, it is not to that level. All the hadith about this subject have some defect, even the most commonly applied hadith. According to Imam Malik the forcing power of the guardian belongs to the father or grandfather or if they are not present some other man from the father’s side. It might be justified because daughters or sisters were pledge to marriage at a very early age, 13 or 14, and unable to negotiate their dowries or the conditions, so that it was for the protection of minors. In Egypt or my own country Sudan—even though it is Maliki in other respects—people now adopt the position of Abu Hanifa, as well thought out. His opinion is also applied in America: A woman of mature mind, whether virgin or previously married has the right to marry without consent of her guardian, although obtaining that consent is preferred. We used ask the imam to be a woman’s walî, but then it led to some collusion so we found it better to let the woman be her own walî. Marriage must be a contract between two competent individuals. The most acceptable Sunni hadith in my opinion is the one of the woman who told the Prophet, “My father has given me in marriage to his nephew.” The Prophet asked the father to justify his action. The daughter then told the Prophet that she consented to the marriage; she only wanted his confirmation that her consent was required.

General Discussion

Hashim al-Talib: Please clarify the term Imami.

Khetia: Imami can mean Jafari or Ismaili, but in my paper it refers only to the Twelvers, or Jafari. The view we have called the position of Abu Hanifa may have been the custom of Iraq that may have been retroactively attributed to him.

Ayoub: During the mid-tenth to mid-eleventh century (“the Shia Century”) the Shia were completely open to Sunni ideas. Only after the 14th century did that change. The whole idea of mukhâlafa lill-`âmmah must be used with caution.

Khetia: I strongly recommend Akecia Ali’s Marriage and Slavery in Early Islam. In that period, as in rabbinic Judaism, marriage and slavery had much in common. The question on which there is no agreement is whether a girl’s emancipation is achieved by majority or by marriage.

Laila Ghauri: Who represents the woman?

Khetia: Anyone can, including the woman herself. The question is not who represents her, but who is her guardian?

Abubaker El-Shingieti: This is the difference between the wakîl and the walî.

Adam El Shiekh. In very conservative families we send the wali and two witnesses to ask (1) does she accept this man; (2) does she accept the advanced and deferred dowries; and (3) does she have conditions she wants to be mentioned. Sometimes we might ask if there is a pre-nuptial agreement.

Ayoub: Tabari laid down that a woman can lay down any conditions he wishes in the contract, even to refuse to do housework—with only one limit: she cannot refuse to lay with him since that is the point of the marriage.

Khetia: I know an imam who will not accept to marry a couple if they have not negotiated a contract.

Louay Safi: This conversation is interesting, but it strikes me as out of place and out of time and very literal as well. Does the woman have agency? Can women have control over their own bodies? I think young American-born women hearing this conversation would be driven away by it. How can we say women can be judges or even rulers and still ask whose permission they need to marry? If people who care about Islam continue to go back to those arguments, Islam will continue to be marginalized. I think the fuquha are approaching the text with a preconceived conclusion in mind.

Adam El Sheikh: We cannot just jump out of what we know into something foreign to our background. Change will come, but gradually.

Khetia: I mentioned that the jurists have serious pastoral concerns almost to the brink of defending women’s rights. It is so simple for a woman to marry whom she wishes. Marriage has always been a family enterprise rather than an individualistic one. The scholars emphasize their fear of a father being high-handed with his daughter and categorically reject such behavior. Maybe there should never have been a ruling giving the guardian agency in the first place, but in fairness, someone like Alama al-Hilma, a contemporary of Ibn Taymiyyah, writes so many reasons for giving the woman absolute agency while at the same time cautioning protecting her from possible machinations of her intended.

M. Ayoub: Islam liberates, of course, but our history is open for everyone to study. Either we study it or we end up in apologetics, and apologetics leads nowhere. Academic freedom is important and the study of history and culture is important even if we must study things that from the perspective of the 21st century seem lacking. I appreciate what Br. Louay is trying to do, but in the end it doesn’t work.

Hisham Altalib: This study appropriate in the context of this scholarly meeting. It would be inappropriate for a public lecture in a masjid.

El-Shingieti: It is valuable to integrate the best of this history and integrate it into the thought of our time.

Safi: That is my point. This is not a time to go back in time.

Anwar Haddam: The first thing we should learn from this is it is not an easy matter. The compilation of the hadith has not been resolved as yet. Second, your paper shows the relevancy of such debates to those of us in West to the formulation of a methodology. I believe the great scholars are the liberal scholars: the more you know the more you know you don’t know. Our approach is family-oriented, but we live in a society that is not family-oriented. Our concern is to protect the family, which is the founding unit of society.

Khetia: It’s important for the fatwa to be relevant to our times. What I have presented to you are the lecture notes of their students. In the books of fiqh they give their one-sentence conclusions, which is not enough. I am not supporting anyone, only exposing the reality to which we must face up. I am not going to water down the patriarchal history of the Abrahamic religions. We must recognize that there are patriarchal and misogynistic hadith even if we wish to reject them.

Sarah Chawdhury: Virginity is sexual and maturity is psychological.

Khetia: When we spoke of the virgin of sound mind we speak of a woman who is unmarried but who is knowledgeable to the ways of the world. It is for this reason these texts have a relevance to modern society where unmarried women who work and are educated are common.

Michelle Church: I’m confused. I received three marriage proposals through women (mothers) at an extremely conservative mosque; all the questions put to me by women through my friend six months out of Saudi Arabia. Her husband never got a single question from the men (fathers of the prospective husbands) who seemed to play no role at all. It seemed to be totally controlled by the women. Is my case unusual?

Khetia: Like rabbinic jurisprudence, these academic analyses can be very divorced from social reality.

Laila Chawdhury: Is there more than hadith involved. Can you elaborate? Also, elaborate on the contractual nature of marriage.

M. Ayoub: There have been real efforts among Shia ulama to come closer to Sunni thought. We should bless and work with such efforts, because above all we need unity. Legal jargon in Islam makes a distinction between virgin and non-virgin and it is applied to both men and women in different ways. Virginity is a marker for immaturity as girls in that society usually married early. Many of the women in early Islam, including the daughters of the Prophet died young because they got pregnant before their bodies were ready. It was a cultural problem.

Khetia: I recently obtained a manuscript of all the claims to ijma among the early Shia. There is the case of a sheikh who contradicted his own claim to ijma 70 times, which raises the questions of what does ijma mean in such a case? Because some of the early scholars rejected solitary traditions, some of the claims of ijma may have referred not to literal consensus, but to a tacit consensus that such an opinion exists and has some support or evidence. I don’t agree with this, but it is there.

M. Ayoub: The imam is the safeguard of the integrity of the society. In the absence of the Imam scholars can err and if each scholar can err individually, it is possible that all can err collectively so you can have no ijma. Suppose the entire Shia community were to agree on an era, that would be cause for the imam to return.

Kenneth Honerkamp: I know of no one who was attracted to Islam by fiqh or aqîda. People are attracted by the heart in the community or because of Sufism. As far as women being the agents of the marriage contract, in Morocco, it is the women who do everything and the men are informed at the end of the process. Perhaps the scholars have distanced themselves for the ummah.

Khetia: If you are interested in more on this subject, Harvard published a wonderful book devoted to the Islamic marriage contract (The Islamic Marriage Contract: Case Studies in Islamic Family Law). By Shia law, couples can amend the contract by mutual consent regardless of whatever terms may have been included by the walî.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute