ISS 408 Advanced Study of Muslim Law i Ibadan Distance Learning Centre Series ISS 408 Advanced Study of Muslim Law By Dr. Kareem Muritala Kewuyemi (B.A, M.A, AAT, MBA, ACA, Ph.D) Department of Arabic and Islamic Studies University of Ibadan Published by Distance Learning Centre University of Ibadan ii © Distance Learning Centre Series University of Ibadan Ibadan. All rights reserved. No part of this publication ym bae reproduced, stored in retrieval, system, or transmitted in any form or by any means, electr,o nmicechanical, photocopying, recording or otherwise, without permission of the copyright orw. ne General Editor: Prof. Bayo Okunade Series Editors: Mrs. Temitope A. Omoloye Typesetted @ Distance Learning Centre, Universfi tIyb aodan iii Table of Content Pag e Lecture One: Original Sources of Muslim Law … … … … 1 Lecture Two: The Sunnah as the Second Original cSeo oufr Muslim Law … 9 Lecture Three: Contributions of Early Companion sL etogal Knowledge … 14 Lecture Four: Ijtihād and Mujtahid … … … … … … 20 Lecture Five: The Closing of the gate of Iājtdih (Insidād bābu al – Ijtihād) andT aqlīd… … … … … … … … 28 Lecture Six: Marriage in Islam… … … … … … … 34 Lecture Seven: Modern Reforms Concerning Marriage…… … … 45 Lecture Eight: Divorce in Islam, Modern Reforms ceornning Divorce and the Islamic Perspective… … … … … … 54 Lecture Nine: Inheritance in Islam, the Reforms tahned Islamic Perspective… 60 Lecture Ten: Siāysah Shar‘iyyah… … … … … … … 71 Lecture Eleven: The Three Major Categories of Csri mine Islamic Law… … 75 Lecture Twelve: Al–Ta‘zīr… … … … … … … … 80 Lecture Thirteen: Takhayyu rand Talfiq… … … … … … … 86 Lecture Fourteen: Recent Demand for Sī‘haahr in Muslim Countries… … … 92 Lecture Fifteen: Muslim Women and Modern Reforms … .. … … 100 iv General Introduction and Course Objectives Muslim law (Shaīr‘ah) is a way of life of every Muslim in the sentshea t his life, whether relating to human dealingsm (u‘āmalāt) or spiritual aspectsI b(ādāt) is regulated by the Shīa‘arh. The roles which it plays in his life are more than trhoele s blood and water play in the body. The Sharī‘ah is like a manual attached to an electronic geat.d Tghe manual guides the users on how he can use it successfully. If there is a probltehme ,m anual also gives guidance on how to rectify the problem. In the same vein, the Sī‘haahr guides not only all aspects of a Muslim’s l ibfeu,t also the society at large. This is because the aml asneunt by the Creator of this world to guide the inmates is the Shīa‘arh. The Qurā’ n which represents the will of Allah communicateod tht e Prophet through angel Jibril is the first primaoryu rsce of Muslim Law. The Sunn achomes next only to the Qurā’n in relation to the Muslim law. Prophet Muhammas dt hie only authoritative representatives of the political and legal sovenrteyi gof Allah on earth because he was the one who received the revelation. Therefore, all Mus limusst accept his decisions and follow his commands without any reservation. Advanced Muslim Law (ISS408) is to further thed setnut’s knowledge on Muslim Law. This course is written to prepare the students to aec qtuhier skills needed for proper understanding of difficult areas in Muslim law. Efforts were made stiomplify as much as possible the areas that normally give the students, the lecturers and thhaerī ‘Sah scholars problems. Hence, the course is specifically designed:  to introduce you to legal injunctions containedt hine Quran and the Sunnah: the two original sources of Muslim law  to introduce you to contributions of early compannsi oof the Prophet to legal knowledge.  to expose you to the roles oijft ih ād as the main tool used to interpret the divine message with a view to relating it to changing conditions, and to therembay king the Shaī‘rah relevant for all times and eras since the Divinev eRlaetion and the Sunnah ceased after the death of the Prophe t.  discuss the modern reforms introduced into Isla mwaicys of marriage, divorce and inheritance  to explains iyāsah shar‘iyyah (the government’s authority to legislattea)k, hayyu r(the freedom of a person to be guided by the law of ro sthcehools of Islamic jurisprudence) and talfīq (the fusion of juristic opinions of diverse matu; raen) d their applications with regard to Muslim law  to explain in-depth the three main categories oimf ecsr in the Islamic penal system: ḥadd, al-qiḥāḥ and al-ta‘zīr.  to make known the efforts of Muslim towards thei nrtero- duction of Muslim law in Muslim countries particularly in Nigeria  expose you to the agitations of the modernistse agsa rrds the status of women and the Islamic perspective/solutions towards them; ansdh tow you that all their agitations have already been taken care of in the Qānu ra’ nd the Sunnah; and no religion except Islam accords women the recognition that befits themt;s stuhieir nature and protects them against disgraceful circumstances of life; and tihna Itslam there is no difference between v males and females; and that only excelling in vei,r tpuiety, spiritual and ethical qualities can make people, males or females, stand out frnoem a onother. vi LECTURE ONE Original Sources of Muslim Law Introduction In this lecture, I intend to introduce to you threig oinal sources of Muslim Law. This is because at the root of every law lie certain religious scoeusr. These sources give the directions on how a Muslim should live his life. Muslim Law is also beads upon the codifications of injunctions outlined in them. They are required to base thoetiar l tway of life on the teachings contained therein. Objectives At the end of this lecture, you should be able to: 1. explain the similarities and the dissimilaritiest wbeen Muslim and Islam in relation to Islamic law. 2. explain how Islam is different from other religio ns 3. discuss the Quārn’ and its other names in relation to Muslim law 4. mention the first and the last revelations. 5. discuss the four stylistic devices contained in l ethgeal injunctions in the Quārn’ . 6. mention some legal injunctions (at least 20) o fh tholey Qur’ān. Pre-Test 1. Differentiate between Islam and Muslim 2. Explain how Islam is different from other religio. ns 3. What are the other names by which the Qānu ris’ called? 4. Discuss the four stylistic devices in the legaul nincjtions of the Quār’n. CONTENT A Muslim is he who believes in Allah and submitsta tlloy to His will (Q2:112) while law refers to the distilled essence of the civilization of tpheeople. It must be mentioned that there must be basic religious beliefs and concepts which peopolled hto be true at the root of every great civilization. This is true of Muslim Law which ist hoerwise referred to as Shī‘arh. The religion of Islam was sent to mankind and taught by the HPorloyphet Muhammad. Those who believe in it and practise it are Muslims. They are not Muhmaamdans. The religion of Islam is not named after Prophet Muhammad because he was not its efor.u nItd is the religion of Allah. Allah says: This day, I have perfected for you, your religioIsnl a(m) and completed my favour on you and chosen for you Islam as a renli g(Qio. 5:3). 1 However, other religions were named after theirn fdoeurs. Buddhism was named after Gotama Budha of India; Zoroastrianism was named after Zasotreor; Confucianism was named after its founder, Confucius. It was at Antioch, hundredsy eoaf rs after the death of Jesus Christ that the word Christianity was first pronounced as the rieolnig of the followers of Jesus Christ. Islam was not named after any prophet (Ali, 1986). It was neadm by its Founder, Allah. The religion of Islam was given to mankind through Adam, the fPirrsot phet of Allah on earth. Islam is a verbal noun derived from an Arabic worda, s“lama” which means peace and total submission to thle wil of Almighty Allah. In the same vein, Muslim ism u al-fā‘il (a doer of an action) and is also derived from the Arabic worda “slama” meaning one who relates to others in peace abnmd istsu totally to the will of Allah. The name was first opnrounced by Prophet Ibrahim (Q22:78). Therefore, both the religion’s name and the namvee ng ito its adherents preach peace and submission to the will of Allah. To put it differtelyn and simply, we achieve peace in this world and eternal rest in the hereafter if we follow Mimus llaws known as Shīa‘arh. The Original Sources of Muslim Law The Qur’ān is one of the primary sources of Muslim Law. eItp rresents the will of Allah communicated to the Prophet through angel Jibtsri lc. oI ntents were treasured up in the memories of the Muslims and were also written down on vasri oubjects such as palm leaves, skins and shoulder bones of animals. The Qāunr ’is the speech of God eternally existing with eHsis ence. According to the majority of Muslims, it is divinine its meaning and language. It is a source of law to guide the practical life of man. It has reinmead the same for more than 1432 years ago. The Muslim Law differs from other man-made lawst hina t its source is Divine in nature. The source was communicated in its final form throug hs inagle human channel i.e. Prophet Muhammad. He, Allah has promised to protect tohuisr cse of Muslim law from being corrupted by the people (Q15:9). It could be recalled thaet teharlier books were corrupted by their followers. The fountain-head for not only Islamaicw l but also the Religion of Islam enjoys the special protection of Allah. That is why it rema iinstact up till today. Allah says (Q15:9I)n: nā naḥnu nazalnā dhikra wa innā lahu lahāfiḥūn (“Verily We: It is We Who have sent down the Dhikr (i.e. the Qurā’n) and surely, We will guard it (from corruption ”) The Qur’ān is divided into 114 chapters and was revealetdh eto P rophet gradually, over approximately twenty-three years starting from 6C1.0E . in Makkah and Madinah. The Qāunr ’ has various names and the names by which it iesd c alrle stated in the Quānr’ itself.  It is Al-ḥukm (the judgement) because it provides directionsu dtog ej ment. Allah says: ‘And thus have we revealed it as a clear judgem(Qen1t3’ :37).  It is al-Furqān ( the Criterion ,Q25:1) in the sense that it ies itnhstrument by which man can come to discriminate between truth and falsde,h too discern between the real and the unreal, the absolute and the relative, the good t haen devil, the beautiful and the ugly.  It is Ummul Kitāb (the mother of the book).  It is a recitation in the sense that it is a meoafn cso ncentration upon the truth.  Al-Kitābu (the Book). It is a book that is complete in ift.s e“Tl his is a perfect book; there is no doubt in it; It is a guidance for the rigohutes” (Q 2:2)  Adh-dhikr (the Reminder). It is a book that reminds mant so fd iuty to God and fellow mankind. “Verily, We ourself have sent down thish oerxtation, and most surely We will be its guardian” (Q15:9) 2  Al-Huda (the Guidance).It is a book that guides one to ritghhet way or to the correct judgement. And when we heard the call to guidanwcee , believed in it, and he who believes in his lord has no fear of loss or injcues.t i(Q72:13) The first revelation It was on the 1t5h night of Rama n in the 41stā year of the Prophet that the revelation of the Qur’ān began. The first revelation is containeds uinra tul ‘alaq (Q 96: 1-5):  ٍََ (2) اَْْأ َوَر'َ اْ َ&ْآَُم (3) ا ِي َ َ ْاَْْأ ِِْ َر َ ا ِي َََ (1) َََ اْ ِ!ْ ََن ِ (5) َْ,ْ-َ ْ َ  َ*َِ (4) َ َ اْ ِ!ْ ََن َِْ “Read in the name of your Lord, Who created maonm f rsomething that hangs. Read! And your Lord is the most bounteous, Who taught man theo uf sthee pen; taught man what he knew not” Another opinion with regard to the issue of thes tf irrevelation is Q74: 1 – 6S.u ratu al– Fātiḥah is also regarded by some scholars to be the efirvsetl artion. Some scholars considebreads mallah (In the Name of Allah, the Beneficent the Merci futol) be the first revelation. To reconcile all these opinions, the most reasonable opinion is Q1 9–6 :5 based on the Hadith of the Prophet as narrated by Aishah thus: The angel came to him and asked him to read. Thoep hPert replied, ‘I do not know how to read’. The Prophedtd aed, ‘The angel caught me and pressed me so hard tchoaut lId not bear it any more. He then released me and a agsakined me to read and I replied, ‘I do not know how to dr’e. a Thereupon he caught me again and pressed me a ds econ time till I could not bear it any more. Then hee raesled me and again asked me to read, but again I replie dd, o‘I not know how to read (What shall I read?).Thereupon he caught me for the third time and pressed me, anedn th released me and said: “Read in the name of yourrd ,L o Who created man from something that hangs. Read! An your Lord is the most bounteous, Who taught ma nu sthee of the pen; taught man what he knew not (Q96:1-5)” Based on this Hadith, the most reliable and ackendogweld opinion by majority of Muslims is Q96: 1-5. As regards suratul Mudaththir (Q 74: ,1 w-6e) could say that it was the first revelation with which Prophet Muhammad was made an apostle maensdsenger of AllahS. uratu al– Fātiḥah was the first revelation to the holy Prophet one tmhatter of I‘bādah (worship). Basmalah was regarded to be the beginning of every āQnuicr’ chapter except chapter 9. The Last Revelation The verse that is believed to be the last revenla isti oQ 2: 281. “And fear the Day when you shall be made to return to God; then shall every soupl abide in full what it has earned and they shall not be wronged”. This verse is regarded as the r elavsetlation because Prophet Muhammad lived for only 9 days after its revelation and there wnoa sa ny other revelation given to him afterwards. As regards Q 5:3, it is popularly believed to be ltahst revelation on thea y‘ātul ‘aḥkām (legal 3 injunctions). However, it is not considered to bhe tlast revelation on the ground that it was revealed during the farewell pilgrimage, and thweraes no doubt the Prophet lived for 81 days after the revelation of Q5:3. It could only be rredgead as the last revelation as far as legal injunctions contained in the Quānr’ are concerned. ‘Ayātul ‘aḥkām in the Qur’ ān (Legal Injunctions of the Qur’ān) They are the verses which contain the legal injiuoncst of Allah. These injunctions govern the conduct of every Muslim from birth to death. Theer sves are many in the Qāunr’ and provide the touchstone to discriminate between the falsehoodd t haen truth; to discern between the real and unreal; the good and the evil etc. Unlike the o tmhearn-made laws which are amendable from time to time, it is not amendable. Recently, in eNriag, a constitution review committee of the National Assembly was constituted to review the eNriiagn Constitution. This is with a view to deleting, adding and modifying some items in then sctiotution so as to match the present conditions of man. The Quārn’ is a book whose meanings are valid always bec iat ucsoencerns not a particular fact in the particular time buutt htrs which being in the very nature of things are perennial or remain the same. It was revealed bdy iGn opiece-meal. The Medinese chapters which form one-third of the contents of the Qāunr ’relate to the period of victory and power. They are rich in legislative materials. They deaitlh w the institution of public prayers, fasting, pilgrimage, prohibition of wine, marriage, divor caed,ultery, inheritance to mention but a few. One of the teachings of the Holy Qāunr ’ is Allah’s commandments. These commandments are the legal injunctions contained in the Qāunr.’ One special feature of the Qāunr ’ is that its language is arranged in stylised patterns. Foulirs tsicty devices are noted in the legal injunctions contained in the Quārn’ (Ahmed, 2004). I‘j āz (Brevity) These are the legal injunctions in the Qānu rw’ hose details are not given. They are in the fofr m brevity. Brevity in the sense that fewer words oabtev ithe need of more. To put it simply, it is where the words carry the meanings in full viewh. e Tholy Qurā’ n does not give the detailed rules. The kernel of a rule is presented, ands uablls idiary details are omitted. The subsidiary details are contained in the Hadith of the Prop h eAtl.lah commands Muslims to observe salat without mentioning how and when to observe it. Tnhuem ber of rakah to be observed for each of the prayers, prerequisites of salat such as abnl,u tthioe kinds of salat, etc are not contained in the Qur’ān. It is Hadith that gives the details. In the s avmeein, the broad principles of some acts such as Zakah, Hajj and Sawm are given in the āQn uwr’ithout mentioning their details. ’Akāmu al-Mujmal wa al-mufaal (Detail after Epitome) The Qur’ān uses this stylistic device to give the summairoizna ot f some legal injunctions in brief while other verses give their details to some etx. teHnadith andI jtihād give the rest details. Qur’ānic injunctions on war, booty, relations with nonu-sMlims, etc are discussed briefly in the Qur’ān while their other details are given to some etx itne nother parts of the Quārn’ . The rest details are taken from the Hadith aInjtdih ād (Usman, 2006; Doi, 1984). 4 ’Akāmu al-mufaal (Detail) In the Qurā’ n, there are verses that give full information eagsa rds the commandments of Allah. These verses awaken people’s conscience and intfhoerm of Divine Law in their affairs. Qur’ānic verses that contain commandments of Allah onr dmeru, sariqah (theft), zinā (fornication) etc fall under this category. This b iescause the details on how each of the above- mentioned cases should be handled and executecdo natraein ed in the Quārn’ . Maqāidu al – Sharī‘ah (The aims of Shaīr‘ah) or uqūqu Allah (rights of Allah) The objectives of the Shīa‘arh in relation to man is to preserve hdīisn (religion), nafs (life), nasl (progeny), ‘aql (intellect) and māl (property). The Quār’nic injunctions directed towards the realization of these five objectives are calMleadq āḥidu al – Sharī‘ah or ḥuqūqu Allah (rights of Allah). This refers to everything that involves thbenefit of the community at large. The objectives of Shaī‘rah have been emphasised in the large number tosf otef xthe Qurā’n. Some of the verses of the Quārn’ from which the objectives may be derived are: Q325;: Q2: 179 and Q4 :29. Thereforeḥ, uqūqu Allah corresponds with public rights or public ipcoyl in modern law. The requirement of the conformity of contract wtihthe objectives of the Shīa‘arh is similar to the requirement of modern law that an agreement shnooutl db e against public policy. Some Legal Injunctions of the Holy Qur’ān Adoption: It is not recognised in Islam i.e. Islamic lasw a igainst adoption. Q 33: 4-5 Adultery/Fornication : Adultery is prohibited Q17:32; Q25 : 68; Itusn pishment Q24:2; Evidence required to prove it Q24:4; Adulterer myianrgr adulteress and idolaters Q24: 2; Rules of entering another person’s houos epsre tvent adultery Q24: 27- 30 ; False accusation against one’s wife and chaostme ewn and their punishment Q 24: 4 – 10.; Aggression: Law against aggression and permission of wagianrg. Qw2: 190; Q22: 39 – 41. Alcohol drinking: Law against drinking liquor Q2: 219; Q5: 90 – 9 1. Backbiting: Law against backbiting Q49: 12 Breast feeding: Period of breast-feeding. Q2: 233. Collateral Security: Law regarding collateral security. Q2: 283. Contracts: Law of contracts Q2: 282. Fulfilment of all obalitgions Q5:1; Repudiation of contracts Q 8 :58. Defamation: Law against defamatory speech Q 4: 148 Divorce: Rules of divorce Q2: 229 – 230. Rules of ‘Iddaha i(twing period) for widows, divorced women, pregnant women and others5 :Q 1 ;6 Q2: 234; Q2: 228; Q 65 : 4; Law of Revocable Divorce Q2: 2 3L0a;w of Irrevocable Divorce Q2: 230. Custody after Divorce Q2: 233. Other types of divorce:  Ila – swearing Q2: 226 – 227  Mutual imprecation (Liā‘n Q24: 6 – 9).  ihār Q 58 : 1 – 4 5 Evidence: L aw of Evidence Q2: 282. Family Law: Relationship of husband and wife. Q2: 187; Rtsi gahnd obligations of husband and wife Q2: 228; Q4: 19. Confining women guilty mofisbehavior Q 4: 16. Polygamy and its restrictions Q4: 3; Q4: 129. Lagwa inast marriage with idolaters Q 2: 221; Q60: 10 -11. Law prohibiting ill-treatmt eonf a wife Q2: 237. Duties and rights of husband and wife Q4: 34; Q2: 2T2h8e. prohibited degrees of marriage Q4: 22 – 24. Widows and divorced women 2Q322:; 234, 235; Q2: 241; Q2: 236. Law against cohabitation during smtreunation period Q2: 222 Food: Guidance for food Q5: 4. Lawful food Q2: 168; Q6: 114; Q5: 93 Unlawful food Q2: 173; Q 5: 3; Q16: 115; Q6: 145; Q4: 65. – Gambling: Laws against gambling Q2: 219; Q5: 90 – 91. Government/Constituted Authority: Obedience of those in authority Q 4: 59 Highway Robbery: Q5: 36 – 37. Homicide: Law against homicide Q4: 92 – 93; Hunting: Law of hunting Q 5:5 Infanticide: Law against infanticide Q 17: 31 Inheritance: Law of inheritance Q4: 7 – 12, 176; Q 4: 7 –; 1 Q24 : 176. Intoxicants/Alcohol drinking : Law against intoxicants Q 2:219; Q5: 90 – 91. Justice: Law of justice Q5: 8; Q4: 135. Judicial Determination of Disputes Q4: 65. Law against obscenity and pornography :Q17: 32, Q 24: 30. Loan: Rules of Debt Q2: 282; presence of witnesses2 Q862 : Monasticism: Law against monasticism Q57:27 Murder: Law against murder Q 17: 33; Q25: 68. Law otfa Rliaetion Q2: 178. Nicknames: Law against nicknames Q 49: 11 Orphans: Laws regarding treatment of orphans Q4: 127. Penalty for misappropriation of property Q 4:10. Polygamy: Rules of polygamy Q4: 3; Q4: 129. Property rQite2s: 188; Q4: 29. Punishment for homicide Q4: 92 Punishment: Purpose of punishment Q 23: 76 – 77. Punish mfoer natdultery Q24: 2 Punishment for culminating chaste woman Q24: 4;i sPhumnent for theft Q5: 38 Riba Interest: Law against Riba Q2: 275 – 279; Q3: 130; Q 3390. : Scandal Mongering: Law against scandal mongering. Q 24: 23 – 26. Secondary Sources of Islam Law:  Ijmā‘u (Consensu)s Q 4: 59, 115  Qiyās (analogy) Q2: 227; Q59: 2  Ijtihād Q 29: 69. Sharī‘ah: Purpose of Shaī‘ar h Q4: 28 Slander: Law against slander Q 104: 1; Q 24: 4, 23 – 26. 6 Sunnah (the second source of Muslim law: )Q48: 9 – 10; Q 3: 31; Q4: 69; Q4: 65 etc; Q24: 52; Q4: 80. Theft: Law against theft and armed robbery. Q5: 38. Treaties: Q9: 3, 6, 11 and 12 Trust: Q4: 35; Q8: 27 Vowing: Abstinence from wives and its punishment Q 2: –2 2262 7. Waiting period before remarriage: Q2: 222 Will : Making a will Q2: 180. Witness to a will Q 5: 61 0– 108. Changing a will Q2: 181. Correction of partiality made by a testator: 1Q82 Zihār Q33: 4; Q58: 2 – 4 Summary A Muslim is he who believes in Allah and submitsta tlloy to His will. The name ‘Muslim’ was first pronounced by Prophet Ibrahim. Islam is nda mbey Allah (Q5:3). It is the religion of a Muslim. Both the religion’s name and the name g ivtoe nits adherents preach peace and submission to the will of AllahA. l-ḥukm (the judgement) and aFlu- rqān (the criterion ) are some of the other names of the Qāunr, ’Prophet Muhammad received the first revelatQio n9 6 ; 1 – 5 when he was forty years and the last reivoenl a(Qt 2:281) when he was about 63 years. ‘Ayātul ‘aḥkām (the legal injunctions) in the Quārn’ are many and they provide the touchstone to discriminate between the falsehood and the .t rIu‘j tāhz (brevity) andm ufaṣṣal (detail after epitome) are some of the stylistic devices usetdh ein Q ur’ān. Legal injunctions on adoptions, robbery, adultery etc are contained in the Qānu r’ Post –Test 1. Mention 20 of the legal injunctions in the firsti goinr al source of Muslim law. 2. Four stylistic devices are noted in the legal incjtuionns of the Qurā’n. Discuss them. 3. Discuss the Quār’n and its revelation in relation to Muslim law. 4. What are the similarities and dissimilarities beetwn eIslam and Muslim in relation to Islamic law? References Ali, M.M. (1986) The Religion of Islam.New Delhi: Taj Company Muhammad Muhsin KhanS. ahih al-Bukhari Arabic-Englis. hVolume I. Beirut: Dar al- Arabia Doi, A. I. 1984.S harī‘ah (The Islamic Law). London: Ta Ha Publishers. Ahmed, A. (2004)A New Approach to the Study of the Qāun.r ’New Delhi: Goodword Books.13-47 Abdul-Wahab, T. A. (2006)A pplication of Shaīr‘ah in Southern Nigeri.a Shaki: Al Furqan Publishers. 7 Yusuf Ali (1999) The Holy Qurā’ n, translation and commenta. ryBirmingham: IPCI: Islamic Vision Usmani M. T. (2006) The Quārn’ ic Sciences.New Delhi: Kitab Bhava 8 LECTURE TWO The Sunnah as the Second Original Source of MuslimLa w Introduction In this lecture, my focus is on the second orig isnoaulrce of Muslim law i.e. the Sunnah. Sunnah refers to the conduct and practices of the Pro pHhaedt.ith means the sayings and deeds of the Prophet. Both Hadith and the Sunnah were used at limntoesrchangeably. Sunnah comes next only to the Qurā’n in relation to the Muslim law. The authority ohfe t Prophet is expressed through Divine will as expressed in the Qāunr.’ Objectives At the end of this lecture, you should be able to: 1. give literal and technical definitions of Sunnah. 2. explain the ways to show the importance of the Sauhn in relation to the Muslim law. 3. discuss the legislative power of the Prophet 4. outline and explain some verses of the Qānu rw’ hich were explained by the Prophet. 5. list 6 works that are recognised as authoritatniv ree liation to the Sunnah/Hadith. Pre-Test 1. Define Sunnah literally and technically 2. What are the ways to show the importance of Suninn arehl ation to the Islamic law? 3. Mention 6 works that are recognised as authorieta itniv relation to the Sunnah. CONTENT Sunnah along with Hadith is counted as a secondrc es oouf Muslim Law. The Arabic word “Sunnah” and its plural “Sunnan” have been used sixteen times in the Qānu.r ’Literally, sunnah means a way, course, rule, mode, or manner of ga cotri nconduct of life while the Arabic word, hadith, literally refers to story, conversation, storyc . e tThe word hadith has been used in the Qur’ān 23 times. It is used for religious communica,t imonessage or the Quānr’ (Q39: 23; Q 68: 44), story of a secular or general manner (Q6: h6i0s)t,orical history (Q20: 9) to mention but a few. Technically, the term is used in a very wide setnos ien clude • the precepts and decisions of the Prophet • his conduct and practices 9 • pre-Islamic customs which had received the tacpitr oavpal of the Prophet. These two words “Hadith and Sunnah” were used satl minoterchangeably though there is a difference between them. The Importance of the Sunnah with regard to the Isal mic Legislation The authority of the Prophet comes next only to Qthuer’ān. It should be mentioned that his authority is not derived through the community’sc eapctance of the Prophet as a person of authority. His authority is expressed through Deiv iwnill as expressed in the Qāunr’. Allah has chosen Prophet Muhammad to explain the āQnu tro’ the people. He is regarded as the expounder of the Qur’ān. Allah says: >ُوَن 1َ2َ-َ ْ3ُ ,َ 7َل ِإَ 3ِ4ْْ َوَ ُ   9ِس َِ َ4 :َ2ُ ْآَ ِ '7ُِ َوَأْ 7َْ 9َ ِإَ 4َْ ا 9َ4ِت َوا :َ ِْ “And we have revealed to you the Reminder so thoaut my ay explain to the people what was revealed to them” Q16: 44. The Qurā’ n commands Muslims to observe Salat (Prayer) beust dno t prescribe the details as regards the time, the number of rakahs; ewtca. sIt the Prophet’s task to demonstrate the forms of prayer practically as well as orally. The Protp ihse the only authoritative representative of the political and legal sovereignty of God on earth abuesce he was the one who received the revelation. It is, therefore, a natural consequ eonfc tehe acceptance of the first principle that the Messenger is entitled to the obedience of those awchkonowledge Allah as their sovereign. The obedience to him is in obedience to Allah. Allahys s: a AَBَ C َأْر9َََْك 3ِ4ََْْ َ?41ًِ< DَEَ ْ Dَُل Iْ*َBَ َأHََع ا Fَ َوَ  ُ-JِKِ اَْ Whoever obeys the Messen hgaesr ,indeed obeyed Allah… (Q4: 80). But no, by your Lord, they can have no faith, lu tnhtei y make you (O Muhammad) judge in all disputes between them, and find in themselvoe sr ensistance against your decisions, and accept (them) with full submission. (4: 65). Q3336: and Q59: 7 are some of the other injunctions on the roles of the Prophet. Theref oarlel ,Muslims must accept his decisions and follow his commands without any reservation. Legislative Power of the Prophet Allah, speaking about the legislative power of Pthreo phet, says: ُُهْ ُ&ْ-َ Pِ4Oِ ْ!ِ ْ>Iَ9ِْ ًD2ُُهْ MBِ ا Dْ2َراِة َواَْ Fُ َوIُOِ-َ ِي M ا  &ُ M اْ :ِ9 Dَُل ا D,ُ:ِ2َن ا -َ َ-ِ ا ُم 3ِ4ََُْ اْ QَRِ:َSَ َوَ-JُWَ 3ُ9َْْ ِإVَُْهْ Tَ-ُ4َ:ِت َو K 3ُُ اَ P' Tِ-ُ9َْ>ِ َوAُ Aَْ,ُوِف َوَ-3َ9ُْهْ َِ اِْْ Fُ,َ 7ُروXُ َوَ YَُوXُ َوا D,ُ:َEا ا 'D9َر ا ِي ُأْ 7َِل َ D9ُا Fِِ َوََZَ َ-ِ Bَ ْ3ِ4ََْ [ْ ََآ M2ِ َواْ َ&ْ\ََل ا ُأوَ ِ[َ ُهُ اْ DTُِ1ْAُن Those who follow the Messenger, the Prophet who nceainther read nor write (i.e.Muhammad SAW) whom they find written with th einm the Taurât (Torah) (Deut, xviii, 15) and the Injeel (Gospel) (John ,x 1iv6), - he commands them for Al-Ma'rûf (i.e. Islâmic Monotheism and all that Islâm hasa oinrded); and forbids them from Al-Munkar (i.e. disbelief, polytheism of all kinds, and ahlla t Islâm has forbidden); he allows them as lawAfut-l Taiyibât [(i.e. all good and lawful) as regards things, deeds, beliefs, persons, food.s],, aentcd prohibits them as unlawful 10 Al-Khabâ'ith (i.e. all evil and unlawful as regards things, dse, ebdeliefs, persons, foods, etc.), he releases them from their heavdy ebnusr (of Allâh's Covenant), and from the fetters (bindings) that were upon them .t hSose who believe in him (Muhammad SAW), honour him, help him, and followe thlight (the Qur'ân) which has been sent down with him, it is they whilol bwe successful (Q7:157). The legislative authority is bestowed upoen Pthrophet. He introduced certain things which were sanctioned by Allah. An example is the pcraec otif Adhan to which the Quārn’ refers (Q62: 9). The commands of Allah as well as the proven mcoamnds of the Prophet are binding on every Muslim. They must be obeyed. The life pattern oef Pthrophet is a model for every Muslim. Therefore, a Muslim should carry out his ordersh wouitt any hesitation. The Sunnah was and still is, and will remain one of the original sourcesM ouf slim Law, second only to the Quānr’. An example is his Legislation against plucking of eryoewbs and legislation against tatoo. “May Allah’s curse be on the woman that pluck eyebronwds tahose who ask for their eyebrows to be plucked and those who tattoo. (Bukhari & Muslim). The Sunnah explains the legal injunctions tacionned in the Qurā’n that are ambiguous (mujma)l , general and absolute. To put it differently asnimd ply, there are legal injunctions in the Qur’ān which are capable of so many interpretations ,P trhoephet clarified them. The injunctions that are general were clarified by the Prophet wa itvhiew to making them specific. The absolute injunctions were restricted. The Holy Qur’ān says: ٌ4<ِ?َ 7ٌ-7َِ Fُ  ا Fِ َواَِ  7ََ̀اًء Aَِ َآََ: َ َ>ً Aَ3ُ-َIِ-ْا َأD,ُKَْBَ aَُِر ِرُق َوا َوا “Cut off the hand of the thief, male or female,a a rse compense for that which they committed, a punishment by way of example from Allâh. And Alliâsh A ll-Powerful, All-Wise” (Q5: 38). It is the Sunnah that restricts the punishtm toe na thief that steals a quarter of dinar and above. The Prophet said: “A thief’s hand should bneo tcut off except for a quarter of a Dinar and upwards. In a version by Ahmad is: “Cut off a ft’hsi ehand for a quarter of a Dinar, but do not for what is less than that”. “The Prophet (PBOHd) h(a thief’s hand) cut off for a shield worth three Dirhams”( Bukhar and Muslim). He also expeladi nthat the thief’s hand should be cut off from the wrist. ḥulm in the general sense means every wrong evenis i fs imt all. However, it was explained by the Prophet to measnh irk. He used a verse of the Qāunr ’(Q31: 13) to explain it. Verilys, hirk is a great wrong? 4>َِ ٌْ>ُ cَْك َ ن ا  cْEُِْك ِ Fِ ِإَ M 9َُ -َ Fُ>ُ,ِ-َ Dََوُه Fِ9ِْ َوِإْذ ََل ُ ْ*Aَُن ِ “And (remember) when Luqmân said to his son whe nw ahse advising him: "O my son! Join not in worship others with Allâh. Verily! Joining othse rin worship with Allâh is a greaZt ûlm (wrong) indeed” (Q31: 13). Another example is: “And when you travel hine tland, there is no sin on you if you shorten your prayer, if you fear that the disbelievers maattya ck you” (Q4: 101). The Prophet explained the compulsory prayers (Zuhr, Asr and Ishai) tos hboer tened .The allowance is made only for the four-rakah prayers. He also explained thiast nito t only when one is in a state of fear that one can shorten one’s prayer, one can shorten it i fi so naelso in a state of security. He said: Th ias is charity that Allah has expended to you, so take c Hhaisrity” (Muslim). 11 Another example is: “Forbidden to you for dfo aore dead animals, blood, the flesh of swine”. (Q5: 3; Q 6: 145). It is the Sunnah that explaihnast tdead locusts and fish, as well as liver and spleen of blood are lawful. The Prophet said in H haisdith: Two types of deceased animals and two types of blood have been made lawful for usc.u Lsot and sea fish (meaning all types of fish), and the livers and the spleen”. It is also the Pherot pwho forbade domesticated donkeys, predatory animals with fangs, birds with claws (Bhaurki). Allah says: D9ُا MBِ اْ 4َTَِة َZَ َ-ِ ِ Mَِه Pُْ ْزِق  اَ 4َ:ِت ِK َم ِز-aَ9َ ا Fِ ا M2ِ َأََْج ِ ِ,َ:ِدXِ َوا ?َ َْ Pُْ PُY اْ hََ-ِت ِ َ*Dٍْم َ-ْ,DAََُن 1َ ُ َ aِ َآََِ4َ*ِ Dْ-َ aًYََم اَِْ 4َ ْI' ا “Say (O Muhammad SAW): "Who has forbidden the adtiorn with clothes given by Allâh, which He has produced for his slaves, aAnt-dT ayyibât [all kinds of Halâl (lawful) things] of food?" Say: "They are, in the life of this worldo,r fthose who believe, (and) exclusively for them (believers) on the Day of Resurrection (the disebveelris will not share them)." Thus, We explain the Ayât (Islâmic laws) in detail for people who have knodwgle” (Q7:32). The Sunnah made a clarification of the adoerntms that are forbidden and to whom they are unlawful. The Prophet said gold is lawful for felmesa but unlawful for males. The importance of the Hadith in deriving mIsliac laws is too obvious to be emphasised. Many Qur’ānic verses cannot be understood without the Su nTnhaeh .Sunnah is contained in the six collections of Hadith and the Muwatta of Imama lMik. The 6 works that are recognised as authoritative in relation to Hadith are: 1. Sahih al – Bukhari by lmam al – Bukhari. 2. Sahih al – Muslim by Imam Muslim 3. Sunnan Abu Dawud by Abu Dūad’ 4. Jami‘u al – Tirmidh by Al – Tirmidhi 5. Sunnnanu ibn Majah by Ibn Majah 6. Sunnanu al – Naāis by Al – Nasāi. Of all these, Sahih Bukhari and Sahih Musalimre believed by majority to be completely authentic. They are second to the Qānu ra’ s sources of the laws of Islam. In additionh teos et six books of Hadith, the Muwatta of Imam Malik is a gdo coollection ofa hadith in the sense of the legal traditions. It was put together by the fourn odfe one of the four major schools of law in Islam. Summary In this lecture, I have discussed Sunnah, the sde cooringinal source of Muslim Law. The term Sunnah is used to mean the precepts and decisfi otnhse oProphet. It also includes pre-Islamic customs which had received the tacit approval eo f Pthrophet. The authority of the Prophet is next to the Qurā’n. He was regarded as the expounder of the āQn upr’articularly the legal injunctions contained therein. Copious examplese w geivren in my discursion. The legislative authority is bestowed upon the Prophet by Allah .i sH tehe only authoritative representatives of the political and legal sovereignty of Allah on teha br ecause he was the one who received the revelation. Therefore, all Muslims must accept dheisc isions and follow his commands without any reservation . 12 Post-Test 1. Discuss the ways to show the importance of Sunn arehl ai tion to the Muslim Law. 2. Give literal and technical definitions of Sunnahth w riegard to Islamic legislation. 3. Discuss the legislative power of the Prophet. G eixvaemples. References Al-Hafiz, H. (1996).B ulughu al-maram part I&1.1 Riyadh-Saudi Arabia: Dar-us-Salam Muhammad Rahimuddin, 198M9.u watta Imam Mali.k Beirnt: 1F litibaa’ah wan-nashr. Al-Hafiz, H. (1996).B ulughu al-maram part I&1.1 Riyadh-Saudi Arabia: Dar-us-Salam Abdul Hamid Siddiq, 1974S. ahih Muslim volume I.I IBeirut: Dar Al-Arabia Ali, M.M. (1986) The Religion of Islam.New Delhia:Tj Company 1-5 Khan, M.M.(nd)S ahih al-Bukhari Arabic-Englis.h Volume III. Beirut: Dar al-Arabia Shaykh Safiur-Rahman, M. and group of scholars0. 0(2).0 Tafsir ibn kathir Abridged volumes. Riyadh: Darus Salam. 13 LECTURE THREE Contributions of Early Companions to Legal Knowledge Introduction The aim of this lecture is to introduce you to croibnuttions of early companions of the Prophet to legal knowledge. They lived and associated themese wlvith the Prophet during his lifetime. They were well aware of the wisdom and purposesin bde ahll his affairs. Therefore, they had better knowledge and knew the reasoning behinhdi sa ldl ecisions and judgements. Objectives At the end of this lecture, you should be able to: 1. explain the meaning oḥf aḥabah and their roles. 2. discuss the roles played by Abubakar in the ar eZaa okaf h after the death of the Prophet 3. state the contributions of Abubakr to law of inhtaenrice. 4. discuss how Umar handled the case of theft durhineg p teriod of hunger 5. state some contributions of Uthman to the standzatridoin of the Qurā’n. state the three things Ali used to contribute gtoa l eknowledge. 6. explain how Ali reached his decision of 80 lashse sp uanishment for alcohol-drinking. Pre-Test 1. Explain ḥaḥabah 2. Why were the companions’ contributions to legal wknleodge regarded as authentic? 3. Explain the roles played by Abubakr in the areaZ aokf ah and law of inheritance after the death of Prophet Muhammad 4. How did Abubakar handle some people that were eing aing homosexual practices? 5. State briefly some contributions of both Umar anthdm Uan to legal knowledge? 6. How did Ali reach his decision of 80 lashes as sphumnient for drinking alcohol? CONTENT The Prophet and his companionss (ahabah) ḥaḥabah means the Prophet’s companions who lived and iaastesodc themselves with the Prophet during his lifetime. They witnessed Pro’psh deet eds. Those who were present informed 14 those who were absent of his sayings and deedsp.l eP weould come to the Prophet and asked him different questions and he would respond tom t.h Meany cases were referred to him and he would pass his judgement. The Prophet would pranisye companion whose actions are good with a view to making him do more and he would ecoctr rthe erring ones. The companions understood the situation in which all his affairess, ponses, judgments, corrections, pieces of advice and addresses took place. They were welrle a owfa the wisdom and purposes behind all his affairs such as sayings, responses, judgmemnuttsu, al relations, personal conduct, various political and economic matters and other deeds ubsec ahis decisions, his approval or disapproval of various deeds of his companions oatnhde rs took place in their presence. Therefore, they had better knowledge and knew ethaes orning behind all his decisions and judgments. After his death, many affairs were referred tom th aend they were able to contribute heavily because of their association with the Prophet dgu hriins lifetime. They useidjt ihād to solve so many problems successfully during the lifetime hoef Pt rophet and after his demise because their close association with him had afforded them thael srense and the basic purposes behind the Qur’ānic rules. Those who came after them did not hahvise ot pportunity. Therefore, the companions particularly the four rightly guided ipchasl were able to contribute to Islamic legal knowledge. Of the companions who contributed hey atvoi lIslamic legal knowledge both during the lifetime of the Prophet and after his demisere w Aeli b. Abi Talib, Aishah, Umari bn al Khattab, Abdullah Ibn Umar, Abdullah Ibn Abbas, Zda iybn Thabit and Abdullah Ibn ‘Abbas. Those companions whose contributions were not h einacvlyude Abubakr, Uthman Ibn Affan, Abu Hurayrah, Anas Ibn Malik and Mu‘adh Ibn JabDaol i(, 1984). Their method was to compare the particulars of events on which they wanted ivtoe glegal opinion with similar matters for which judgements had been given in the Qānu ra’nd the Sunnah. They examined critically all the relevant details surrounding an issue and deduhce dl etgal implications of such an issue. Muslims rely heavily on the way the companions hleadn dsome areas particularly where the Sunnah and the Quārn’ are silent as regards the Muslim legal knowleTdhgies. is because they had an excellent mastery of the Qāunr ’and Hadith. When they learnt some verses theyld w noout go further unless they knew their meanings prop aenrldy acted upon them. They took their time to master them very well. Their mastery of theseo tswources gives them upper hand when it comes to the interpretation of the Qāunr.’ Some time they consulted one another and iujtsiheādd to arrive at a legal opinion that would satisfym th tehat they had cogitated their brain enough and consulted widely on an issue before reaching a lucosinocn. Our attention would be focused only on the rightly guided caliphs because they are lwy iadceknowledged by all the Muslims. Abubakar al – Siddiq’s Contributions to Legal Knowledge It is not possible to mention all his contributio tnos legal knowledge. But our attention would be on the ones that gave Muslims the ability to untdaenrds better some very important aspects of the teachings of Islam. In the area of Zakah, Abubainktaerr preted the words of a Hadith on Zakah quoted differently. He was not satisfied with thite rlal meaning of the Hadith. It was Abubakar who used ijtihād and included Zakah as part of the reasons fori nwga wgar against people. He said: “Zakah is a part of it”. The implication ohf ist is that if Zakah is paid, people and the government would be liberated economically. Th‘eimir ān (faith in Allah) would also be protected. This is in line with the Hadith of thero pPhet which says: “Poverty may lead to 15 unbelief” (Irfanul haqq, 1996). Zakah can allev iaorte eliminate the likely means (i.e. poverty) to unbelief as indicated in the Hadith. Umar mentioned the Prophet’s Hadith onā nIm (belief) to Abubakr to tell him that he could only wage war against people based on their re ftuos ablelieve in Allah or if they committed offences ofḥ udūd such as murder and adultery. “I have been comemda ntod wage war against people until they say that there is no god but hA.l lTahen, if they say this, their blood and their wealth will be spared by me except where due byh t ri(greferring to offences oḥf udūd)” (Bukhari). When there was a disagreement about the wKoarlādl ah used in the Quār’n (Q4:176) in relation to inheritance, it was Abubakar that gav le gal opinion on it. Some people believed it refers to a person that dies leaving no lineals h, enier ither issue nor father or grandfather. Others believed it refers to a deceased without issuea, rdrelegss of whether succeeded by father or grandfather (Irfanul haqq, 1996). Abubakar used his owinjti hād to pass legal opinion on the issue. He said thea t vterse indicates that the sister of thKea lālah is to receive a half of the inheritance; and eif ftahther had been alive, the sister would not have inheritedm f rKoalālah at all. But the Qurā’n does not specify the matter. Abubakar then concluded thaet wthord Kalālah refers to one who dies leaving no lineal heirs in either direction when shaeid: “My opinion, if it is correct, then it is from Allah, and if is wrong, then it is from me a nfrdom the Shaytan. ThKea lālah is one who has neither ascendants nor descendants”. When Fatimah, the daughter of the Prophet adnedmed for an inheritance from the holy Prophet’s property, Abubakr rejected the requeste db aon the Hadith which the Prophet is reported to have said: “We prophets do not inhneorirt leave an estate for an inheritance” (Bukhari). Furthermore, when some people were engagni nhgo mi osexual practices, Abubakar consulted the Prophet’s companions as regards the actionh ohuel ds take. Ali advised him to burn the homosexualist to death. He based his judgementh oant hwappened to the people of Lut who first practised homosexualism. Their punishment wasA thllaht destroyed them. Abubakr wrote back to Khalid, one of his generals who faced this cehnaglle from the people under him, that they should be burnt to death. The action was carriet db yo uKhalid. In the area of appointment by meansb aoyf ‘ah. He appointed Umar to be the Khalifah after him and he told other companions that the appoint mcoeuld only be effective if they agreed to it which they did. It could be seem from our dissciounr s that Abubakr used the Qāunr,’ the Sunnah, the Qiāys and Ijmā‘ as his bases when passing judgement or contnrigb uttoi legal knowledge on any issue. Umar ibn Al-Khatt āb and Some of his Contributions to Legal Knowledge . Before passing a judgement on any issue, Umar w coounldsult other companions and discuss the issue with them so as to reach the best judgem Tehnetsr.efore, he was able to contribute a lot to legal knowledge. He used to relate the particuola r thte general, and could pursue the ramifications of an issue back to basic principinle osr der to see its wider implications. Umar adopted the style of the Prophet bya rineifnrg from issuing an order to his people to do something good if he knew that such an order wosubldj ect them to difficulty and hardship. He also emulated the Prophet’s method of choosinge athseie r of the two things whenever he was 16 faced with a choice. He charged the scholars tcoo dveisr the reasons behind the judgements in the primary texts i.e. the Quārn’ and the Sunnah with a view to applying them two nisesues and challenges. He was able to enact laws on new dpemveelnots. This step prevented his people from looking for legal rulings outside the Qāunr’ and the Sunnah. He took into consideration the public interest when enacting legal rulings to pernetv wrong doing, corruption and other vices. He discouraged people from quoting the Hadith w hsiacyhs: “Whoever says there is no god but Allah would enter Al- Jannah” because people malyy oren that and make no further effort to do good deeds (Taha). Umar suspended amputation as punishmentt efoarl insg because the enabling environment for honest living was not created. During the pde roiof suspension, there was famine in Madinah. There was also temptation of stealing because nogf ehru. An example of the thieves caught and set free by Umar was Hatib ibn Abi Balta’a’s two pelomyees. They were caught stealing a she- camel of a man from Masnah tribe. They confesseadt tthhey had stolen the camel because of hunger. Their employer, Hatib could not pay thesm a and when due. When the matter was verified, Umar set them free and instructed theic ioaflfs to bring their employer (Hatib) before him. The employer confirmed non-payment of theliar rsya. Umar declared: “You employ these young men and you starve them. Now what is proehdib uitnto them has become permissible. By Allah! Since we cannot cut their hands I am go tion gmake you pay a heavy fine”. He then ordered the employer to pay double the price o fS the-camel. This means jobs must be created for all. If it is not possible, a social securitys stem must be put in place to cater for the less – privileged in society. Uthman’s Contributions to Legal Knowledge Uthman who became Khalifah after Umar made a preo mtois work in line with the Quār’n, the Sunnah and the precedent set by Abubakr and UmTharro. u gh this promise, he got the casting vote of Abdu al-Raman and this made him the thihrda lKifah. Therefore, one of his contributions to legal knowledge was using the precedent seth eb yf itrst two caliphs as another source of legislation. Uthman worked in line with the Qāunr,’ the Sunnah and the precedents set by Abubakr and Umar to solve all legal matters he c aamcreoss when he became the Khalifah (Philips,1990). Another example is the standardization of hthoely Qur’ān. He also formulated thIejt ihād that the compilers should follow the dialect of tQhueraysh and that the Quānr’ should be read in line with the Zayd’s way of recitation to removes adgi reement. Ali’s Contributions to Legal Knowledge Ali was the fourth and the last of the rightly geudid Khulafā’. He made use of the Quārn’, the Sunnah andij tihād. He contributed to legal knowledge by meansi jtoihf ād. He considered circumstances surrounding an issue before adduac lienga l judgementi s(tishāb) and was fond of using juristic preference to pass legal judgem(eInstiss hsaan). Ali was always careful when he wanted to pleagsasl rulings. He used to link particular issues to general issues and took into consideration tehlefa wre and well-being of his peoplIes t(iḥlāh) when passing legal rulings. Ali had deep undersintagn. dThrough the Prophet’s prayer, he had a deep understanding of the Qāunr ’ and the Sunnah. The Prophet prayed for him,n gsa: y“iO Lord! Guide his heart and make him speak the .t”r uTthrough this prayer, he had a deep 17 understanding of the Quārn’ and the Sunnah and was regarded as the best inju dMgaedinah. He was able to resolve many difficult cases and thounstr cibuted a lot to legal knowledge. As regards his competence to pass legalg rsu,l ihne said: “By Allah, no verse of the Qāunr ’ was ever revealed except that I knew concerningt wit hwaas revealed, and where and why it was revealed. My Lord has bestowed upon me a heatr t isth uanderstanding and a tongue that is articulate”. One example of his contributions to legal wknleodge was on alcoholic drinking. There is no fixed punishment for alcohol drinking. This led tthoe disagreement about the number of lashes to be inflicted on the offender. It was reportheadt tthe first caliph, Abubakr used to impose forty lashes upon the person who drank. Umar, the se Kcohnadlifah did likewise during the first few years of his caliphate. However, when the numbe r aolcfoholic drinkers increased astronomically, Umar consulted the companions gaas rdres the problem. Ali suggested that the punishment for alcohol-drinking should be increa tsoe d80 lashes i.e. it should be parallel with the punishment for slandeqr a(dhf). This was because he believed that drunkenneuslds cleoad a person to make a false accusation. Through thisp caorimson, he passed a legal ruling on alcohol drinking to be 80 lashes (Irfanul haqq, 1996). Another example is his judgement on joint dmeur.r When Umar consulted Ali as regards the punishment he should inflict on a group of peopolien tjly killed a person, Ali advised him to inflict the punishment on each of them. He saOid :C ommander of the Faithful (Umar)! If a group of people joined together in stealing, woyuoldu not cut one hand off of each of them? When Umar replied in the affirmative, Ali said, “eTnh the same applies in this case”. Umar then ordered the killing of them said, “If all the cietinzs of Sana’a were to join together in murdering one man, I would execute them all”. Ali was bold, fearless and assertive whenw ahnet ed to pass his judgement. On one occasion, his advice was sought as regards a pregnant womhaons ew husband was away on military expedition and was receiving strangers in her h o mThee. woman was invited by Umar. But on her way to him, she miscarried the child for fefa rb eoing invited by the Khalifah. When other Khulafah were giving reasons in favour of Umar, gAalive his candid opinion that he should pay compensation for the child because she lost thlde fcohri fear of him Summary Where the Qurā’n and the Sunnah are silent as regards the Muselgima l lknowledge, the contributions of Sahabah are taken as models tfoo lbloew ed. This is because they were well aware of the wisdom behind the Prophet’s sayingese,d sd and judgements. They examined critically all the relevant details surrounding iasnsu e and deduced the legal implications of such an issue. For instance, Abubakar contributed ien athreas of Zakah, law of inheritance homosexual practices etc. Ali reached his dec isoifo n80 lashes as punishment for alcohol drinking by comparing it with the punishment foar nsdl er. He said the common feature between them is false accusatio n. 18 Post-Test 1. Mention three of the caliphs and state the roplelasyed by each of them to legal knowledge. 2. What are the reasons for considering the counttiorinbs made by Sahabah to legal knowledge as authentic. References Irfan, M. R. (nd).E conomic System under Umar, the G.r eLathore. Ashraf Press Taha, J.A (nd)S ource and Methodology in Islamic Jurisprudence:hMoedtology.Herndon: The International Institute of Islamic Thought Philips, A.B (1990)T he Evolution of Fiq.hLagos: Al –Hidayat Publication Centre Doi, A.I. 1984.S harī‘ah (The Islamic Law). London: Ta Ha Publishers. Malik, F. H. (1952)W ives of the PropheLt.a gos: Al-Waseelat Publisher Khan, M. A. (nd)T he Pious caliphs of Isla.m Kuwait: Africa Agency. Irfanul, Haq.1996.E conomic doctrines of Isla m.Hemdon: International Institute of Islamic thought. 19 LECTURE FOUR Ijtih ād and Mujtahid Introduction This lecture focuses oInjt ihād and Mujhahid. Ijtihād means the ability to interpret Divine Text by inferring new rulings in order to relate it toe wn situations. I shall show that Sīh‘ahr is relevant for all times and eras through the usIejt iohfā d. A person who endeavours to undertand deep meanings of the Qāunr’ and Hadith is calledM ujtahid. Before a person can be qualified to be called a mujtahid, he must have some qualifications. I shall dis caulsl sthe required qualifications of mujtahid and their classificatsio. n Objectives At the end of the lecture, you should be able to: 1. define Ijtihād and mujtahid literally and technically. 2. give evidences from the Quānr’ and Hadith for validatingijt ihād as a source of Muslim law. 3. highlight the qualifications omf ujtahid 4. outline and explain the classification mofu jtahid. 5. state clearly the features iojtfih ād. Pre-Test 1. What isI jtihād? 2. Give and explain briefly 5 of the qualificatio onfs mujtahid. 3. Highlight classification omf ujtahid. 4. Mention the features oIjft ihād? CONTENT Derivation and literal mean of the word. Ijtihād is derived from the five – letter Arabic verbA jh“ ada” i.e. Alif , jīm , tā’, hā’, and dāl .This is in turn derived from the three – lettera Abirc verbal root ojfī m , hā’ and dāl. According to the lexicographers, the word is derived frojumh d‘ ’ which means employment of effort. The use ofJ uhd and Jahd in relation to Ijtih ād Many definitions of the termijt ihād have been given by jurists.J a“hd” and “juhd” mean power and strength. To some scholajarsh,d means hardship and difficulty whijlueh d gives the meaning 20 of power and strength (Ibn Mansur al – Misr). Tlahtete r relates to the Quārn’ ic verse wherein Allah says: Iَ3ُُْ̀هْ ْ4َBَSَُوَن   َ-IُOِوَن ِإ َ َ-ِ IَYَِت َوا  MBِ اَ49ِِiْAُ  اَِْ َ4ِD K Aُ  َ-7ُAِْوَن اَْ-ِ ا ٌ4 3ُ9ْْ َوَ 3ُْ ََاٌب َأِِ Fُ Sَِ ْ3ُ9َْ اِ Those who defame such of the believers who givaeri tcyh (in Allâh's Cause) voluntarily, and those who could not find to give charity (in Allsâ hC' ause) except what is available to them, so they mock at them (believers), Allâh will throw bka tcheir mockery on them, and they shall have a painful torment (Q9:79). To Ibn Al – Athir,j uhd means employing one’s complete strength, janhd means hardship and difficulty. Many definitions ofij tihād have been given by jurists. The common feature of these meanings is that they stress the pointi jtihhaātd involves exertion of mental energy. Technical Meaning of Ijtih ād Technically,i jtihād means the ability to interpret Divine Text by inrfinegr new rulings, in order to relate it to changing conditions, and to the rembayke the Shaī‘rah relevant for all times and eras. Some renowned scholars deifjitniheā d as follows: • Endeavour of qualified jurist to ascertain Sī‘haahr ruling on a legal issue through utmost intellectual exertion. • Ijtihād is exerting oneself and a technical term in Iscla lmawi (Schacht) • It is exerting oneself to form an opinion on a lle mgaatter by applying analogy to the Qur’ān and Sunnah (Macnold). • Ijtihād is the maximum effort made by a jurist to masutseūrl al- fiqh (legal theory) and then to apply those rules and principles in ordoe dri st cover God’s law (Hallaq) • Ijitihad refers to the utmost of a trained jurist to disecro av rule or law for a particular human situation by applying the principles of jupriusdence to the Quārn’ and the Sunnah. • Ijtihād is the maximum effort expended mentally by theis jtu tro master and apply the principles and rules ouf sūl – fiqh for the purpose of discovering God’s law. When Ijtihād is being used, it is independent of any schoMoal d(hhab) of jurisprudence. The jurists usingi jtihād make a decision in Islamic law through personaol retsff. • Ijtihād is the effort (on the part of the Mujtahid) anmdp eloyment of one’s utmost powers to extract a commandh u(km). To put it differently, he saysIj;t ihād in its complete sense is to make utmost effort in achieving a goal sot tiht ais not possible for one to do anything more (al-Ghazali). • Ijtihād is the effort made by fa qīh (jurist) for acquiring the knowledge of the ahka oafm the Shaīr‘ah (Khidri Bek). • Ijtihād means deduction of the ahkam of the Sī‘ahha rfrom their elaborate adillah found in the Shaīr‘ah. (Al-Zarqa). • Ijtihād is a capacity m( alakah) by means of which one obtains the power of dendgu cthie ahkam of the Shaī‘ar h (Abd Samad) Some other scholars have also defiInjteihdā d in different words that are close in meaning to these definitions. In the light of the definitiongsiv en, it can be concluded thIajtti hād means employment of effort and endeavour to one’s utmcoaspt acity to interpret Divine Text by 21 inferring new rulings, in order to relate it to cnhgaing conditions, and to thereby make the Sharī‘ah relevant for all times and era. It does notk em any difference or matter whether it is derived fromj uhd or jahd. This is because effort and endeavour are nohto wutit strain and toil. Both accompany each other. In addition, the commfeoantu re of these meanings is that they stress the point thaijt ihād involves exertion of mental energy in the searocrh a f legal opinion to the extent. Validity of Ijtih ād. Ijtih ād in the Qur’ ān and the Sunnah Ijtihād is confirmed by the Quārn’ and the Sunnah. Evidence for validatiijntigh ād as a source of Muslim Law or Islamic Law is found in the followin Qgur’ānic verses: َ49ِِTْAُ JَAَ اَْ Fَ ن ا 3ُ9ْ ُُ:9ََ َوِإ -َIِ3ْ9َ َ 9َ4Bِ واÌََُه َ-ِ َوا Bَ ْ<ُ9ِْ!ْن 9َEََزMْkَ MBِ ْ2ٍُْء ِ ِْ&َ Dَُل َوُأوِ M اْ D9ُا َأD,ُ4Hِا ا Fَ َوَأD,ُ4Hِا اَZَ َ-ِ '-3َ ا َ- َأ D9َُن ِ Fِ َواْ Dْ4َِم اْ hَِِ َذِ َ 4ٌَْ َوَأْ?َُ Eَْ&ِو-ًِiْEُ ْ2ُ9ِْل ِإْن ُآDُ 'دوXُ ِإَ C ا Fِ َوا ُBَ ْ3ُ9ِْ ِْ&َ Dُِل َوِإَ C ُأوِ M اْ 'دوXُ ِإَ C ا  َأِو اْ DْSَِف َأَذاDُا Fِِ َوَ Dْ َرِْ&َ  اَِْ ٌََ̀ءُهْ َأْ َوِإَذا ً4َِ  Kَ4ْcَن ِإ  Eَ:ْ,2ُُ اَ Fُ2ُAَ?ْ4ََُْ>ْ َوَر Fِ  PُWْBَ اَDْ 3ُ9ْْ َوَِ Fُ َDKُ:ِ9ْ2َْ-َ َ-ِ َ,FُAَِ ا َ ْآِ ِإْن ُآ2ُ9ْْ َ  DAَُ,ْEََن Dا َأْهPَ اُ&َْBَ ْ3ِ4ْ  ُ M?ِD ِإًََ̀ َوَ َأْر9ََْ َْ:ََ ِإ  ِر “As for those who strive hard in us (i.e. our ca)u, swee will surely guide them to our paths (i.e. Allah’s Religion –l amIsic Monotheism). And verily, Allah is with the Muhsnin (ugood doers) (Q29: 69). O you who believe! Obey Allah and obtheey Messenger (Muhammad PBUH) and those of you who ina re authority. (And) if you differ in anything amon gysoturselves, refer it to Allah and His Messenger (PBUH), if you beeli einv Allah and in the Last Day. That is better and more suitaboler final determination (Q4: 59). When there comes to theme s omatter touching (public) safety or fear, they make it kno (wamong the people), if only they had referred it to the Mesgseern or to those charged with authority among them, the proper intivgeastors would have understood it from them (directly). H ita ndot been for the Grace and Mercy of Allah upon you, you wouldve h faollowed Satan, save a few of you”. Q 4: 83. And we sent tb nefoore you (O Muhammad PBUH) but men to whom we inspired, so thaes k people of the Reminder if you do not know (Q 21. :7)” It is throughi jtihād that one would be able to know what steps to tahken w one confronts new problems whose solutions cannot be found dlyir efrcotm the Qurā’ n and the Sunnah. An order is given in the verses quoted to seek thnei onp iof those who can use ijātidh to deduce 22 laws from the primary sources of the Sīh‘aahr. The understanding in the verses quoted abso ve i that ijtihād is an exercise undertaken to deduce a conclussi otno athe effectiveness of a legal precept in Islam. Ijtihād is evident in the Hadith of the Prophet when hes wseanding Muadh b. Jabal to Yemen. : Muadh Ibn Jabal on the eve of his departure to Yne mwheere he was being sent by the Holy Prophet as their Judngde Gaovernor was asked by the Holy Prophet on the basis of whhea (tM uadh) would judge upon being confronted with a problemu.a Mdh replied that he would judge on the basis of the conten ths eo fQur’ān. The Prophet asked him again: Assuming that you did f inodt it in the Qur’ān, on what basis would you adjudicate? Muadh shaeid would judge on the basis of the Sunnah of the Perto. pThhe Prophet further asked him “Assuming you do not fiitn idn both the Qur’ān and the Sunnah of the Prophet, on what basis dw yoouul adjudicate? Muadh replied that he would use his oinwdnividual judgement. And Prophet Muhammad (PBUH) was veryp yh atop hear this statement.” The Prophet is also reported to have saWid:h e“n a judge exerciseijsti hād and gives a right judgement, he will have two rewards, but if he einrr shis judgement, he will still have earned one reward (Bukhari and Muslim). “Strive and endoeuarv (Ijtahidū), for everyone is ordained to accomplish that which he is created for” (Bukha Trih).e understanding of this Hadith is that whatever the resultij,t ihād never partakes in sin. The quotations also shhoawt i jtihād is not blameworthy. Rather, it attracts rewards. Mujtahid Mujtahid is the person who endeavours to understand deeapn inmges of the Quār’n and Hadith with the sole purpose of finding out the exact riuncsttion from Allah and gives decision on that basis. To put it simply and differentlyM, ujtahid is he who possesses the capacityij toihf ād. Mujtahid is he who infers details of Islamic practices fr othme primary sources. Before a person can be qualified to be called ma ujtahid, he must have some qualifications. The following qualities are expected ofm au jtahid though the list is not exhaustive. Some of thee- rperquisites of ijtihād are mentioned below. Qualifications of al – Mujtahid • He must be competent in Arabic language for thvise sg ihim a correct understanding of the Qur’ān and the Sunnah. These two sources are in A ra Ibf ica. mujtahid is not competent in Arabic, he would rely more on the strlatnions of others which may not be correct. Therefore, he will not be able to drawu araccte deductions from the two sources. • He must be righteous, honest, upright, pious anlida brle so that people can trust his judgement. • Adequate knowledge of the Qāunr’ is required of am ujtahid. He should know the events surroundings its revelationA s(bābu al – nuzūl), its legal contents and the classical 23 commentaries on th‘ea yātul ’Aḥkām which they are about 500 verses. While noting these commentaries, priority should be given to sthuennah and the views of the companions as they relate to the legal issues nadt. h aHe must be versed in the rules of abrogation n(āsikh wal manūskh) as they relate to the legal issues. In addittihoen ,u se of narratives and parables must be understoodm buy jtaa hid to deduce legal rules from such narratives and parables. • He must be knowledgeable in the Sunnah as relaot ethde t legal issues. As regards the Sunnah, he must be able to establish the reliya boifli tthe narrators of the Hadith with a view to distinguishing between the general ands tpheec ific as related to the legal issues. • Al – Mujtahid must be a practising Muslim, male or female ands tm bue emotionally stable. He must possess high level of intellecctuoaml petence that the job requires. • He must be aware of thIejti hād carried out by previous scholars and how they hreda c their decision as related to the issue. • The Mujtahid is expected to understand the issue on wIhjtiichhā d is being done. This is because if he does not understand the issue,l ihke lyis to give a wrong legal ruling on it. The Mujtahid is expected to consult experts in the field wit hv ieaw to getting full information on the issue. This will assist him taos sp a correct legal ruling on it. • He must know the objectives of Sīh‘ahr (Maqāḥidu al – Shaīr‘ah) as related to the issue at his hand particularly when the issue relatesth teo removal of hardship. To put it simply, he must be quite knowledgeable about thtiem autle goals ofS harī‘ah rulings, their objectives as well as the common interespte ofp le in his time. • He must have a razor- sharp mind and analyticadl mthinat the jobs demand. Classification of Mujtahid Mujtahidun have been classified into the followicnagt egories by some scholars according to their understanding. 1. Mujtahid al-Mulaq (Absolute Mujtahid). These are the mujtahids that made their own rufl eijsti hoād and did comprehensivIejt ihād to extract the ’Akām (rules). Founders of various schools of Islafmiqihc such as i. Imām Abu Hanīfah Nu‘mān bin Thābit (Abu Hanifah) ii. Imām Malik bin Anas. iii. Imām Muhammad Idris al-Sāhfi ‘ i iv. Imām Ahmad bin Muhammad bin Hanbal etc are in thoisu pgr. 2. Mujtahid fi al – Madhhab. They are the mujtahid who derived their rulingsm fr othe usūl – al – fiqh set by theM ujtahid muḥ laq to extract thea ḥkām (rules) i.e. they followed the guidelines of th reeisr pective schools to extract rulings. For instance, āIm Abu Yūsuf used Imām Abu anīfah’s methodology to extract rules. However, they might have differenat yws in the implementation of particular issues. 24 3. Mujtahid fil masā’il They deal with new issues of law not legislated Tonh.e scholars in this category include Kashshāf, Tahawi, Halwani etc. They derive rulings on iess uin which there is no known opinion or ruling by any Imam such as Imam Abu Hf ahn.i They followed Imam Abu Hanifah in his derivative rulings, using hiuss ūl on issues in which there is no known opinion olirn rgu by Imām Abu Hanifah. The present day Mujtahids are isn gthroup. 4. Al – Mujtahid fi Sharī‘ah. These were those who diijdtih ād in the matter of Shaī‘ar h. The companions of the Prophet were in this category.I jtihād that aims to deduce the law from the evidenceh ein stources, i.e. the Qur’ān and the Hadith, often is called independiejtinht ād while the one that mainly elaborates and implements the law within the confines of at ipcualrar school, say Maliki school of law is known as limitedij tihād. Features of Ijtih ād  Ijtihād is the most important source of Islamic law atfhteer Qur’ān and the Sunna h.  It is a continuous process of development since D tihveine Revelation and the Sunnah stopped or ceased after the death of the Pro phet.  Ijtihād is the main tool or instrument used to interphret dt ivine messag e.  It is also used to relate the divine message to c hthaenging conditions of the Muslim community .  All other sources of Islamic law such Iajms ā‘ , qiyās istishāb, istiḥsān and ‘urf beside the Qur’ān and the Sunnah are under the umbrellIajt iohfā d. They are its manifestation s.  Ijtihād is regarded asfa rḥu al-Kifāyah i.e. the actions that are compulsory for every Muslim but their observance can be taken over bmye s other Muslims. If this is done, others are relieved of the acts. It means theo na ci.tei . Ijtihād can be delegated to others (Q9: 122; Q9: 122). “And it is not (proper) ftohre believers to go out to fight (Jihad) all together. Of every troop of them, a party only sldh oguo forth, that they (who are left behind) may get instructions in (Islamic) religi oann,d they may warn their people when they return to them, so that they may beware (oil)f” e. v  When there is a fear that justice may not be donn ea no issue, thenijt ihād becomes compulsory for every Muslimf a(rḥ ‘ayn) with a view to finding correct solution to the problem .  Ijtihād is praiseworthy and attracts reward whetahle-Mr ujtahid is correct or no t.  Whenever a clear rule is available in the Qānu ra’ nd the sunnahijt,i hād is not applicable .  It is a duty of the scholars. If an issue is urg, eitn tis compulsory on each competent scholar. If it is not urgent, it is a collectivel iogbation.  Mujtahid legistlates law whilefa qīh does not. The latter uses existing framework stou eis verdicts like a judge . 25  A Mujtahid becomes aM arja Taqlīd when his views are endorsed and followed by prominent religious persons in religious matt ers.  Fatwa is a decision or a conclusionM au jtahid reached on an issue or a predicament after much endeavour and struggle. The authenticity hoef fat twa passed can only be confirmed if it is based on the Quānr’, the Sunnah and Ijām‘.  Ijtihād provides solutions to contingent issues of lifed afunlfils the needs of changing items and the requirements of new phenomena of nh ucmivailization  While the Qurā’ n and the Sunnah came to an end at the time ohf doef atthe Prophet, Ijtihād, however, continues. This is because Islamic sla wab ile to adapt to new situations and has capacity to tackle all new issues and epmrosb lthrough ijtihād.  Propriety ofI jtihād is measured by its harmony with the Qāunr a’ nd the Sunnah . Summary In this lecture, we gave various definitionsI jotifh ād with a view to showing the importance of Ijtihād and its relevance to our contemporary world. hIen ct ourse of the lecture, we have examined the qualifications and classificationm ouf jtahid. The features oifj tihād were also discussed . Post-Test 1. What are the evidences from the Qāunr a’ nd Hadith to show the lawfulnessI jotifh ād? 2. Give and explain briefly 5 of the various definnitsio of Ijtihād. 3. Highlight and explain the various qualificationsd a cnlassification ofm ujtahid. 4. What are the features Iojtfi hād? References Ibn Manzur, (1968)L. isan al-Arab volume 1.4 Beirut: Dar Sadir Li Taba’ah wan-Nashr Cowan, J.M. (1960)T. he Hans Wehr of dictionary of modern written Acra .bIni dia: Modern Language Services. Mohammad, H. K. (2003P) rinciples of Islamic Jurispruden.c eCambridge: Islamic Texts Society. N. J. Coulson, A (1964) History of Islamic Law. Enbdui rgh: Edinburgh University Press Schacht, J. (1982A) n Introduction to Islamic La.w Oxford: Oxford University Press MacDonald, D. B. and Schacht J. (2004) "Iājdtih." in P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs. edsc.y Eclnopaedia of Islam, Second Edition. CD- ROM Edition Leiden: Brill Al-Khidr Bek, M.(1969)M uhadrat tarikh al-man al-islamiyya.vhol.1.Cairo:Maktabah Tijariyyah Al-Nasr,(1969) .Ijtihād al-Rasūl. Kuwait: Dar al-Bayan Al-Ghazali, A. H. (1390 )Shifa’ Al-Ghalil. Baghdad: Al-Irshad 26 Al-Ghazali, A. H. (1322 )Al-Mustasf min ‘lmil uḥūl.Cairo: Halabi Press . Hallaq, W. (1984) "Was the Gate of Ijātidh Closed?", International Journal of Middle East Studies, 16, 1, 3-41 Mutahhari, M.M . The Role of Ijtihād in LegislationT ranslated from the Persian by Mahliqa Qara'i. Al-Tawhid Vol. IV No. 2 Abdur Rahim, M. A. (1994T) he Principles of Islamic Jurispruden cNee. w Delhi: Kitab Bhavan 27 LECTURE FIVE The Closing of the gate of Ijtihād (Insidād bābu al – Ijtihād) and Taqlīd Introduction This lecture is designed to make you understan dc othnecept ofi nsidād babul Ijtihād (the closure of the gate of Ijtihād. It was assumed by some scholars to have ceahsieled swome believed the gate is still open. The arguments of the two s iwdiells be analysed with a view to making our stand. I will also introduce you to the concep ta oqflīd (complying with edicts of a jurist) and its applications. Objectives At the end of this lecture, you should be able to: 1. state the assumptions of some scholars who bel itehvaetd the gate oIfj tihād has been closed. 2. know the views of the proponents Iojtifh ād. 3. understandta qlīd and its applications to one’s worldly and spirli tluivaes. 4. know the framework of Muslim law in relation to Ma u slim’s actions. Pre-Test 1. Explain the concept oinf sidād bābul Ijtihād. 2. State the opposing-views on aInjtih- ād groups. 3. Explain taqlīd and how it can be applied to our worldly and stupairli lives CONTENT About third/ninth century, the gate iojtfi hād was assumed to have ceased. It was believed that the gate had been closed and it would never bee odp. e nThe assumptions were based on the following grounds : • All the essential questions had been answered; thaantd no one had the necessary qualifications because independent Muslim jurispernucde had been exhausted. • All the explanations, applications and interpreotnasti on ground would cover all the future activities. • The closure of the door was due to fear by sch othlaarts the unscrupulous rulers might misuse ijtihād to support their ill motives and personal intesr east the expense of the Ummah. 28 • The ijtihād of the earliest scholars, particularly, the fomura Ims (Malik Hanbal, Hanafi and Shafi) should be recognised, and it was bedli ethvaet the caliber of the Imams would be impossible or at least difficult to find. • No changes should be made to thiejtirh ād and no opinions contrary to theirs were accepted. • Therefore, their decisions should be followed anrde atcivity should be limited to explaining their views. The anti-ijtihād groups who were from the lines of the people odf iHtha rejected vehemently the principle of qiyās – analogical deduction – the backboneij tiohf ād. Their concern was only the sources of Hadith and the literal interpretna toiof Hadith text. Human reason and free investigation were not given any place in the psrosc oef legal reasoning. These beliefs were captured vividly in the Joseph Schact’s report. By the beginning of the fourth century of the h i(jraabout A.D. 900), however, the point had been reached whensc thoel ars of all schools felt that all essential questions had betheonr oughly discussed and finally settled, and a consensus ugarlalyd established itself to the effect that from thate t iomnwards no one might be deemed to have the necessary qualificsa tiofonr independent reasoning in law, and that all futurcet ivaity would have to be confined to the explanation, applica, tiaond, at the most, interpretation of the doctrine as it had b elaeind down once and for all. The closing of the door of ijātidh, as it was called, amounted to the demand for taqlid, a term which hoaridginally denoted the kind of reference to companions ofP trhoep het that had been customary in the ancient schools of lanwd, wahich now came to mean the unquestioning acceptance of thcetr indeos of established schools and authorities. A person lendt itto ijtihād is called dmujtahid, and a person bound to practiceq lidta is Muqallid. The Opposing- view on antii-jtih ād groups The proponents of ijtiāhd believed that no one at any time has demandetd t hthea practice of ijtihād be suspended. To themin,s idād bābu al- ijtihād does not convey an idea as to who had actually closed the gate. Contrary to the belieaft tthe gate had been closed, there is no where the phrase is mentioned. It was not closed inr tyh aenod practices. A waive of writing in favour of ijtihād was generated and the following arguments wer efo prwutard in its favour and against anti-ijtihād. Ijtihād is always relevant and indispensable in legal rtyh eboecause the jurists are able to reach the judicial judgements through it. Jurisatps acble ofi jtihād exist at nearly all times. As regards those who are anijtih- ād, no judgeship should be entrusted to them bectahuesye w ould apply the methods of jurisprudence insufficienIttly w. as believed that the anijttii-hād group has been extinct as a result of disapproval of theicr trdinoes and adherents by the great mass of Muslims (the Sunnis and the Shiites). It is omnluy jtahid that could express highly original view on law. There are questions relating to other is swuehich the Qurā’n cannot give express answers. Muslim scholars should provide solutiton tsh eir answers. 29 Therefore, for one to say that the doori jtoihf ād was closed, it means many issues would remain unsettled for life because it is througihh āijdt that we can provide answer to them. The gate can never be closed. It was even the Prowphhoe to pened the gate by himself as can be seen from the Hadith quoted above in relation to Muadbh Jua bal. The scholars need to work hard and exertr tmheintality to understand the texts of the original sources of Islam from the linguistic anedli grious points of view. This can be achieved throughi jtihād. New cases are endless; and the only way fori sat jtuor encompass all branches of law, including the cases which may or may not hbaeven previously solved is to master the science ofu sūl. It is throughq iyās and ijtihād that Shaīr‘ah can cope with the needs of Muslim society. Ijtihād was indispensable to the political institution winhich the ulama played a prominent role. Jawyn, Ghazali and Ibn Aqil opposetadq līd in favour of ijtihād. They were qualified mujtahids and were accepted by others as mujtaohf idthse highest caliber. To rule efficiently, a caliph or a leader must possess knowledge of ladw oaf nthe means i.eij.t ihād by which new problems can be solved. New matters which crop ru pd ido not exist during the time of the Prophet, his companions and the ancient Muslimsd neew religious injunctions. For instance, new firms, the income of professionals like doc,t oernsgineers, lecturers, lawyers, buildings for rent, plants, machine and equipment, animal prosd (uscutch as milk, silk), rental proceeds from fixed and current assets such as ships, cars, sp, lahnoetels etc. are examples of new matters that need new religious injunctions which are not exsplrye stated in the original sources of Muslim law to determine their Zakatability or otherwiseIf. t hey are zakatable, we need to know the percentage of Zakaah on them. When should the Z baek aphaid on them? What is the evidence of such permissibility in Shaī‘ar h? It is through ijtihād that answers to these questions or novel cases can be found. If Ijtihād is prohibited, Islamicf iqh would have suffered from inertia, stagnation and passivity vis-à-vis the demands of the times, foef alind its manifestation. Islamic fiqh is dynamic and progressive as a resultI jotifh ād which has been the force with which the bounda orfie fsiqh with respect to its applications has been consyt adnetvl eloping and expanding. If the gate ofI jtihād had been closedf,i qh would have been rendered ineffective and incapable of providing answers to emergent andi ncgoennt t issues of life. Closing the gate would lead to the improper attitude towards new ideaes , isthsuing of baseless and irrationf atla wā. Another bad consequency is that people would hhaev efe teling that Islamicfi qh cannot fulfil the demands of the modern civilization. People wouledn t hprefer western laws (man-made laws) to the laws of Islam. It must be mentioned that thīe‘a Shh fiqh has been keeping the gatesIj toihf ād open throughout the course of history. This havse ng iit outstanding achievements over other schools. The corollary that can be drawn from thisth iast ijtihād plays the role of an evolutionary and dynamic force in legal issues (studies). It prosvi dseolutions to contingent issues of life and fulfils the needs of changing times and the reqmueirnets of new phenomena of human civilization. Ijtihād assists man to perform his role in accordance dwivitihne law. Man is able to do his ibādah (duties to Allah) and to take the right steps wehveenr he is confronted with new cases. To assist man to undertake it is, there ftohree ,duty of every Muslim community to perform ijtihād with a view to assisting other Muslims on the s tetop be taken whenever a new case arises. In this situatioijnti,h ād is regarded afsa rḥ ‘ayn i.e. it becomes a personal obligation 30 of the mujtahid. This is particularly so when there is a feart tjhuastice may be tampered with or may not be done. But when it is being performed by a juris t juorists, it is no more an obligation on every Muslim. It becomesfa rḥ kifāyah (the collective bargaining). There is an urgeenet dn fori jtihād in this current age to solve political, economi cmael,dial, social and educational problems. There is also the need for collectiviejti hād i.e. jurists would come together and exert theeirn mtal energy with a view to finding solutions to compliesxs ues such as Islamic banking and finance, bio-medical issues, political issueibsā, dah-based problems. We can therefore, conclude that for Islamb eto r elevant through all ages and for the progress of Islamic civilization in future, there is the nde feor Ijtihād by competent scholars. Taqlīd Literally, taqlīd means to put a chain around the neck. In īS‘aha, rit means complying with edicts of a jurist as regards the fundamentalse loigf ior n. He who follows a jurist or accepts a jurist’s view is calledm uqallid. If a Muslim is unable to understand and derivlaem Isic laws by himself from the Qurā’n and Hadith due to lack of knowledge, lack of t iemtce, taqlīd becomes necessary because it affords the Muslim a morele v ioapbtion. Taqlīd is not blameworthy in the sense that many our sdioencsi in life are based in taqlid. This is noticed in our consultations with thoset tahrae more knowledgeable than us in some disciplines. For instance, we consult doctors caonmd ply with their pieces of advice and follow their prescriptions. In the same vein, we consauwlty lers and accepts their recommendations and strategies. Therefore, if we could comply with tdhoectors’ prescriptions, the recommendations of the lawyers and civil engineers, there is nogth binad or unlawful if we resort to experts in fields wherein we lack expertise such as religimouastt ers. Al–Mujtahid directs people in religious fundamentals by isgs udinecrees calledA ḥkām. A Muslim is, therefore, faced with two options i.eo. btecome am ujtahid (jurisprudent) or a muqallid (a follower). Fatwā is a decision or a conclusionm au jtahid reached on an issue or a predicament after much endeavour. The authentoicf ithy e fatwa passed can only be confirmed if it is based on the Quārn’ , the Sunnah and ijma. Taqlīd ghayru al – shar‘iy ymeans to follow anyone in worldly affairs. If thpere scription of a doctor is not against the Quānr’ and the Sunnah, we follow it. But if a doctor uslhdo prescribe unlawful thing as a cure to an ailment such ash aollcico drinks for the cure of a person’s disease, such a prescription must not be followed unlessre t hise no alternative in the world. But if the prescription is not haram, it is permissible to iut.s e The Framework of Muslim Law In Islam i.e. Shaī‘rah, all human actions have a definite order. E vMeruyslim should be aware of what is expected of him, what he should not do wanhda t he can be indifferent. In the light of Hadith, the framework of Muslim law in relation ato M uslim’s actions is divided into five.  Wājib or Far(obligatory): This is a commandment that must be performed. - Non performance of the commandment is considered aA s pine.rson who fails to observe any obligatory duty is punished on the Day of Judgem. ent  aram: It is an action that must not be committed beec aiut sis forbidden. It is punishable by law e.g. stealing, bribe taking, gly eintc. 31  Mustaab/Mandūb: It is an action that is rewarded if one performt. s H i owever, if one fails to do it, one will not be punished e.g. oifnfegr salat in congregation, brushing teeth with miswake tc.  Makrūh (Disliked): This is an action which is disliked by the Sīh‘aahr. One should not perform it. However, if one performs it, one is npoutnished for doing it. For instance urinating while standing and other actions tha th aarremful to others.  Mubah (allowed) /Jaiz : This is an action that is permitted by the Sī‘haahr but it is legally indifferent. To put it simply, an action atth had equal significance whether one performs it or not e.g. eating lawful food, goinogr fsight seeing, enjoying a stroll in the park. One will neither be rewarded for doing itr npounished for abstaining from it. Farḥ ‘ayn: These are actions that are compulsory on everyl imM.u Tshey cannot delegate them to others e.g. salat etFca. rḥ Kifāyah: These are actions that are compulsory for every Muslim but their observance can be taken over bmye s other Muslims. If this is done, others are relieved of the acts. It means these actioans b ce delegated to others e.g. participation in salatu al- Janāzah (prayer for a dead Muslim) ifsa rḥ ‘ayn (compulsory) but it becomefsa rḥ Kifāyah if some Muslims perform the salat. It means thbelig oation of performings alatu al- janāzah has been removed from the shoulders of other Mmuss. l iAnother one is the science of religion (Shaīr‘ah). Allh says: “And it is not proper for the bevliers to go out to fight (Jihad) all together. Of every troop of them, a party only sldh oguo forth, that they (who are left behind)may get instructions in (Islamic) religion, and thate yth may warn their people when they return to them, so that they may beware ( of evil)” (Q92: )1. 2 Summary In this lecture, the concept oifn sidād bābul Ijtihād was examined thoroughly. The assumptions of the anItjit-ihād and the views of the proponents Iojtfih ād were carefully analysed. T aqlīd is assumed to be blameworthy by some scholarse wshoiml e believed that it is not blameworthy in the sense that many of oucri sdioens are based itna qlīd. All human actions are evaluated based on five divisions. eTvhaelu ation of all human actions was done in the light of the framework of Muslim Law . Post-Test 1. What are the assumptions of those who believehde i nc ltosure of the gate Iojtfi hād? 2. State and explain the views of the proponentIsjt iohfā d. 3. Taqlīd is very important in our worldly and spiritual elisv. Discuss. 4. The evaluation of a Muslim’s actions is dividedo i nfitve. Discuss. 5. Explain farḥul‘ayn andf arḥul kifāyah in relation to Muslim Law. References Ignaz, G (1981) Introduction to Islamic Theology and La, wPrinceton: Princeton University Press. Coulson, N. J. (1964A) History of Islamic Law. Edinburgh: Edinburgh University Press 32 Hallaq, W. (1984) "Was the Gate of Ijātidh Closed?",I nternational Journal of Middle East Studie,s 16, 1, 3-41 Mutahhari, M. M .(nd) .The Role of Ijtāihd in LegislationT ranslated from the Persian by Mahliqa Qara'.i Al-Tawhid Vol. IV No. 2 Murad, A. H. (1999) Understanding the Four Madh aCbasm. bridge: Muslim Academic Trust. 15 Schacht, J. (1982) An Introduction to Islamic LaOwx.f ord: Oxford University Press Hashim, K. M. (1991) Principles of Islamic Jurisdperunce. Cambridge Islamic Text Society 33 LECTURE SIX Marriage in Islam Introduction Marriage (Nikah) in Islam has certain rules andu rlaetgions. All the rules and regulation must be followed before contracting it. You will be introcdeud to them in this lecture. What marriage is expected to do will be examined in this lecture . faInct, this lecture will prepare a good background for the next lecture. Objectives At the end of this lecture, you should be able to: 1. explain nikah in relation to social contract. 2. discuss the functions/purposes of marriage in I.s l am 3. explain the Islamic perspective of marriage 4. state the views of Maliki jurists concerning magrreia 5. state the categories of women that are forbiddoer nm fen and vice versa to marry in Islam. 6. list and explain the Islamic requirements for thaelid vity of marriage 7. explain the rights of husband and wife. 8. discuss polygamy in Islam Pre –Test 1. What are the functions or purposes ofā nik (marriage in Islam)? 2. Discuss the views of Maliki jurists as regards miaagrer. 3. List the prohibited categories of partners in maagreri in Islam. 4. List the Islamic requirements for the validity ofa rmriage. 5. Discuss the polygamy in Islam and the rights ofb haunsd and wife. CONTENT Nikā or Zawāj means marriage. It is an institution that hasta cine rrules and regulations. These rules guide both males and females who want to geen geaach other in marriage. A woman becomes lawful for a man and vice versa by conintrga cmt arriage. They are permitted sexual relations only if they fulfill the conditions atthaecd to al-Nikā in Islam. Marriage is a noble communion between man and woman, a communion wihs icbhle ssed by Allah and based on freedom of choice. To put it differently, both afree to choose their partners of their choice and 34 liking. Marriage is recognised in Islam as the sb aosf isociety. It is not only a social contract but also a sacred covenant which must not be taken lewvitithy. This institution leads to the uplift of man and is a means for the continuance of the h urmacaen. Therefore, spouses should respect, love and honour each other. The Legality of Marriage The divine wisdom behind the creation of a man a nwdo man who enter into social contract is referred to in the Quārn’ : “And among His signs is this, that He createrd yfou wives from among yourselves, that you may find repose in t haenmd, He has put between you affection and mercy. Verily, in that are indeed signs for a peo wphl o reflect” (Q30: 21). The Prophet is reported to have said: ‘Therr imagae is my tradition whosoever keeps way therefrom is not from amongst me”. He also saiYda: a ma’shara ash shaābi man istaāt ‘a minkumul bā’ah falyatazawwaja fa’innahu agḥhā lilbaḥari wa aḥsanu lil faraj (O!You youngmen, whoever is able to marry should marrry ,t hfoat will help him to lower his gaze and guard his modesty) ( Doi, 1984, P. 115) “O you youngmen, whoever is able to marry, shomualdr ry, for that will help him to lower his gaze and guard his modesty” The purpose of marriage If we go through the messages of the Holy Qānu ra’ nd the Sunnah, they will show the sound nature of husband and wife relationship. The mees ssahgows that marriage is strongly recommended in Islam. This recommendation is sne evna riious parts of the Quārn’ and Hadith. Marriage unites a man and a woman in Islamhe. Tword garment used in the verse is a metaphor. This refers to husband and wife. The iicmatpiol n is that marriage relationship should protect their chastity, give them comfort and b rtinhgem peace, grace and stability as garment protects one’s nakedness, enhances one’s beau tgye annedral appearance. It also shows the close intimacy, mutual comfort and mutual affection thsahto uld exist between the two. Celibacy is against the teachings of the Qāunr.’ Therefore, monkhood has no place in Islam. A lMimu s should not shun his worldly responsibilities andu ts himself four walls of a monastery. If a Muslim fulfils his responsibilities to his wife, icldhren, parents and fellow-men, they are regarded as Iābdah (worship). The Prophet of Islam advised hilso wfoel rs to keep fast and break it, offer prayer and have some rest. This is beec aau ms an’s body has a right over him, his eyes have a right over him and his wife has a right o hviemr. Therefore, a mature Muslim is expected to get married in order to raise a descent family. One of the advantages of marriage is incr eoaf smeankind. If one marries and one is blessed with children, dynasty is preserved. Followersh oef Pt rophet also increase as he will boast on the Day of Judgement for the increased number of hllios wfoers. After one’s death, one’s religion, sons or daughters may pray for one. Dead parents get the rewards of their gootido nasc and the prayers of his children. However, they are not punished for the sins committed byir tchheildren. Allah says: “I will attach them to their issues and they will suffer no loss owingt htoe ir evil actions but their good deeds will increase owing to the good deeds of their child Irfe tnh.e child should die before them, they will draw their parents to paradise” (Al-Ghazali, 20 01). 35 Marriage brings peace and tranquility if iatsll rules are adhered to strictly. A chaste and religious wife helps her husband in cooking of f,o sopdreading of bed, cleansing of utensils and other duties of livelihood. All these acts lessheen dt uties of a man and he has more time for divine service. The Functions of Marriage Companionship and counselling of each other One of the functions of marriage in Islam is comiopnasnhip and counseling of each other. When a man and a woman come together in marriage, thiveey egach other companionship, each showing affection, care, understanding, toleranocwea rtds the other. It is through marriage that a man becomes lawful for a woman and vice versas. Iat lsi o through marriage that they are permitted to have sexual relations. Extra-marietalal trions are prohibited in the Holy Qāunr’. Any companionship that devoid of marriage must not livnev osexual relations. If it does, it is adultery or fornication. Such is frowned at in the Holy Qāunr.’ Allah says: “Do not come near adultery (Q17:31). This leads to the second purpose of magaerr. iIntense mutual love and mutual concern for each other (Q30:21) can be shown through mgaer.r i a Sexual Satisfaction, Reduction of Tension and Rewdasr When a man and a woman come together in marriahgeey, atre able to express their love and attraction towards each other without committinge tshin of adultery. To put it differently, marriage protects people from committing adulterr yf oornication. Their private parts are thus saved. Sexual passion is so strong in some me no nthea wt ife cannot satisfy them and so there is provision of marrying four wives. Some of the comnipoans had three or four wives and those who took two wives were many. This protected theromm f exercising their sexual urge in a wrong way. Allah says: “It is made lawful for yoou ht ave sexual relations with your wives on the night of fasts. They arleib ās (i.e. body cover, garments, screen etc) for you yaonud are garments for them” (Q2:187). Through marriage, maannd woman are able to exercise sexual urge to get rewards based on the Hadith of theh Perto. p “O Messenger of Allah, the rich have taken away t haell rewards. They observe the prayer as we do, and they kee fpa sthtse as we do and they giveḥ adaqah (charity) from their surplus riches”. Upon this he (the Prophet) said: Has Allah not prescdri bfeor you (a course) by following which you can also ḥdoa daqah? Verily in every tasḥīh (i.e. saying suḥbanallah) there is aḥ adaqah, every takbīr (i.e. saying Allahu Akbar) is ḥa adaqah, every tḥamīd (i.e. saying Aḥl amdulillahi) is a ḥadaqah, every tahīl l (i.e. saying Lā ilāha illā llah) is a ḥadaqah, enjoining of good is ḥa adaqah, forbidding of evil is aḥ adaqah, and having sexual intercourse with your wife is aḥ adaqah. They (the Companions) said: “O Messenger of Allah, is there reward for him whoi ssfiaets his sexual passion among us?” He said: “Tell me, ifw heer e to devote it to something forbidden, would it not be a sin hoins part? Similarly, if he were to devote it to something flualw, he should have reward (Muslim)” 36 Therefore, marriage provides an outlet fore recixsing one’s sexual feelings without committing sins. Sexually transmitted diseases, e,r ahpomosexuality, pornography, gay, lesbianism etc are likely to be eliminated or aat slte reduced in a society that encourages marriage of a man and a woman. This is also in wliniteh the Hadith of the Prophet which encourages young men to get married with a viewlo wtoe ring their gaze and guarding their chastity. The Continuance of the Human Race Marriage is a lawful way of having children beca uits cereates an environment that is conducive for the wife during pregnancy and lactation. Cheilnd rcan get the best start in life through marriage. Parents have some duties to perform dtosw tahre children. They are responsible for the education and maintenance of their children. Thseu ltraent effect of having children through marriage is to prevent ant-social behavioural prnastt esuch as armed robbery, corruption and hooliganism. It is through Nikah that parents kntohwe ir rights and obligations towards their wards. If children are given a good foundation, stohceiety will be good for it. Another reason for marriage to procreate for the continuance of thme ahnu race is stated in the Qāunr.’ Allah says: “And Allah has given you wives of your own kind, da nhas given you, from your wives, sons and grandsons, and has bestowed on you good pornosv…isi” (Q16:72) An Act of Ibādah Marriage also assists a Muslim to perform anothoermr fof Ibadah. It is Ibadah to get married because one has to endure the inconveniencies moifn gc otogether of two people who have different backgrounds. Therefore, tolerance is viemrpyortant in marriage. The couple has to tolerate each other. Otherwise, the marriage maeay kb rafter a short period of consummation . With tolerance, understanding and viewing marriasg eIb adah, the marriage can be sustained for life. The Prophet is reported to have said thath: e“nw a man marries, he has satisfied half of his faith, so let him fear Allah regarding the remagin ihnalf”. Marriage gives a person other ways of doIibnāgd ah. Some of them are patience at the character and conduct of the wife, bearing the shhaiprd of the family members, doing good to the family members, showing them the path of religieodnu, cating the children and earning for them lawful things. All these acts are consideredI baāsd ah. However, one should not allow marriage to divert one from the remembrance of God and ftrhoem p ath of honesty and virtue. The Islamic perspective of Marriage As good as marriage in the life of human being sm, aity not be generally compulsory for every person if the Qurā’nic verses (Q3:4 Q24:32) and the Prophetic trandsit iocited earlier on marriage are considered. For instance, the Proipsh reetp orted to have said “Oh assembly of young people: whoever of you has the means to srut pap woife, he should get married for this is the best means of keeping the looks cast down uaanrdd igng the chastity and he who has not the means let him keep fast, for this will act as caatsiotrn”. Maliki jurists take it that marriage in itsri goin is deemed to be recommended but for certain reasons affecting certain individuals, it takes eor thshapes. Abu Hanifah and Imam Hanbali jurists agree with Maliki jurists as to that. Bumt aIm Shafie jurists deem marriage in its origin to 37 be mubah i.e. supererogatory. Imam Dawood Al-Azhari deemasr rmiage to be obligatory (Abu Zahra-ahwal Shakhsia 24). Here are the views of Maliki jurists on this iss ue. • Marriage becomes obligatory for a man who has gst rsoenx desire and fears committing illicit relations and has the means for it i.e. haes the dower, strength and the maintenance. For the woman, marriage is also otbolriyg aif she is unable to earn her living or she fears illicit relations. • Marriage is forbidden for a man who can control sheimlf and has not the means for marriage or has bad illness which will affect thiefe w or his expected offspring. • Marriage is recommended (Sunnah) for the man whso d heasire for sex but can control himself, keep chastity and hopes to have offsp ring. • Marriage ism ubāḥ that is supererogatory for a man who can contrmols heilf and does not hope for offspring and marriage will not pretv heinm from performing his rituals. • Marriage is condemned for a man who has no sexre d aensid at the same time marriage will prevent him from performing his rituals. The Prohibited Categories of Partners in Marriage A Muslim may marry any other-Muslim according toe o’sn choice. However, Islam prohibits marriage between certain categories of personsc cino rdaance with the Quārn’ ic injunctions. Allah says: “And marry not women whom your fathers married, eepxtc what has already passed; indeed it was shameful and mhaotestful, and an evil way. Forbidden to you( for marriage) are: your mothersy,o ur daughters, your sisters, your father’s sisters,r y mouother’s sisters, your brother’s daughters, your sister’s daughteryso,u r foster mother who gave suck, your foster milk sucklingte rssis, your wives’ mothers, your step-daughters under your dgiuaanrship, born of your wives to whom you have gone in – hbeurte t is no sin on you if you have not gone in them (to marry t hdeaiurghters), the wives of your sons who spring from your own loainnsd, two sisters in wedlock at the same time, except for what hasss epda; verily, Allah is Oft-Forgiving, Most Merciful. Also (forbidden are) women already married excephto set (captives and slaves) whom your right hands pos. sTehsuss has Allah ordained for you. All others are lawful, pridoevd you seek (them in marriage) with mahr (bridal-money given tbhye husband to his wife at the time of marriage) from your perortpy, desiring chastity, not committing illegal sexual intercou,r seo with those of whom you have enjoyed sexual relations, give thheemir mt ahr as prescribed; but if after a mahr is prescribed, yaogur ee mutually (to give more), there is no sin on you. Surelya, hA lils Ever-All- Knowing, All-Wise.”(Q4: 22-24) 38 “And do not marry al-mushriākt (idolatresses etc.) till they believe (worship Allah alone). And indeed a slave woman wbehloieves is better than a (free) Mushrikah (idolatress etc),e ne vthough she pleases you. And give not (your daughters) in maagrer i to al- mushrikun till they believe (in Allah alone) andr ilvye, a believing slave is better than a (free) mushrik (idolaterc), eetven though he pleases you. Those (al-mushrikun) invite you to F tihre, but Allah invites (you) to Paradise and Forgiveness by Hiasv Lee, and makes His Ayāt (proofs, evidences, verses, lessons, signs,a rteiovne letc) clear to mankind that they may remember” (Q2:221). A Muslim should not marry the above-mentio nweodmen. In the same vein, the equivalent prohibitions are applicable to females towards ms.a Fleor instance, in the Quānr’ic verse quoted above, a man must not marry his daughter. In thmee svaein, a daughter must not marry her father. From the quotations, there are permanedn t teamn porary prohibitions. As regards the permanent prohibition, 13 females are prohibitedr mpaenently while 7 are prohibited temporarily. Those in the second group are • Marriage to sisters at the same time. But if onees ,d oi r is divorced, one can marry the other. • Marriage to a woman already married is forbiddef ns.h Ie divorces her husband or her husband dies, one can marry her. • An idolatress should not be married. However, eif ashccepts Islam, she can be married • A woman cannot marry a non-Muslim man. But if hec eapcts Islam, a Muslim woman can marry him. • Marriage to a fifth wife when four wives are subtisnigs is prohibited. If one dies or is divorced, one can replace the dead or the divowrcitehd another wife if there is the need for her. • A woman ini ddah (waiting period) should not be married • A woman inI hrām performing hajj should not be married. But wheen fsihnishes the rites of Hajj, she can be married. It could be inferred from the explanation athned verses quoted that the prohibition is due to the reasons of blood (consanguinity) relations,t efroasge, marriage affinity, morality and religious differences. Tahlīl is a temporary marriage whereby a woman divorhcerede t times by a previous husband is married temporarily with a view to divorcing h learter so that she may return to her husband. If a woman is divorced three times, her husband ca tnankoet her as his wife until she marries another man. It is when the woman is divorced nwgilllyi and without external forces that her first husband can marry her. Some people indulgTea ihnlī l to arrange a false marriage so as to avoid the injunction. This is prohibited and the Propchuerts ed the man who marries a woman for that purpose and the man for whom it is done. (Ahmad a at nTdirmidh) Other forbidden type of marriage misu t‘ah i.e. temporary marriage. This marriage is contracted for a specified limited period. It waesp orrted by Ali that the Prophet forbade mut‘ah (temporary marriage) and eating the flesh of thme edsotic donkey on the day of the conquest of khaybar (Saheeh Muslim). 39 Conditions for the validity of marriage The Islamic requirements for the validity of magrreia are as follows: Taradī (Mutual consent of the couple) is the first conodnit.i There must bseī ghah (forms) before contracting a valid Islamic marriage. The propo(s’ Īajāl b) and consentq (ubūl) ب ال و ا must be made on the free consent of the contra cptainrgties. Consent obtained by fraud or coercion invalidates the marriage. Both proposadl aacnceptance are made in the presence of two males or one male and two female witnesses. Iltlo iws ead for guardians to make such proposals on behalf of minors and persons of unsound minde.n Atsg can be made to perform these roles. However, they must be sane and adults. They musost aaclt within the scope of the authority given to them. In Islam, offer Ī(j’āb) and acceptance can be conveyed by words, wr igtiensgt,ure or indication, conduct (e.g. smiling, etc). No sipael cform is prescribed. Whatever form is used must be understandable by the part ies. Mahr (marriage gift) Mahr is a way of honouring a woman at the time of hear rmiage with a gift. This reflects the husband’s respect for her and it also shows hcise srein desire for partnership with her throughout life. Mahr can be specified or named at the time of the caocnt. trThere is no minimum or maximum mahr. It is left to circumstance, custom and capacift yth oe husband. This assertion can be inferred from the following Quānr’ic verse and the prophetic traditions. When Umrieadr t to limit mahr to 400 dirhams, a Quraysh woman reacted agains sst tahni d reading Q4:20 where Allah says: “But if you decide to take one wife pinla ce of another, even if you have given the wife you put away a talent of gold as her marriapgoert ion, take not the least bit of it back?” Immediately Umar withdrew his stand and admittesd ehriror. The following are some of the things used ams ahr during the time of the Prophet:  The Prophet gave some of his wives around 500 mdisrh aand others were given less when circumstances were difficult.  Abdur-Rahman b. Awf informed the Prophet that hse ghiaven a piece of gold that has the weight of a date stone amsa hr. The Prophet prayed for him.  The Prophet also prayed for a woman who acceppteadir ao f shoes ams ahr.  The conversion of Abu Talhah into Islam was use dM ashr for Umm Sulaym. When Abu Talhah proposed to Umm Sulaym, she said, “Blya hA, lsomeone like you would not be refused, but you arek āaf ir (an unbeliever) and I am a Muslim, and it is naowt flul for me to marry you. If you should accept Islam, thaout lwd be mym ahr, and I would not ask of you anything else”. So he became a Muslim anadt wthas herm ahr”. Abu Talhah proved to be sincere in his conversion and fougithht twhe Prophet in numerous battles.  Teaching the Quār’n to a wife-to-be can be used masa hr. It was narrated that a man wishing to marry was told by the Prophet to go itso fhamily if he could see what he could give asm ahr even if only an iron ring, when the man returned shaid: “No by Allah, I did not find anything, even an iron rinBg.u t here is my waist wrapper? The Prophet said: “If you wear it, there is nothing ito fo n her, and if she wears it there is nothing of it on you: so he sat for a long time athnedn got up to depart. The Prophet said: “What do you have memorised of the Qāunr?’ ” He replied, “Surah so-and-so,” enumerating the surahs. The Prophet said: “Go hfoarv Ie married you to her for what you 40 know of the Qurā’n”. And in another narration, “so teach her som et hoef Qurā’ n” (Bukhar and Muslim).  Ali married Fatimah, daughter of the Prophet wiitsh shword-shattering coat of mail The corollary of these different forms mofa hr is that mahr should be simple and affordable. The Prophet is reported to have said. “The besrt iamgaer is the easiest, and the best marriage gift is the easiest”. It is allowed to defer the paym oefn mt ahr if a man is in a financial difficulty. It then becomes a debt upon him which must be paihde rt oe ven after divorce or death of her husband. It must be mentioned that this essential cats poef contract of Islamic marriagem, aḥr (Dower) i.e. the gift given to the bride is mainmlye ant for the bride. It is not her parents’ gift. Giving the bride’s parents goods and property restqeude by them as ma aḥr i.e. dower before they could give their children in marriage as pirsaecdt in Nigeria is not one of the conditions of Islamic marriage. This practice is common in thes tweren part of the country. In fact, thQeu r’ān allows the bride to forego her right to dower ief swhishes and the marriage is still valid (Q4:4). ]ً-ِ Mْkٍَء ًِ1ْ َ Fُ9ْ XُDُ<ُBَ َه49ًِ[ ََْ ْ<ُ َ َ:ْHِ ْن!ِBَ aًَTْ ِ  3ِEَِIُVَ َءَ 9 َوDEُZَا ا Waliyy (Marriage Guardianship) The waliyy may be the lady’s fathers or any other man apepdo inbty the bride’s family. He is to give the lady or the woman in marriage. The Qānu r(’Q4:25) states: “Marry them with the permission of their people”. Guardianship is a citoionnd for the validity of a marriage contract as stated in many Hadiths. The Prophet said: “The rneo i smarriage except through a guardian”; “There is no marriage except with a guardian anod wtwitnesses”; “There is no marriage except through a guardian, and the rulers is the guarodfia onn e who has no guardian”; “Any women who married without the permission of her guard ihaenr, marriage is invalid, her marriage is invalid, her marriage is invalid”. It is believehda tt the guardian is in the best position to guide, advise and protect her interest. The guardian bwei lal ble to assess the man’s character and other things. He should not prevent her when she hasd f oau nsuitable suitor out of his own selfish interest . Witnesses The marriage must be witnessed by at least two rveelirayble male witnesses. Witnessing of the words of initiation by one party and acceptance thbey other during the same meeting is a condition for the validity of the marriage in Isla. mThe witnesses must be of age, sound in mind and must actually be present. They must hear adnedr sutnand the words of the contract. Walīmah (wedding meal) The walīmah (wedding meal) is not obligatory but strongly rmecmoended. When making walimah, extravagance, waste and showing off must be aevdo. Widalīmah is done to make the conclusion of a marriage contract known to the ipcu, binl contrast to unlawful relationships which are usually concealed. The husband’s meatnesr mdiene the extent owf alīmah. However, care must be taken to avoid extravagance. Invittoe ethse walīmah must attend unless they have genuine excuses not to go. The Prophet is repotort ehda ve said; “When one of you is invited to a 41 walīmah, he should attend it. Whoever does not respontdh et oi nvitation has disobeyed Allah and His messenger. If he should be fasting, let inhvimoke blessings, and if he is not, let him eat” (Bukhari and Muslim). Such genuine excuses inclsuidcken ess, exclusion of poor people, gossip, serving of unlawful food or drinks etc. The Prophet directed Abdul Rahman ibn Awf to shlatuerg a goat on the occasion of his marriage. The Prophet himself made a feast on oefa ct he occasions of his marriage. Once he slaughtered a goat and on another occasion he mthaed fee ast with two “muds” (handful) of barley to guide the Muslim to act according to rt hfieniancial ability. Rights of Husband and Wife A wife must recognise her husband’s position ofh oaruity and behave well to him. The wife must be obedient to her husband in all that is a fnadir does not involve disobedience to Allah and His messenger. She should not allow a person hsebra hnud dislikes to enter her husband’s house even if he or she should be among the wife’s rveelast.i The husband has the right to discipline the wife for her deliberate disobedience or reobne llai gainst the husband. However, the discipline must be within the framework of Shī‘arh as stated in the Quārn’. She is entitled tom ahr. It is her property, not her parent’s property.e Sish entitled to good and lawful food, clothing, housing, medication ino dmeration. She must be treated well. The husband must be kind to her and considerate fo fre heelirngs. The husband needs to be just and equitabolen ga mhis wives if they are more than one. Equality in provisions, in time spent with each,d afnair treatment is within the husband’s capacity. However, it does not include equalityf eine lings towards them. This is because it is impossible to have the same feelings for them dou teh et ir different behaviours as we cannot have the same feelings for all our children. But mwuest provide for all our children and wives equally in things that are within our power. The wife is entitled to education and guidea npcarticularly religious education so that she can fulfil her duties to Allah and this will prevent rh ferom unlawful behaviours. The husband should not be negligent in this regard otherwise he iso uancctable to Allah in this regard. She is entitled to protection of her person and reputation fromm h oafr any kind. Polygamy Polygamy means having more than two spouses coennctulyr.r A man who has more than two wives at the same time is practising polygamy w hpiolelyandry is for a woman who has more than two husbands at the same time. It means ao np ewrsho practises either polygamy or polyandry has more than two spouses at the samee. tIinm Islam, polygamy is limited to the maximum of four with certain condition while polydarny is completely forbidden. Monogamy refers to a person that has only one spouse whigilaem by means having two spouses. Islam allows monogamy, bigamy and polygamy (having mohraen ttwo wives at a time) on certain conditions. Polygamy practised by a man is allowine dth e sense that it corresponds with the biological nature of human beings. This is becaau smea n can father a great number of offspring. It is not possible for a woman to carry more thanne opregnancy at a time. Allah says. Although Islam allows polygamy for a man,is i tw ith certain conditions. In the pre-Islamic Arabia period, men married as many wives as theuyld c. oThe Holy Qurā’n then brought a legal limitation of four on the number of wives a perscoann have at the same time. 42 9َِء َC9َnْ َوmََُث َوُرََع Bَِ!ْن 2ُ1ِْْ  اَِ ْ<ُ DTُ<ِ ْBَ Cا َ Hََب ََ2َ4َ َوِإْن 2ُ1ِْْ َأ  ِ*ْEُDKُا MBِ اْ DاُD,ُEَ  ََ>ْ] َأْ-Aَُ ُ>ْ َذِ َ َأْدَ C َأ َ  Dا DَBَاِ?Iًَة َأْو َُIِ,ْEَ  َأ “And if you fear that you shall not be able to ld jeuastily with the orphan-girls, then marry many other women of your choice, two, three, or four bif uytou fear you shall not be able to deal justily (with them), then marry one or (the capsti vaend the slaves) that your right hands possess. That is nearer to prevent you from doing injust ic(Qe”4:3). Justice is emphasised in the above- mentioned verse. The justice required of a husbhanvdin g more than a wife is in respect of time, feeding, clothing, accommodation and other thinhgast tare within his capacity. As regards his feeling and love, it is not possible for him to jduos tice for one that has more than one wife as enumerated in the Quārn’.Allah says: “You will never be able to do perf ejucst tice between wives even if it is your ardent desire, so do noctl ini e too much to one of them (by giving her more of your time and provision) so as to leave oththeer hanging (i.e. neither divorced nor married). And if you do justice, and do all tha tr iigsht and fear Allah by keeping away from all that is wrong then Allah is Ever Oft-Forgiving, Mt oMserciful” (Q4:129). The reason for this many not be far-fetchTehde.i r behaviours can not be the same. One wife may be caring, kind, loving and show concern. Shaey mbe ready to bear with the husband in all situations. The others may lack these virtues.s ,I t thi erefore, natural to have more feelings towards the former than the latter. Despite thefe rdeifnces in their behavior, the Qāunr ’warns man not to abandon one totally or neglect her.h iIsf thappens, the abandoned wife will feel unwanted and unhappy. He should manage the aifnfa sirusc h a way that none will feel dejected, neglected and unwanted. Man should put in minda tdhveic e of the Prophet when dealing with his wives. He said: “Whoever, marries more than wonife and does not maintain justice among his wives shall be raised paralysed on the Last” .D Tahye greatest reason is that it is allowed in the Qur’ān by Allah but with caution and conditions as exinpelad earlier. It should be mentioned that if a man marmrieosr e than one wife, all the children born by all the wives will have a clear identity of the fathaenrd the respective mother that produced the child. The reverse is not the case. That is if am wano is allowed to marry more than one husband, it will be difficult to identify the actual fathetrh ough the mother may be clearly known. To avoid this confusion a woman is not allowed to marry m tohraen one husband. In addition, there are more women than me onu irn society. If polygamy is not allowed for man, it means some women will be without husbanudrt.h Fermore, problems which may not allow the first wife to perform her roles may ar iisne her. Such problems include barrenness, serious illness, mental illness and lower libidoh.e T sympathy of the husband is desirable. He doesn’t have to send one out in order to take aenr ointh her place. Islam says he should keep them. Even during wartime, widows, unmarried youmnegn etc that are left would be taken care of through polygamy. Through polygamy, they can be rceadt for, protected and made to enjoy the satisfactions of family life and children. It iss aol to curb the sexual evil which is common. Most of the people keep innumerable concubines. A soonlu tio this problem is necessary and polygamy provides the answer. Thus, adultery isv epnreted. Under these circumstances practising monogamy is unjust. Concubinage is raerg suel xual connection with a female who do not hold the legal status of a wife. In other wo, rkdeseping a woman in the position of a wife without marrying her is un-Islamic. 43 Recent Approach to Marriage The father as well as mother should be choosy wt heyn want to come together as husband and wife. To choose a good partner that can raise hye aalst well as well-behaved children is an important duty of every man and woman. In fact, ftohuer qualities the Prophet mentioned must be taken into consideration. For sons to be goomda, rU said a father should marry a good mother. A father should avoid a woman whose defects caenc ta ftfheir children in terms of health and character and this is because a defect in a faotrh ear mother can make the son defective (Tambihul Gafileen p. 46-47). To give credence to this issue, the Propsh reet piorted to have said: “make a careful choice of where to drop your sperm because “genes” pass pfraormen ts to offsprings (Minhajul Muslim p. 92)”. Therefore, the recent approach to marriag geo t ofor genotype before the solemnization of marriage is Islamic based on the Hadith of the hPerot.p Summary In this lecture, I have examined marriage (nikarho)m f the Islamic perspective. Functions of marriage in Islam such as companionship, sexuaisl fascattion, the continuity of human race and divine service are discussed fully. Marriag ceo ims pulsory for some people while it is not for others. It is even prohibited for some peo p Alell. these issues were discussed fully in this lecture. The prohibited categories of partners ianr rmiage in Islam the conditions for the validity of Islamic marriage, polygamy and the rtisg hof both husband and wife are fully examined and discusse d. Post-Test 1. Define nikāḥ and its functions in Islam 2. What are the views of Maliki jurists on marriage? 3. Mention 10 of the women that are forbidden in maagreri in Islam. 4. List and explain with examples where necessary ctohned itions for the validity of marriage in Islam. 5. Discuss polygamy in Islam and the rights of husb andd wife. References Karim, M. (2001)I hya Ulumiddinv ol.ii. chapter 2. New Delhi: Yassar Publishers Ambali M.A. (1998)T he Practice of Muslim Family La. wZaria: Tamaza Khurshid Ahmad (1977)T owards Understandiing Isla.m Lahore: American Trust Publications. Al-kays, M. I. (1991)M orals and Manners in Isla.mLeicester: The Islamic Foundation Ali, M.M. (1986) The Religion of Islam. New Delhi: Taj Company 1-5 Muhammad Muhsin KhanS. ahih al-Bukhari Arabic-Englis. hVolume vii. Beirut: Dar al- Arabia Doi, A. I. 1984.S harī‘ah (The Islamic Law). London: Ta Ha Publish.e rs 44 LECTURE SEVEN Modern Reforms Concerning Marriage Introduction In this lecture you will learn the reforms introdeudc into Islamic ways of marriage by the modernists. They allow what is prohibited in Islac mmiarriage and prohibit what is allowed. In this lecture, we shall examine their reforms ina asr esuch as polygamy and marriage with non- Muslims in the light of the Quārn’ and the Sunnah. Objectives At the end of this lecture, you should be able to: 1. mention some reforms introduced into Islamic magrer.ia 2. understand the stand of Islam as regards marriaitghe n won-Muslims. 3. mention some Muslim countries and the reforms wthearte introduced into Islamic marriage in those countries. Pre-Test 1. List three of the modern reforms concerning marer.i ag 2. Can apostasy bring to an end Islamic marriage? 3. Is it allowed for a Muslim to marry a non-Muslim? 4. Discuss marriage with Sabian. CONTENT The modernist view on polygamy The modernists consider some provisions contain ethde i Qurā’ n and Hadith to be outdated and outmoded. They believe that they are not relevoa notu tr time. The belief that the provisions of Islamic jurisprudence are permanent in nature apnpdli caation is disregarded by them. The elites in the Muslim countries also imbibed this doctr inWee. stern pattern of life has influenced the teaching of Islam to the extent that anything tihsa nt ot in line with it is tagged uncivilized, barbaric and the like. When the imperialists como eth te Muslim countries, they tried to change, modify and remove so many Islamic practices. Thes lMimu scholars who were educated in Europe have been brain washed to the extent tehya ts tehe many things wrong in some aspects of the teachings of the Quārn’. We have said that the Sīh‘ ahr does not oppose limited polygamy (polygyny ).a lIltows it with certain conditions. One of these provisionsli ebved to be outmoded is polygamy. They consider polygamy to be a barbarous provision w hshicohuld not be utilized. To them, polygamy 45 is impracticable in this modern age because it dnoet sconform to the so-called western pattern of life. They introduced un-Islamic restrictions poonlygamy. In Syria, Syrian law on personal status De cnroe 59 article 17 made the prior permission of the court a condition before a person can marrye m thoarn one wife. The court would determine the ability of the husband to do justice betweeen ctoh-wives. If the court is satisfied, the man would be given the permission. However, the detnearmtioin is neither feasible nor possible. They all know it would be difficult for any man to geot ucrt injunction in his favour because of the impossibility of determining the capability of theu sband as regards justice. This is an indirect way of prohibiting polygamy that is allowed by Ahll.a It was in Syria that the law reforms started in 1952 before it extended to other Muslim counst.r iTehese countries have gone against the Qur’ān and the Sunnah. Another condition is that there must be solamwef ul benefits in the polygamous marriage before it can be allowed (as in Iraq law). Thisa liso not possible to know because the marriage has not come into existence. This reason show st hthea mt odernists wanted at all cost to forbid polygamy. The same provision against polygamy nist acioned in the Iraq Law of personal status of 1959, article 3 (IV), the Malaysian law secti o3n7s, the Iranian law etc. Another argument of the modernist is that Qthuer’ān (Q4: 129) states clearly that it is not possible for a person to do justice no matter honwe doesires to do so. They therefore, concluded that it is an express injunction against polygamToy .p ut it simply, they believed that the verse prohibits it entirely because to them it is impobsles ito be just between wives. In Turkey, polygamy is forbidden and the ct oiusr empowered to declare the polygamous marriage invalid and dissolved without an excep. tiOone has to dissolve the first wife before one takes the second wife according to the pronv i(sTiohe Turkish Family Law 1951 of Cyprus). The same thing applies in the Tunisia code of pnearls sotatus of 1956. In fact, in virtually all the mentioned countries, there are legal penaltiesa fpoer rson that marries more than one wife. In Tunisia, no one dare marry more than onife . wPolygamy was totally prohibited by the Tunisian code of personal status. It states “Pomlyyg ais forbidden”. Any person who, having entered into a bond of marriage contracts anothaerr iamge before the dissolution of the preceding one, is liable to one year’s imprisonm aenndt to a fine (Act 18). In Pakistan, the Arbitration council needs p teormit the taking of the second wife on the necessity and justification. The consent of thes teinxgi wife was a necessity except in cases of insanity, physical infirmity or sterility. If a pseorn should take a second wife without fulfilling these conditions, he would be imprisoned for onaer yoer be asked to pay a fine up to RS 5000 or both. If them ahr was deferred, he was required to pay it immedia btelfyore he could be allowed to take a second wife based on the approval ocf othuen cil. The existing wife after receiving her deferredm ahr had the right to get divorce. The reformer waitoerd mf ore than 1400 years before they could deem it necessary to prohibit polygaTmhye. Shaīr‘ah law of polygamy has not been tampered or reformed by the modernists in Saudbi iAar, asome countries in East Africa, West Africa and Asia. The modernists do not consider Q4: 3 as aa lm eoxrhortation but it is regarded by them as a legal condition precedent to polygamy. Since imipaal rtrteatment is not possible, marrying more than one wife is prohibited. If polygamy was not allowed, the Prophet and tohme pcanions would not have practised it during their lifetime. Cases from polygamous homwesre brought to him and he found solutions to them. He dissolved some marriages that were wnoortk able. There was no Hadith that 46 prohibited polygamy. Polygamy was not forbiddent hbey Umayyad and Abbasid dynasties. The founders and leaders of the four schools of Isla jmuriicsprudence did not forbid polygamy but found solutions to the problems arising out of pgoalmy ous union. It is only the Qurā’n that allows both monogamy and polygamy (Polyg.y nSyc)riptures such as the Vedas, the Ramayan, the Mahabharat, thea ,G tehet Talmud and the Bible preach polygamy (Polygyny). No restriction to the numbef rw oives a man can have in all these books i.e. one can marry as many as one wishes. Forn icnes tian Judaism polygyny is permitted for it is stated in Talmudic law (the Holy Book of Jews) thAabtraham had three wives; Solomon had hundreds of wives etc. It was Rabbi Gershom benu Ydaenh (960 CE to 1030CE) that issued edict against polygyny. The early Christian men were pitetermd to marry as many wives as they could because there is no restriction on the number voef sw ai man can have in the Bible. It was only a few centuries ago that Christian church, the Hinadnud others restricted the number of wives a man can have to one. Islam allows polygamy (polygamy) as contai nine dQ4:3. This is the chief reason for its permissibility because Allah who created us knows sm uore than we know ourselves. The Qānu r’ however puts an upper limit for polygamy. The isss uoef having scores of wives or hundreds of wives are restricted to the maximum of four. Furthermore, during the pediatric age, thaerree more deaths among males than the females because the latter has more immunity than the fro. rmA efemale child can fight germs and diseases better than the male child. Virtually,e vine ry country, there are more females than males. Even during wars, more men are killed asp caoremd to women. The implication of this is that females would be in abundance. There are feawlseor widowers in the world than widows. This implies that females are more than males. cIno uantry such as India where males are more than females, it is due to the high rate of feminaflaen ticide in the country because more than one million female foetuses are aborted every year. thAenro point in support of the view that marriageable females are more than males is thuee si ssof gay. In many countries women outnumber men because a large number of the mapluel aptoion are sodomites especially in the United States of America, the United Kingdom, Genrmy, aRussia to mention but a few. If every man is then restricted compulsorily without theo walal nce of marrying more than one wife with certain reasons, the resultant effect of this aist tmhany women who are interested in getting married to men would not be able to get husbands. The two options that such women can taket oa rme arry a man who already has a wife or to remain unmarried. The latter is dangerous becahues eu ntmarried women would exercise their sex instinct which Allah implanted in every womann ai wrong way as a prostitute. Therefore, Islam answers the call of nature affirmatively, hw its insistence on the family as the best safeguard of public virtue, and its asseveratioant itth is the only right and legitimate way. The Qur’ān says (Q16:72): “God has made mates for you ofr yoowun nature and made for you of them children and grandchildren and posterity, parnodv ided for you sustenance of the best. Are they then going to believe in vain things and neo tg brateful for God’s favour”. We have said that Islam allows polygamy with cenr tcaoi nditions. We have also said justice should be done to all the wives in the areas oft hcinlog, feeding, accommodation and companionship. What the husband needs to do isro tvoid pe his wives equal treatment according to his means. The Prophet and his companions dti dc onnodemn polygamy. They neither outlawed it nor discouraged any Muslim who had roenaes on or the other to marry more than one 47 wife. They too married more than one wife. Theyd labieautiful examples on how a person wishes to practise polygamy should follow. Some pcaonmions had more than four wives. The misuse of polygamy can be correcteds. Int oit peculiar to polygamy. Other aspects of law are also being misused. If there is a misusee ,s hwould find solutions to the problems. It is not the right solution to cancel what Allah allo wIms.posing a fine or imprisoning a person intending to practise an aspect of the Qānu ri’s a violation of the Shīa‘arh. It is not likely that the consent of the existing wife would be gotten coenrsinidg the very jealous nature of women. By asking a man intending to practise polygamy to sae eskubsisting wife’s consent is an indirect way of prohibiting what Allah allows. The likely resultant effects of suppressin mg an’s desire to take a second wife are adultery, concubinage and prostitution. Despite the prohoinb itoi f polygamy by some churches, some staunch members are said to be polygamists; anyd a tnhde their wives have not been ejected from the fold. Man is a natural polygamous. The effefc bt aonning polygamy is seen in the Catholic church losing some of its members who cannot en dmuorenogamy. Many go to protestant churches, Africa churches and others that accomtme otdhae issue of polygamy. This is because they are silent on the issue. Their silence mecacnesp atance. In Africa, polygamy is recognised. In factt ,i si a measure of success in life and a sign of wealth and nobility. Polygamy is practised in anli munited way for religious as well as socio- economic reason. Whether one is a Christian, Mu solrim a member of an African church, polygamy is an established attitude and is not liag ioreus question but a traditional and sociological one in Africa. Polygamy was an estsahbelid practice among all the early Biblical and Qurā’ nic prophets. It was extended to the time of thoep hper t Mohammad. Most of the reasons given for polygamy weoret rneligious. Many Muslims thought that they should marry as many as possible. This shows oicr ainteds that even for the Muslims, polygamy is not a religious affair so much as a traditiopnraalc tice. They married more wives according to the Yoruba custom. Throughout early history uph teo ttime of the Prophet, there was no limit imposed on limitless polygamy. The Prophet wasf itrhset person to limit it to four wives on the condition that there was equal justice to all oefm th. After the Qurā’nic limitation was revealed restricting the system of limitless polygamy, it ais historical fact that the Prophet did not contract any other marriages. In the west, monogamy is a blended mass oosft iptur tion. The implication of this is that they pretended to be practising monogamy when in acfatucat l they are practising polygamy without responsibility. The account of Dr. Annie Besan gsi vthee full picture: In the words of Mrs. Annie Besant, a founder mem obfe r Theosophical Society, Madras, India in her bookf e' Liand Teachings of Mohammed' writes: “There is pretendmeodn ogamy in West, but it is really polygamy without respobnilsitiy; the mistress is cast off when the man is weary of ahnedr, she sinks gradually as the `woman of street’, for the firsotv el r has no responsibility for her future. She is hundred tim weosrse of than the sheltered wife and mother in polygamous home . sWee thousands of miserable women who crowd the stroefe Wts estern countries during the night. We must surely feetl tith adoes not lie within the Western mouth to reproach Islam for pgoalmy y. It is better for woman, happier for woman, more respelcet afbor 48 woman, to live in polygamy, united to one man o nwlyit,h legitimate child in her arm, surrounded with restp ethcan to be seduced and cast off in the street, perhaps wit hi lleagnitimate child outside the pale of Law”. This is hypocrisy and more degrading thainm ait eld polygamy. The Shīa‘arh is the most just law. Christian countries make a great show of moanmoyg, but actually they practise polygamy. The part which mistresses play in western socise tyo oi obvious to be mentioned. In this respect, Islam is a fundamentally honest religion. A person practising polygamy undertakes sfuulpl port and full paternal responsibility in respect of the children of all his wives. Man isl ypgoamous by instinct. No woman wants her husband to take a permanent rival to herself tore s hias bed, but the alternative of divorce or illicit sex are far worse evils. Most women herwe ayls wanted and still do want the security of a legal husband and family. It is easier to shareu sab ahnd when it is an established publicly recognised practice than when it is carried on estleyc ralong with attempts to deceive the first wife. The modernists believe that if a man is aelldo wto marry more than one wife, a woman should also be allowed to have more than one huds sboa nthat she can also have a variety of sex. It should be borne in mind that men and women qaurea le in Islam but not identical. Allah gave them different capabilities and different responilistiiebs and created sex differences. It is poss ible to identify the father and the mother if a man mhaosr e than one wife. It is no easily possible to identify the father of a child whose mother has em tohran one husband. Before the father can be identified, the three would be made to pass thro guegnhetic testing. The human error cannot be ruled out totally from using this method of ideinctaiftion. The children of this type of marriage undergo severe mental trauma and disturbancesr eassu lat of putting them through this type of test. Man can perform his duties as a husband tdee shpaiving several wives. If a woman has several husbands and they are having extra-maserixta, lt he tendency to be infected with sexually transmitted diseases is high. If one of the hussb asnhdould be infected, he would pass it to the wife, and the wife in turn get other husbands itnefde ceven if others do not have extra-marital sex. However this is not possible with a man ha vminogre than one wife if all of them do not have extra-marital sex. Apostasy The reform of the modernists as regards apostasy thwaat it cannot bring to an end a valid Islamic marriage. To put it simply, if either thei few or the husband should change to other religion other than Islam, the modernists beliehvaet tthe marriage is still valid and continues. Conversion of either of the couple to another rioenlig is not enough ground to dissolve a valid Islamic marriage. An example of this is containne dth ie Indian Anglo-Mohammedan law of the Act 1939 and the Muslim Family Law Ordinance of 1.9 6 The Holy Qurā’n states categorically that a Muslim man should mnoatrry a polytheist woman (Q2:221). 49 cَِْآaٍ َوَ Dْ َأOََْ:2ُْ>ْ َوَ  DTُ<ِ9ْEُا ُ ِْ ٌ4َْ aٌ9َِiُْ aٌَ&َ  َوَ ِiْ-ُ C2 ?َ َِآِتcْAُ َوَ  DTُ<ِ9ْEَا اْ Fُ cٍِْك َوَ Dْ َأOََْ:ُ>ْ ُأوَ ِ[َ َ-DُIَْن ِإَ C ا 9ِر َواُ ِْ ٌ4َْ ٌِiُْ Iٌ:ْ,َ D9ُا َوَِiْ-ُ C2 ?َ اْ cْAُِِآ4َ آُوَن َ2َ-َ ْ3ُ ,َ  9ِس َِ FِEِ-َZَ ُ4 َ-DُIْ ِإَ C اْ Oَ aِ9 َواْ 1ِoْAََِة ِِ!ْذِ Fِ َوُ-َ: And do not marry Al-Mushrikât (idolatresses, etcill. )t hey believe (worship Allâh Alone). And indeed a slave woman wbehloieves is better than a (free) Mushrikah (idolatress, etce.v),e n though she pleases you. And give not (your daughters) in maagrer i to Al- Mushrikûn till they believe (in Allâh Alone) andr ivlye, a believing slave is better than a (free) Mushrik (idolaterc, .e),t even though he pleases you. Those (Al-Mushrikûn) invite you to F tihre, but Allâh invites (you) to Paradise and Forgiveness by Hiasv Lee, and makes His Ayât (proofs, evidences, verses, lessons, ,s irgenvselations, etc.) clear to mankind that they may remember. This is against the stand of the modernTishtse. so-called reformers believed that marriage of Muslims with non-Muslims is valid and it can conutein even after the latter renounces the Religion of Islam. Marriage with non-Muslims The modernist allows what is prohibited in Islammica rriage. They allow Muslim women to marry non-Muslims. An example is the Turkish Fam Lilayw of 1951. The reformers are also silent about the marriage of Muslim men with non-sMlimu women who are polytheists. Muslim men can only marry Muslim women or womenA ohfl ul kitab. Women who are noat hlul kitab must not be married. The reformers did not seeh ai ngy tbad in a Muslim man marrying either a polytheist or a non-Muslim of other religion oththear n Ahlul kitab. During the lifetime of the Prophet, the Preotp hforbade his companions from marrying polytheist women. An example is the case of a Mmu sclai lled Kannaz Ibn Hasin al-Ghanawi who was in love with Anaq, a polytheist woman and wda ntote marry her but the Prophet forbade him from marrying her. This is because the relation sh uosfband and wife are not only sexual, but also spiritual. A Muslim should not enter such ar rmiaage with non-Muslims in the name of liberalism or modernity or the so-called civilizoanti. Marriage with a woman of the people of the Book (Ahlu-kitab) is permitted in Islam (Q5:6) i.e. marriage witehw Jish and Christian women is allowed. If one knows that if one marries women of ptheeople of the book and one can keep one’s children immune from the influence of their moth, eornse can enter such a marriage. Otherwise one should avoid it because there are one thouasnadn do ne Muslim women without husbands. The companions who married non-Muslims had the snseacrey strength of character to prevent their non-Muslim wives to convert their childrent oin other religions. Their children maintained the religion of Islam. Abdullah b. Umar considerCehdr istian women as polytheist because they say that their Lord is Isa (Jesus) when he is bsuetr vaant of Allah. There are some practices that Jewish woman or Christian women do that a Muslimou sldh not do. Some Christians bow down for the statue of Mary. Some Jewish or Christianm weno can sip or drink alcoholic drinks. They can also pray to Jesus. Jesus is even conside rtehde ira saviour. If a Muslim should do any of those mentioned things, he is a polytheist. Therere, fao Muslim must think twice before marrying this category of wives. 50 Marriage with Sabian Magian women is allowed because they are regarsd eAdh la kitab (people of the book). There are various reports on this tribe. It was believed obmy es that they live in the vicinity of Mosul while some believed they live in the vicinity of Iraq. mSeo believed they read the Psalm of David. Therefore, they arAe hlu kitab. Some believed that they fast for thirty days;y thbelieve in Allah and some prophets; they pray five times a day; tshaeyy with their mouths, āL’il āha illā llah (there is no god but Allah) to mention but a few w ohfat they do. They are mentioned in the Qur’ān (Q5:69). Tً ِVَ PَAََِو ِِhَ ِ Fِ َواْ Dْ4َِم اْ ََZَ ْ D]ُِYَن َوا Yَ9َرى َ  َهُدوا َواَ-ِ D9ُا َوا َZَ َ-ِ ن ا ِإ Dَْ َBٌَف 3ِ4ََْْ َوَ  ُهْ َ-D ُ7َTَْن “Surely, those who believe (in the Oneness of hA, lliân His Messenger Muhammad SAW and all that was revealed to him from Allâh), th owsheo are the Jews and the Sabians and the Christians, - whosoever believed in Allâh and thaes tL Day, and worked righteousness, on them shall be no fear, nor shall they grieve”. Based on these account, a Muslim may marry a Sn awboiaman. As regards the wish of the reformer to allMowus lim women to marry non-Muslim men, the Qur’ān categorically forbids such a marriage. It says6:0 :Q10. The Qurā’nic verse speaks for itself as regards the prohibition of Muslim womena rmrying non-Muslims. The believers are warned not to send back to the unbelievers thee vbienlgi women. They are prohibited from marrying non-believing men. Some polytheistic r itwesere performed in consultation of marriages. Items such as cola-nut, honey, sugaer,- caallnigator, pepper, alcoholic drinks etc were used to invoke the spirit of ancestral gods andd geossdes in order to make the couple productive and have a happy married life. Tabanni adoption (Q33:4-5) The modernists also allow what Islam prohibits avincde -versa. Adopted child does not have the status of a natural son or daughter. The mode rcnoisntsidered the adopted child to be unlawful for a person to engage in marriage because theey ehlaevated them to the status of a natural son or daughter. An example is contained in the Tur kcisohde. The reformers twisted the Sharī‘ahorder to accommodate their wishes and desires. Eِ3َُ>ْ َوَ  ُأ 3ُ9َُْ̀>ُ ا Eُ MRَِ<ِهُوَن ِ ََ̀,Pَ َأْزَوا FِBِDَْ̀ َوَ MBِ ِ4ْ:ََْ ِْ Pٍُ̀ َ ِ Fُ ََ̀,Pَ ا َ ِ:Pَ4 (4) اْدDُُهْ  َوُهIِ3ْ-َ Dَي ا Tَ ُ>ْ َِ&DَBْاِهُ>ْ َوا D*ُ-َ Fُُل اُْDَْ ْ<ُ ََ̀,Pَ َأْد4ََِءُآْ َأ9ََْءُآْ َذِ ْ<ُ4ََْ rَ4ْ  َوَDَاِ 4ُ>ْ َوَِ-I 3ِRَِhَْ ُهDَ َأَْIَ9ِْ qُ ا Bَ Fِِ!ْن َ ْ DAَُ,ْEَا Zَََءُهْ Dَْ!ِBَاُ ُ>ْ MBِ اِ (5) Aً4?ًِرا َرD1ُ\َ Fُ IَAْت Dُُُُ>ْ َوَآَن ا ,َEَ َ ْ<ِ 9ٌَُ̀ح Aَ4Bِ َأFِِ ْEُ&ْKَْ َوَ Allâh has not put for any man two hearts inside bhoisdy. Neither has He made your wives whom you declare to be yloikuer mothers' backs, your real mothers. [AzZihâr is tshaey ing of a husband to his wife, "You are to me like the bafc mk yo mother" i.e. You are unlawful for me to approach.], nor has Hea dme your adopted sons your real sons. That is but your sga ywinith your mouths. But Allâh says the truth, and He guidetsh eto ( Right) Way (Q33:4).Call them (adopted sons) by (the namesth oefi)r fathers, 51 that is more just with Allâh. But if you know nohte itr father's (names, call them) your brothers in faith and Maîwkuâml (your freed slaves). And there is no sin on you if youk em a mistake therein, except in regard to what your hearts deerlaibtely intend. And Allâh is Ever OftForgiving, Most Merciful (Q353).: Summary In this lecture, I have discussed modern reformsn cecroning marriage. The reformers considered polygamy to be prohibited. Howevera, mIsicl law allows limited polygyny. They also considered adopted child to be unlawful fopre ars on to engage in marriage. Islam does not give adopted child the status of natural so dna ourghter. Therefore, it is allowed to engage adopted child in marriage. Apostasy renders alanm Iisc marriage invalid. The modernists believed the marriage is still valid. A Muslim suhldo not marry a non-Muslim. This is against the stand of the reformers. Marriage with Sabsia lna wi ful because they do all what a Muslim does and refrain from all what a Muslim avoids. Post-Test 1. Mention 4 of the Muslim countries the imperialiscths anged, modified and removed Islamic practices. 2. Discuss the reforms introduced into Islamic praecst iicn 4 of the Muslim countries. 3. Islam allows polygyny but places some restricti o Dnsis.cuss. 4. Write Q4:3 and Q4:129 in either Arabic or Englisnhd acomment fully on them. 5. In what areas is a husband must do justice betwhiese wni ves. 6. Can apostasy render invalid an Islamic marriage? 7. Muslims are not allowed to marry non-Muslims. Coemnmt. 8. Is marriage of a Muslim with Sabian allowed? References Hitt. P. K. (1984).H istory of the Arab s. London: Macmilllan Abdati .H. (1975). Islam in Focus. Indianapolis: eArmica Trust Publications An-Na'im, A. (ed) (2002).I slamic Family Law in a Changing Wor.l dLondon & New York: ZedBooks Badran, Margot (1999). ‘Toward Islamic Feminisms : LAook at the Middle East’ in Afsaruddin (ed.) Esposito, John L. with Natana J. DeLong-Bas (2) 0W01omen in Muslim Family Law .Syracuse, N.Y: Syracuse University P ress Khurshid, Ahmad (1977). Towards Understanding Is. laLmahore: American Trust Publications. Al-kays, M. I. (1991). Morals and Manners in IslaLmei.cester: The Islamic Foundation Ali, M. M. (1986). The Religion of Islam.New De:lh Ti aj Company 1-5 Muhammad Muhsin KhanS. ahih al-Bukhari Arabic-Englis. hVolume vii. Beirut: Dar al- Arabia 52 Doi, A. I. (1984).S harī‘ah (The Islamic Law). London: Ta Ha Publishe rs. Abdul-Rahmon, M. O. (1982) Thoughts in Islamic Lanwd Ethics. Ibadan: UIMG A 53 LECTURE EIGHT Divorce in Islam, Modern Reforms concerning Divorce and the Islamic Perspective Introduction This lecture will introduce you to divorceta (laq) in Islam, the modern reforms and the Islamic perspective. Objectives At the end of this lecture, you should be able to: 1. mention various ways by which marriage can be dlvisesdo in Islam 2. understand very well different terminologies user dfoissolution of marriage in Islamic law. 3. explain both revocable divorce and irrevocable rdcievo. 4. enumerate the modernists’ reforms and the Islameriscp pective on divorce. Pre-Test 1. Mention some terminologies used for dissolutionm oafr riage in Islam. 2. Discuss 5 of the ways by which marriage is dissdo livne Islam. 3. A unilateral divorce which the Shīa‘arh allows is prohibited in some Muslim countries. Comment CONTENT Divorce which is reluctantly allowed in Islam is wao rd use for the cessation of a marriage contract. Spouses are encouraged to stay togeotrh elifre f, and they are to consider marriage as a strong covenant which must be guided jealously. eHvoewr, if they cannot live together in peace and harmony, they are not forced to stay marrieedc.o Rnciliation must be done to keep them together if there is a dispute between the spo uIfs eits f.ails or is impossible, Islam reluctantly allows it. There are various ways by which marr iacgaen be dissolved in Islam and different terminologies are used for dissolution of marriaing Ies lamic law. 54 Divorce at the instance of the husband (alaq) When a husband wishes to divorce his wife, he purnocneosḥ alaq when the wife is not doing her menstruation. Immediately, the word is pronounctheed , wife starts heird dah period of about 3 months in her husband’s house or any agreed pTlahcee .h usband will be responsible for her feeding, clothing and shelter as usual. One of rethaes ons for theid dah is to allow time for reconciliation. Another reason is to confirm wher ththee divorced wife is pregnant or not. A woman in the iddah cannot marry until she finishers iddah period. During this period, the husband should novte h saexual intercourse with her. If he does, the divorce has been revoked by him and the marriagll ec ownitinue. The dispute may also be settled during the iddah and the husband can revoke thoer cdeiv. Both then continue to be husband and wife. No formalities are necessary to abrogatev ao craeble divorce during these months. A mere indication of desire for renewal of the marriagela trieonship by them suffices. This is called revocable divorce. If reconciliation is not posesi btilll the end of theid dah, the wife remains divorced. She is free to marry another man. Irrevocable divorce It is allowed to pronounce divorce and revoke itic tew before the expiration of the iddah. It should be mentioned that on the third occasionr onf opuncing it, the man cannot take her back again. She has to go and marry another man. T hcisa lliesd irrevocable divorceḥ (alāq bā’in ) (Q2:230). This is to check the husband’s licenc dei vtorce as often as he liked, by declaring that revocable divorce could be given only twice. Itu nisl awful to pronounce divorce three times on one and the same occasion with a view to meaniantg dtihvorce had been given three times (Q65:1-2). The Qurā’n is against this type of divorce and the Prophlseot farowned at it. When a case of this type of divorce three times at an sgi ttwi as brought to him, he annulled it because it makes a revocable divorce irrevocabḥlea l(āq bā’in ) (Q2:230). If the second marriage after consummation fails without the first husband innflcue or manipulation, the man can take her back. It means another man must have had sexuearcl oinutrse with her. There should not be a false marriage between the woman and the seconbda nhdu swith a view to satisfying the rule of the Shaīr‘ah. This meansta hlīl is prohibited.T ahlīl or halāla is a way of making lawful the wife that had been irrevocably divorced by means of opuronncing the triple divorce. The method was that she married another man on the understandhiantg t ht e man (the second husband) would divorce her without having sexual intercourse whiethr . When the second husband divorced her, she would become lawful (hāal)l for the first husband to remarry her. Hālal was a trick and deceit and Allah’s curse is on those who practti.s Te hie Prophet is reported to have said: “The curse of Allah is on the man who commits āhlaa l and the man for whom the hālal is committed”. Divorce at the instance of the wife Khul‘ is derived fromK hul‘ al-thawb (meaning removing the dress). LiterallKyh, ul‘ means releasing or removing as it is derived froKmhu l al-thawb meaning removing the dress. This is in line with the Qurā’ nic verse “Women are your dress and you are threeirs sd” (Q2:182). Technically, it means a method of divorce in whtihceh wife asks her husband to release her. The wife will agree to give back all or part of hḥera daq/mah,r or anything else that is mutually agreed in return for her release from the marr iaIfg teh.e wife should have such hatred for her husband that she repays him tmhae hr that terminates the marriage. It should be menetdio tnhat 55 this type of divorce is revocable within the sta tpeedriod. If she changes her mind during the iddah period and her husband agrees, he can still teark be ahck into his home (Q4:128). Divorce by a Sharī‘ah Court (Faskh) The wife whose husband is not treating her well rceasnort to the Shīa‘ar h courts. The wife whose husband has also been incapable or negliing esnutp plying her with maintenance or has put obstacles in the way of her obtaining it can to g tohe court. If either partner deprives the o ther of conjugal rights or fails in marital duties anhde tcase is taken to the court, the court can co mpel them to treat each other right. If either provecsa lrceitrant or refuses to obey the judge’s order, the judge can compel them to divorce. In additiof nth, e husband accuses his wife of lewdness, unchastity or unfaithfulness or denies his own rpnaittye and cannot prove his case, the judge may order the marriage to be dissolved. The wife is tnoo tgive back anything to the husband. (Q2:229). If all the complaints are found to bee t raund genuine the judge may order the marriage to be dissolved. Divorce by Mutual Consent of Husband and Wife M( ubara‘ah) In cases of irreparable breakdown of relationsh tihpes ,partners can mutually agree to separate. The two can agree to separate after everythingi bploe sis done to ensure happy sound home-life for the sake of the family’s members and of theie stoy cto which they belong fails and they found out that their misery is only increased and thek bruapntcy of the relationship is only worsened by forcing them to stick together. The mutual agreetm oef nhusband and wife to separate is called mubara‘ah. It is like a divorce by the husband. Husband’s Comparison of wife’s back with his mothe’rs (Zihar) During the days of ignorance, an Arab would sahyi sto w ife anti ‘alayya ka sahri umm mi eaning you are to me as the back of my mother. The imtpiolinca is that if he sleeps with his wife, it is as if he sleeps with his mother. The woman remainesde rdted and she was not at liberty to leave the husband’s house. This was to punish the wsiflae.m I frowns at this culture. It then prescribes that such a declaration puts an end to the mar r(iQag5e8:1-4) and imposes on the husband who wants to resume conjugal relations with the wife f rteoe a slave or fast for two consecutive months or feed sixty poor people. Oath of Conjugal Suspension (I‘la ) During the pre-Islamic period, the wife might bep tk ein a state of suspense for the whole of her life to punish her by the taking of oath that onhea lls not go in to one’s wife. The period of such an abstention was unlimited. The Holy Qāunr ’commands that if the husband does not resume conjugal relations within four months, the wifed iisv orced (Q2:226-227). Mutual Imprecation ( Li‘an ) Li‘ ān is derived froml a‘ana meaning curse. Literally, it means mutual curs Tinegc.hnically, it is a way of dissolving a marriage when the husbandu saecsc his wife of committing adultery or his wife has given birth to a child which is not his no.w He will be asked to swear in the name of Allah four times that he saw his wife committingu altdery or that the pregnancy was not from him. He would then invoke Allah’s curse on himsief lfh is accusation is false on the fifth swearing. If he could not do that, he is entitloe d8 0t lashes for false accusation. However, if she does, he will not be punished. The wife would bkee ads to take her turn. If she does not accept 56 the accusation, she would also swear four times caunrsde herself the fifth time. If she fails to take the oath, it means, she would face death tpye fnoarl adultery. If she takes the oath, that marks the end of their marriage. The judgement incuoenst on the Day of Judgement. The judge pronounces irrevocable divorce and it is left tola Ah lto decide on the Day of Judgement (Q24:6- 9). The Modernists’ Reforms and the Islamic Perspectiv eon Divorce The modernists believe that divorce should be rreendd epractically impossible by severe sanctions because of its effect on family life whh iisc supposed to immunise and protect children from moral ailments and psychic traumas. In casf eisrr eoparable breakdown of relationships, should the partners stay in the hell they have m oar dmeay a way-out be found for them? It is better to bring a marriage to a pealc efnud rather than making the couple and the children live in “hell” indefinitely. However, them odernists make divorce extremely difficult because of the conditions attached. This was aenm patt to change the law of Allah and the Sunnah of the Prophet. The reform introduced ihnitso atspect of the Shīa‘arh family law is that a husband should first of all apply to the court aowf .l A unilateral divorce which the Shī‘arh allows is prohibited by the so called modernistt sis. Ionly the court that can dissolve a marriage. An example is contained in the Turkish Family Lafw 1 9o51. Also, the lraq Law of Personal status of 1 9p5ro0hibits a unilateral divorce pronounced by a husband unless it is registered and granted bcyo tuhret . This is applicable in Indonesia, Pakistan, Syria, Tunisia, morocco etc. The husband who wi stoh edsivorce his wife must pay the divorced wife an additional indemnity by way of compensa.t ioIfn the two spouses agree to dissolve the marriage, the court may dissolve it. If either wthiefe or the husband insists upon divorce and he or she insists, the court is empowered by the Tiaun iLsaw to dissolve it. Islam realistically faces the consequence isrr eopf arable breakdown as a fact and provides a way-out after necessary steps laid down in the āQnu ar’nd the Sunnah have been taken, and yet the reconciliation is not possible. Their misery oinsly increased. The bankruptcy of the relationship is only worsened by forcing the parrstn teo stick together. Islam makes it easier for people to enter the married state and start fasm, ialielso makes it more difficult to break up the home. Everything possible is done to ensure hapopuyn ds home-life, for the sake of the family’s members and of the society to which they belonge. reTfhore, it is written in surah 14:19, “O men, live with your wives in kindness and equitfy y. oIu dislike anything in them, that may be the very point which God will use to bring about cmh ublessing”. Islam encourages the man’s conscience to live in kindness and equity with epnactei , and not to cast off a wife who is temporarily in disfavor, since it may be that goeosdsn and blessing may come through those very wives; so that it would be stupid to end the reolnastihip hastily. In the same chapter (Q4: 128), Allah says: “If a wife fears cruelty or desertion hoer husband’s part, there is no obstacle to their arranging an amicable settlement between them hfoicr hw the wife must renounce some of her rights. But if they return through reconciliation da peace through such unselfishness, such a settlement is better than separation and divorTchee”. initiative to remove differences and restore understanding in family life is preached in the ’Qānu.r Well meaning relatives do everything possible to bring about reconciliation. They sho sutluddy causes of differences and go deep into confidential matters without either of the coupelee lfing that their private secretes are being exposed while taking these steps. The memberse o tfw toh families should exert all their powers 57 of sincerity and affection to bring about reconactiloi n. Both should be exhorted to unselfishness, tolerance and understanding of each other’s pof ivnite ow The couple should respect the elders and hfualvl econfidence in their compassionate affection and allow affection and peace to reig nth ienir family (Q65:2). Two just persons from amongst you shall bear witness to the evidencer eb eGfood when a divorce is settled. Without these two witnesses, there is no legal divorcea. dAvna ntage of their appointment is that they can exert every pressure of affection and wisdom tor ta tvhee final catastrophe for quite a period before reluctantly, if they have to do so, agre etihnagt there is no other way out. No divorce is allowed save after the woman’s period of purifiocna tai fter menstruation or childbirth completed. Thei ddah period gives a breathing-space which can resu tlht ein man’s change of heart and decision to continue the marriage bond with thee whife planned to divorce. The wife should remain in theid dah period provided she has not committed sins. B suht eif involves in lewdness, she can be ejected. The Qāunr ’says: “You may not expel woman from their hounsoer, may they themselves quit, except if they have been proveilnty gouf some open lewdness (during the iddah period). These are limits set by God. Should anyn mtransgress these limits, he does so at the peril of his own soul, and to his own harm; for ykonuow not whether God may bring about some new situation later (than the decision to divorc. e)” Summary In this lecture, we learnt that divorce is reluctltya nallowed in Islam. We also examined various ways by which marriage can be dissolveIds lianm . Such ways include divorce at the instance of the husbandta l(aq), divorce at the instance of the wife and divobrcye a Shaīr‘ah court. We differentiated between revocable divo racned, irrevocable divorce. A unilateral divorce pronounced by a husband is valid providt eisd ni ot done when he is angry. This is prohibited by the modernists. The issue was exeadm cinritically from the Islamic perspectiv e. Post-Test 1. List some terminologies used for the dissolutio nm oafrriage in Islam. 2. List and explain 4 of the various ways by which rmiaagre can be dissolved. 3. Differentiate between revocable divorce and irreavbolec divorce in Islam. 4. Discuss the modernists’ reforms and the Islamics ppeecrtive on divorce. References Vermin, B.R. (1978).M uhammedan law (in India and Pakista. nA)llahabad. Delhi law house. Yusuf al-Qaradawi, (1989T).h e lawful and the prohibited in Isla. mLagos: At tawheed Publishing Company. Ahmed, Leila (1992W) omen and Gender in Isla (mNew Haven: Yale University Press) Ali, Shaheen Sardar (1999G)e nder and Human Rights in Islam and InternatioLnawl : Equal Before Allah, Unequal Before Ma (nT?he Hague: Kluwer) Feillard, Andree (1997) 'Indonesia's Emerging Mmus Flieminism: Women Leaders on Equality, Inheritance and Other Gender Issues' S4t(u1d) ia Islamika 83-111 58 Bhatnagar, J. P. (1992C) ommentary on the Muslim Women: Containing the iMmu sl Women (Protection of Rights on Divorce) Act, 1 9 A8l6lahabad: Ashoka Law House El-Alimi, S, Dawoud and Doreen, H. (199I6s)l amic Marriage and Divorce Laws of the Arab World. London: Kluwer Law International Sonbol, A. E. (1996) (edW) omen, the Family, and Divorce Laws in Islamic oHriys t (Syracuse, N. Y.: Syracuse University Press) 59 LECTURE NINE Inheritance in Islam, the Reforms and the Islamic Perspective Introduction Allah is the ultimate owner of everything. Thisc boemes very clear to man when he is dead. His ownership of property ceases with his death. Thael orewner i.e. Allah takes control of the property. The heirs are given their divinely-fixsehda res as contained in the Qāunr.’ The dead person or his/her heir is not permitted to dispofsf eh is estate according to his wishes. In this lecture, you will learn how inheritance is sharne dIs ilam. The pitfalls that must be avoided when sharing it and when writing will are to be discuds.s Yeou will also learn the modern reforms concerning inheritance. Objectives At the end of this lecture, you should be able to: 1. explain inheritance in Islam. 2. list some pitfalls that must be avoided when wgri toinne’s will. 3. state and explain the three heads of expendituforere b tehe distribution of the estate 4. quote relevant Quārn’ ic verses on inheritance 5. state the factors that can deprive heirs of thueeirs d. 6. discuss the modernists’ view concerning inherita anncde the Islamic perspective. Pre-Test 1. Mention some things that must be avoided when nwgr iotine’s will. 2. List the three heads of expenditure before theri bduisttion of the estate 3. Mention some heirs and their divinely –fixed sha. res 4. What are the views of modern reformers concernninhge riitance in Islam CONTENT Inheritance is calledm īrāth in Islam. The branch of knowledge that teaches f itxheed shares of the different heirs, in the estate of tmheū rith (the deceased) is callefda rā’id . The prophet encouraged people to learn this branch of knowl eind goene of his traditions. He said: “I shall be taken away, learnfa rā’id and teach it to others…” He also said: O peopalern l efarā’id. It is half of knowledge”. The Prophet is also reported to h apvr edicted that: “The first (branch of) knowledge which will be taken away from my Ummahll wbei ‘ilmul farā’id ”. 60 Allah who is the ultimate owner of everyth inhgas assigned how the wealth He puts in the custody of a person after his death be shared. oMr ahnis heir is not permitted to dispose off his estate according to his wishes and desires wit hd ehaisth. His ownership ceases. The ownership moves to his heirs automatically. Their divinelxye-fdi shares should not be tampered with. The consequence of changing the Sī‘haahr laws of inheritance or tampering with them eisll hon the Day or Reckoning. Allah will cast him into the F;i rfeorever will he dwell therein; and for him will be a disgraceful punishment. Some of the things that must be avoided when shargin/writing one’s will 1. A disobedient child or a hated parent should no et xbceised from the will or his share. A daughter or son who is very rich should not be uedxecdl from inheritance for the reason of being wealthy. His share must be given to him d. aAughter or a son married to a wealthy person should also not be excluded from in theritance. 2. However, if a person kills another person with eaw v ito inheriting him or her, he should not be given his shares. He is barred from inhnecreita. Non-Islamic law should not be used to administer the inheritance. Every heir m bues gt iven his fixed share based on the Qur’ānic injunctions and the Hadith. However, a guar dcian be appointed to manage the shares of a minor on his behalf till he is mrea.t u 3. All the estate must be distributed in line with tlhaew of inheritance as contained in the Qur’ān. Therefore, there is no room for reserving somroep eprty to an heir and sharing the rest 4. Adopted child and grandchildren should not be idnecldu in the sharing of the estate. It is not allowed to bequeath more than a third of thoep eprty to those that must not inherit i.e. the maximum a person can give to non-he⅓ir i.s T his one third which he allowed to bequeath to non-heirs is by divine injunction. Haen conly act by his volition on the one third. 5. Wish or no wish does not matter as regards inhnecreit.a The testatorm (ūrith) does not have a say in the sharing except a third and thires hcoeuld not exercise his volition to accept or to reject the inheritance. It means ihf eainr is not interested in the inheritance, his wish does not cancel his right of inheritance. 6. If an heir is given more than his dues in the inithaenrce, he should rectify the injustice in the will. Otherwise, he is consuming hell. A per ssohnould not dispose his estate during his life time so as to deprive his heirs their sehsa. r 7. The rule of inheritance should not be applied wohneen is making gifts to one’s sons and daughters during one’s life time. Both should bvee gni gifts of equal value during one’s life time. 8. Wealth acquired by unlawful means e.g. gamblingo,s tpitrution, bribery and corruption, theft, interest (riba) etc should be excluded frionmhe ritance. These should be returned to their rightful owners if it is possible. Otherwi steh,ey should be given aḥsa daqaht o the poor on behalf of the true and untraceable owners. 9. If a decreased used an asset as collateral se cfourr itay debt, it should be sold and the amount used to pay his debt. If there is an exacfetessr paying the debt, it must be shared among the heirs based on their fixed-shared. Ief cae adsed has paid insurance premiums, the actual premiums are part of the inheritance. eTxhcess is not shared but given to the poor. 61 10. If a deceased is a partner in business, the buss irneemsains dissolved and his share is calculated and given to his heir. He is not endt itloe future profits of the business. 11. Heirs do no inherit lease. If the asset is heisr’se at, it is shared. If he is a lessee, the asset is returned to the lessor and the balance is gtiov ehnis heirs. 12. A sum of money set aside for performing Hajj; magk ignift; building a mosque or a school; buying jewellery for a particular persona;y ipng zakat etc should form part of the deceased estate to be shared by his heirs if hlde ncotu exercise them before he dies. The Three Heads of Expenditure before the Distribuiton of the Estate The three heads of expenditure that must be tankteon c oi nsideration first before the distribution of the deceased’s estate are: All expenses incurred wholly and exclusively fohre tburial of a deceased person must be deducted from his estate before the distributiohne. Texpenses include the bricks used in the grave, the cost of transporting the deceased t og rhaivse, the payment made to the one who bathes the deceased, the cloth used to wrap heim c,o tsht of the piece of land used to bury him and other related costs. However, if someone dse ctiod epay for all these expenses, they should not be deducted from his estate. A husband is ator tbhee expenses for the burial of his wife or children if he is financially capable. Otherwishee, tpeople of the neighbourhood or the Muslim community may bear them. The second head of expenditure is his debhticsh w should be paid from his estates before the distribution it should be recalled that the prop rheefut sed to prays alatul Janāzah on one of his followers. The Prophet’s refusal to obsesrvaela tul janāzah of a person is because of the person’s unpaid debts. It was when a companion, Abu Qatagdaavhe a guarantee that he would pay the debts that the Prophet led the funeral prayer aotf ptherson. Narrated bSy alama b. al-Akwa: “Once, while we were sitting in the company of tPhreo phet (PBUH), a dead man was brought. The Prophet (PBUH), was requested to lead the aful nperar yer for the deceased. He said, “Is he in debt?” the people replied in the negative. Hied , s“aHas he left any wealth?” they said, “no.” So, he led his funeral prayer. Another dead man bwraosught and people said, “O Allah’s Apostle, lead his funeral prayer.” The Prophet (PHB) Usaid, “Is he in debt?” they said “...Yes” He said, “Has he left any wealth?” they said, “eth rdeinars.” So he led the prayer. Then a third dead body was brought and people said (to the Pert)o,p “hPlease, lead his funeral prayer” He said, “Has he left any wealth?” they said, “no.” aHseked “Is he in debt?” They said, “Yes! He has to pay three dinars.” He (refused to pray) , s“aTihden pay for your dead companion. Abu Qatadah said. “O Allah’s Apostle! Lead his funeprraal yer and I will pay his debt.” So he led the prayer” (Bukhari, v. 3, p. 271). Once a companioanid sto the Messenger of Allah! My brother has died and has left small children, should I dsp menoney on them (rather than pay his debts). The Prophet said: “Your brother is imprisoned ocno aucnt of his debt. Pay his debt”. This shows that the claims of creditors extend into the liftee ra death. Therefore, the heirs and other well- wishers of the deceased should endeavour to pa dye tcheeased’s creditors. Some of the debts may include:  Confirmed money borrowed from individuals or coraptoer bodies.  The unpaidm ahr (obligatory bridal gift) of the wife  The outstandingz akat 62  Kaffārah i.e. the cost of feeding a person who wants toe rovbes the fast of sixty consecutive days, or the cost of feeding sufficlyie snitxty poor persons or the cost of freeing a slave.  It‘ ām; the cost of feeding a person in lieu of Ramadaasnt tfhe deceased could not observe due to extreme old-age or illness. The third heads of expenditure that must ebdeu dcted from the estate before the distribution is the wasiyyah i.e. the will. This should not be more th⅓an o f the remaining estate after the first two heads of expenditure have been taken care mofa. nA is allowed to dispos⅓e of his estate (at will and wish (i.e. according to his discretion) ewnh he is sound and healthy. However, when a person approaches the last stage i.e. when hef feisr insgu from maraḥul mawt (the illness in which a person dies), his unfettered freedom ish dwraitwn. The right of the heirs in his estate take effects. This estate must be shared accotrod itnhge law of inheritance. Legality of Inheritance and Will (Q4: 6-14,176; Q5 :105-108) 3ُ9ْْ ُرIًkْا BَْدD,ُBَا ِإَ 3ِ4ْْ َأْDَاَ 3ُْ َوَ  Eَْ&ُآDَُه ِ ْ2ُْ َZَ ْن!ِBَ 9َ>َح ?َ C C2 ِإَذا Doََُا اَ2َ4َ َواDُ2َْا اْ ْ2ُ,ْBََذا َد!ِBَ ُوِف,ْAَ ِْ Pْ4َْْ&ُآBَ 4ًا*ِBَ َآَن ْْ4َْBَ 4utْ1ِ,ْ2َ َوَ  َآَن َ\9ِِْإَْاBً َوIَِاًرا َأْن َ-ْ>َ:ُوا َوَ Eَ Aََك اْ Dَاِ Iَاِن ِ wٌ4Yِ َ َِ̀ل   ِ (6) :ً4ِ?َ Fِ ِ C1َوا 3ِ4ََْْ َوَآIُ3ِkْ&َBَ ْ3ُ ِإَ 3ِ4ْْ َأْDَاَ xً1ُْوَ :ً4Yِ َ َnَُأْو َآ Fُ9ِْ P َ A  Eَ Aََك اْ Dَاِ Iَاِن َواْ َ&Dََُْن ِ ِ wٌ4Yِ َ ِء9َ  َواْ َ&Dََُْن َوِ  ًDَْ ْ3ُ Dا َُDَُو Fُ9ْC َواْ Aََِآ4ُ BَْرُزDُُهْ َِ2َ4َ (7) َوِإَذا َ?Wََ اْ ِ*ْaَAَ ُأوُ D اْ ُ*Cَْ َواْ Dا ُD*ُ4َ D*ُ2ا ا Fَ َوْ 4َْBَ ْ3ِ4ََْ اDBَُ Bً,َxِ aً- ر  3ِ1َِْْ ُذْ Eَ DَُْآDا َِ َ-ِ ْ,ُوBً (8) َوْ Sْ4ََ} ا َ Aَ َ-ْ&ُآDَُن DKُُ MBِِ 3ِْ َ ًرا َوDَْYْ4َََن Aًْ}ُ C ِإَ2َ4َ  َ-ْ&ُآDَُن َأْDَاَل اَْ-ِ ن ا  Iً-Iَِا (9) ِإًDَْ  3َُBَ ِ4ْ2َ9َmَْق اDْBَ ًءَ ِ   Bَِ!ْن ُآِ4ْ4َnَ ْ&ُ  اْ ?َ Pُnْ َآِ ِ  َِ,4ًا (4VِD-ُ (10ُ>ُ ا MBِ Fُ َأْوَ ِدُآْ ِ Fُ Eَ Aََك ِإْن َآَن َ 'Iُُس ِ Aَ3ُ9ْ اِ Iٍ?َِوا P <ُ ِ Fِ-ْDََ&َ tُYْ9 َوِ  Eَََك َوِإْن َآَ ْ] َواِ?Iًَة 3ََBَ اَ nَُmُ aٍ4 Vَِو Iِ,َْ ْ'Iُُس ِ Fِ ا &ُِBَ ٌةDَِْإ Fُ Fِ ا 'Bَ Qُُnِ!ْن َآَن َ &ُِBَ XُاDَََأ Fُmََوَوِر Iٌ Fُ َوََ ْ<ُ-َ ْ َوَ Bَ Iٌِ!ْن َ ن ا Fَ َآَن  ا Fِ ِإَِ aًWَ-ِBَ ,ً1ْ َ ْ<ُ '-3ُْ َأَُْب َ ُ-MVِD 3َِ َأْو َدْ-ٍ Zََُؤُآْ َوَأ9َُْؤُآْ َ  IْEَُروَن َأ ُ<َُBَ Iٌ  َوَ 3ُ  َوَ Bَ Iٌِ!ْن َآَن َ 3ُ َ ْ<ُ-َ ْ ُُ̀>ْ ِإْن َ  Eَََك َأْزَواَ tُYْ ِ ْ<ُ Aً4<ِ?َ Aً4َِ (11) َوَ Iٌ ُ>ْ َوََ ْ<ُ-َ ْ Eَ Aَْآ2ُْ ِإْن َ ِ Jُُ'  ا 3ُ  3َِ َأْو َدْ-ٍ َوََ4VِD-ُ aٍ4 Vَِو Iِ,َْ ِْ  Eَ Aَْآَ ِ Jُُ' ا Pٌُ̀  َْ,Iِ َوVِ DVُDEُ aٍ4َن 3َِ َأْو َدْ-ٍ َوِإْن َآَن َرْ Eَ Aَْآ2ُْ ِ ِ ُAُn'  ا 3َُBَ Iٌ Bَِ!ْن َآَن َ ُ>ْ َوَ ْ3ُBَ َ  َذِِْ َnَا َأْآD ُْن َآ!ِBَ ُسIُ' Aَ3ُ9ْ اِ Iٍ?َِوا P <ُِBَ [ٌَْأٌخ َأْو ُأ Fُ ُ-Dَرُث َآََ aً َأِو اََْأٌة َوَ ٌ4ِ?َ ٌ4َِ Fُ  ا Fِ َواَِ aً4 Vِر َو‚ Wَُ َ4ْ\َ  َْ,Iِ َوVِ CVَD-ُ aٍ4 3َِ َأْو َدْ-ٍِْ Qُِn' kََُآُء MBِ ا 3َ4Bِ َ-Iِ  3َ2ِTْEَ اْ َ&ْ 3َُر َِْ 9ٍت OْEَِي ِ َ̀ FُِْIْ-ُ Fُ َDَُوَر Fَ  ُ-JِKِ اْ(Iُ?ُ َْEِ (12وُد ا Fِ َوَ Fُ Iُ?ُ IوَدFُِْIْ-ُ Xُ َ ًرا َِ Iًا 3َ4Bِ َوَ Fُ َوَ-2ََ,َDَُوَر Fَ  َ-ْ,ِƒ اَْوَذِ َ اْ Dْ1َُز اْ َ,ِ<4ُ (13) َوَ (14) ٌ43ِ ََاٌب ُ  Eَََك َ tُYْ ِ 3ََBَ [ٌُْأ Fُ Fُ َوَ Iٌ َوََ rَ4ْ aِ ِإِن اٌُْؤ َهََ َََ<َ َ-ْPُِ َ َD2ُ1ْ2َ ا MBِ ْ<ُ42ِ1ْ-ُ Fُ اْ  ًَ̀ Eَ Aََك َوِإْن َآُ Dا ِإDًَْة ِر  Aَ3َُBَ ا 'nَُnِن ِِ4ْ2َ9َmْْن َآَ 2َ ا!ِBَ Iٌ 3َ َوََ ْ<ُ-َ ْ َوُه3َmُِ-َ Dَ ِإْن َ Mْkَ Pٍء 4ٌَِ (176 <ُِ Fُ ُ>ْ َأْن D'WِEَا َواَ Fُ  اُ4 :َ-ُ ِ4ْ4َnَ ْ&ُ  اْ ?َ Pُnْ َوِ ًَء Bَِ َآِ ِ 63 D9ُا 3َkََدُة 9ِ4َُْ>ْ ِإَذا َZَ َ-ِ '-3َ ا :ُ[ُ>ْ Aَِ ُآDُAَ,ْEَ ْ2ُ9َْن (105) َ- َأ 9َ4ُBَ ,ً4Àَِ ْ<ُ,ُِ̀ َْ Fِ ِإَ C ا MBِ ْ2َُْxَ ْ2ُ ْ4ُِْآْ ِإْن َأ\َ َْ?Wََ َأَ?Iَُآُ اْ DْAَُت ِ?4َ اْ VِDَ aِ4 ا9َmِْن َذَوا Iٍَْل ِ9ُْ>ْ َأْو Zَََاِن ِ  َ 2َcِْي َ ْ2ُ:ْEَِإِن اْر Fِ Yَِة ِ*ْ4ُBَAَِن ِ  َْ,Iِ اِْ Aَ3ُ َDُ:ِTْEَ ِتDْAَ aُ:َ4Yِ اُْ ْ<ُ2َْVَ&َBَ ْرِض&َ اْ Aَ3ُ  (Bَ (106ِ!ْن Cََ َnُِ َأَ4Aِmِhَ  اَْAِ  ِإًذا َ 9ًAَmَ Fِِ َوَ Dْ َآَن َذا Cَُْ َوَ  َ ْ>3َkَ ُ2َُدَة ا Fِ ِإ 9َEُ3ََدcَ َ Fِ  3ِ4ََُْ اْ َ&ْوَ 4َِن ِ*ْ4ُBَAَِن ِ Tَ2َْا َ-ِ  ا َِ Aَ3َُ*َِن ََD*ُ-َ ََاِنhَBَ Aًmِْإ * Tَ2َْا Cََ 3ََدِةc  (107) َذِ َ َأْدَ C َأْن َ-ْ&DEُا َِ4Aِ ِ>  اَAِ  ِإًذا َ  3َkََدAَ3ِEِ َوَ اIَ2َْْ-9َ ِإِْ ' َأَ? َ4*ِِ1َ  َ-Iِ3ْي اْ َ*Dَْم اَْ Fُ د َأْ-Aٌَن َْ,Iَ َأْ-Aَِ 3ِْ َوا D*ُEا ا Fَ َواD,ُAَْا َوا َEُ ا َأْنDBُSَ-َ 3َ3ِْ̀ َأْو َو (108) And try orphans (as regards their intelligence) il utnhtey reach the age of marriage; if then you find sound judgement in th ermele, ase their property to them, but consume it not wastefully, and hastilayr ifneg that they should grow up, and whoever amongst guardians is rich, he shoukeld ntao wages, but if he is poor, let him have for himself what is just and reasoen a(balccording to his work). And when you release their property to them, take wsistn ine their presence; and Allâh is AllSufficient in taking account(Q4: 6). There ais share for men and a share for women from what is left by parents and those net arrelsated, whether, the property be small or large - a legal share(Q4:A 7n)d. when the relatives and the orphans andA lMasâkin (the poor) are present at the time of division,e g tihvem out of the property, and speak to them words odf nkeinss and justice. (Q4: 8) And let those (executors and guardians) have the saemare inf their minds as they would have for their own, if they had left weak sopfrfing behind. So let them fear Allâh and speak right words. (Q4: 9). Verily, th owseho unjustly eat up the property of orphans, they eat up only a fire inhtoe irt bellies, and they will be burnt in the blazing Fire! (Q4: 10). Allâh comma ndyosu as regards your children's (inheritance); to the male, a portionu ael qto that of two females; if (there are) only daughters, two or more, their es hiasr two thirds of the inheritance; if only one, her share is half. Fore pnats, a sixth share of inheritance to each if the deceased left children; if no cheinld,r and the parents are the (only) heirs, the mother has a third; if the deceased b lreoftthers or (sisters), the mother has a sixth. (The distribution in all cases ise) ra tfht e payment of legacies he may have bequeathed or debts. You know not which omf ,t hwehether your parents or your children, are nearest to you in benefit, (eth feixsed shares) are ordained by Allâh. And Allâh is Ever AllKnower, All Wise (Q4: 11). In that which your wives leave, your share is a half if they have no chbiludt; if they leave a child, you get a fourth of that which they leave after payment ogf alceies that they may have bequeathed or debts. In that which you leave, t(hyeoiurr wives) share is a fourth if you leave no child; but if you leave a child,e yth get an eighth of that which you leave after payment of legacies that you may haevqeu ebathed or debts. If the man or woman whose inheritance is in question has nlefitt her ascendants nor descendants, but has left a brother or a sistcehr, oenae of the two gets a sixth; but if more than two, they share in a third; after paeynmt of legacies he (or she) may 64 have bequeathed or debts, so that no loss is c a(utos eadnyone). This is a Commandment from Allâh; and Allâh is Ever AllKnowgi,n Most Forbearing (Q4: 12). These are the limits (set by) Allâh (or ordmaeinnts as regards laws of inheritance), and whosoever obeys Allâh and His sMenegser (Muhammad SAW) will be admitted to Gardens under which rivers f lo(iwn Paradise), to abide therein, and that will be the great success(Q4.: A1n3d) whosoever disobeys Allâh and His Messenger (Muhammad SAW), and transgreHsise lsim its, He will cast him into the Fire, to abide therein; and he shavll eh a disgraceful torment (Q4: 14). They ask you for a legal verdict. Say: "Allâh ditrse c(thus) abouAt lKalâlah (those who leave neither descendants nor ascendants rass). hIfe it is a man that dies, leaving a sister, but no child, she shall have hthaelf inheritance. If (such a deceased was) a woman, who left no child, her bero ttahkes her inheritance. If there are two sisters, they shall have two-thirfd sth oe inheritance; if there are brothers and sisters, the male will have twices thaer e of the female. (Thus) does Allâh makes clear to you (His Law) lest you go ays.t rAnd Allâh is the All- Knower of everything" (Q4:176) O you who believe! Take care of your ownselveos, r[idghteous deeds, fear Allâh much (abstain from all kinds of sins and evil de wedhsich He has forbidden) and love Allâh much (perform all kinds of good deedsi cwhh He has ordained)]. If you follow the right guidance and enjoin what igsh rti (Islâmic Monotheism and all that Islâm orders one to do) and forbid wha wt risong (polytheism, disbelief and all that Islâm has forbidden) no hurt can cotom yeo u from those who are in error. The return of you all is to Allâh, then Heil l winform you about (all) that which you used to do. (Q 5:105).O you who belieWveh!e n death approaches any of you, and you make a bequest, then take them toensyti of two just men of your own folk or two others from outside, if you arev teralling through the land and the calamity of death befalls you. Detain them bothe ra Afts-Salâ t(the prayer), (then) if you are in doubt (about their truthfulness), tlehtem both swear by Allâh (saying): "We wish not for any worldly gain in th, iseven though he (the beneficiary) be our near relative. We shall note h Tidestimony of Allâh, for then indeed we should be of the sinful." (Q5: 106).h Ief nt it gets known that these two had been guilty of sin, let two others stand foinrt ht heir places, nearest in kin from among those who claim a lawful right. Let th esmwear by Allâh (saying): "We affirm that our testimony is truer than tha tb ofth of them, and that we have not trespassed (the truth), for then indeed we lsdh boeu of the wrong doers (Q5: 107)." That should make it closer (to the fact)t tthaeir testimony would be in its true nature and shape (and thus accepted), ort heelsye w ould fear that (other) oaths would be admitted after their oaths. And feAallrâh and listen (with obedience to Him). And Allâh guides not the peowplheo are Al-Fâsiqûn (the rebellious and disobedient) (Q5: 108). Some salient points from the Qurā’ nic injunctions on inheritance and will  The father’s share is one sixth if the decease da hsaosn (1/6 only) 65  The father’s share is one sixth and whatever resm oafin the estate after the inheriting members of those heirs whose shares of inheritahnacve been fixed by the Shī’arh (dhawil-furūd) i.e. 1/6 plus  The father receives more than 1/6 if the deceasaesd n heither son nor daughters nor any grandchildren. He is entitled to the residue (Ai.seb. at nasabiyya)h.  Paternal grandfather inherits only in the absenf cthee o father and grandfather.  Akhyaf i brother inherits⅓ in the estate of the mother. If there is only oAnkeh yāfi, he inherits 1/6 in the estate of the mother.  If there is a son or grandson, Aalkl hyāfi inherit nothing. The same rules applyA tkoh yafi sisters.  The husband inherit ½ the estate if the deceasesd nheaither children nor any grandchildren.  The husband inherit ¼ if the deceased has chil(dorfe tnh e present or the former husband)  The wife inherits ¼ if the deceased husband hatsh enre cihildren nor grandchildren. If he has more than one wife, all of them would shareq ¼ua elly.  The wife inherits 1/8 if the deceased husband haildsr cen or grandchildren.  The legitimate children may be from the survivinigfe w or another wife.  If he has more than one wife, all of them will picaiprtate equally only in 1/8 of the estate of the deceased.  A wife in iddah will inherit in the estate of heru shband if she has not completed her iddah period when her husband dies.  Divorce at the request of the wife (khul) prevesnutsc h a wife from inheriting in the estate of her husband.  The mother inherits 1/6 in the estate if the deecde acshild has children.  The mother’s share i⅓s of the balance remaining after deducting the wsi fseh’are or the husband’s share provided the deceased does no ta h cahviled.  The mother’s share i⅓s of the whole estate if the deceased has neithieldrr ecnh nor a husband or wife.  A daughter inherits ½ in the estate if the dece ahsaesd no sons. If there are two daughters or more, they share two thirds (2/3) of the esitfa tthee deceased does not have sons.  A daughter receives (½) half the share of a sotnh eif deceased has a son. Both the daughter and the son will share the residue in wthaisy no matter the number of the daughters and sons. Each daughter will receive t hea lsf hare of a son.  A granddaughter receives ½ the estate if the decde daoses not have children but has one granddaughter.  Granddaughter shares 2/3 in the estate equahllye idf et ceased does not have a child.  If the deceased has a daughter and one or mored dgaruagnhters, they all share one sixth (1/6) equally among themselves.  If the deceased has a son or two or more daug hgterarsn,ddaughters will not share anything. 66  Grandmothers closer to the deceased will displhaocsee t farther away and they share 1/6 of the estate of the deceased equally if the decde daoses not have mother. If the deceased has mother, the grandmothers do not inherit.  Debts and wills must be settled before the distiroibnu of the estate of the deceased to the heirs with fixed shares. Nobody should be depriovfe hdi s share.  The property of the orphans should be given to t hwehmen they reach the age of maturity. Their property through inheritance should not ben scuomed wrongly or squandered wastefully.  If the guardian of the property is poor, he cane tawkhat is reasonable from the property by a way of his wages or salary for managing thoep eprty. When the property is to be released to them, there should be some witness tehse tdoelivery of trust to serve as a shield in case there is perjury.  Islamic laws of inheritance are the limits of Al lwah ich must be taken seriously. There is humiliating punishment for anyone who transgrestshes limit of Allah as regards the Islamic law of inheritance.  It is part of the Shaī‘rah to write a will. However, it should not be m otrhean ⅓ of the property. Will in Islam should not be written to pdrieve the heirs their rights or favour some heirs at the expense of the others. In ftasc rtu, lies must be observed. Factors which deprive heirs of inheritance 1. A sane heir who kills hism ūrith (the person whose estate is to be inherited sh nooutl d inherit or be given anything. 2. A non-Muslim heir cannot inherit ma ūrth that is a Muslim. The property of the Muslim goes to the Islamic state Treasury (if there is) aonr ythe Muslim community in the area. 3. A male or a female who renounces Islam will be rinitehde by his or her heirs. 4. A slave can neither inherit his master nor be iintehde.r However, if he is set free, the person 5. who sets him free is entitled to inherit him. 6. A prophet could neither inherit nor be inherited. 7. A widow should not be deprived of inheritance inr heusband’s estate if she marries again. 8. However, a divorced wife cannot inherit her formheurs band. 9. The infant and the unborn child in its mother’s wbo wmill inherit in exactly the same way as adults. Some heirs are deprived of inheritanecea ubse of the presence of others. 10. Akhyāfi brothers and sisters who are children of one mr oathned different fathers could not inherit if the deceased has a son or a dau gohr tae rgrandchildren or father. 11. Grandchildren could not inherit the deceased if tdheec eased has a son. Great grandchildren could not inherit if there is a sorn g orandson. Granddaughter could not inherit the deceased if he has two daughters. 12. Paternal and maternal grandmothers could not itn htheeri deceased if he or she has mother or father. 13. Brothers and sisters could not inherit if the desceeda has children or grandchildren or a father or grandfather. 67 14. Paternal grandmother and maternal grandmother cnooutl dinherit if the deceased has father. 15. Brother’s son could not inherit in the presenceth oef deceased’s father or brother. 16. Paternal uncle could not inherit in the presenc teh eo fdeceased’s father or grandfather or great grandfather or son or grandson or brothebr ootrh er’s son. 17. An illegitimate child will not inherit the deceas efadther but inherit the mother. 18. The relatives of the husband do not inherit ine tshtea te of his wife and vice versa. 19. Adopted children do not inherit in the estate oefi rt hfoster parents. Modern Reforms Concerning Inheritance and the Islamic Perspective Wasiyyah (will) The reform introduced to wasiyyah by the moderwniasst that an heir who is entitled to a fixed share of the inheritance can also be given a bet.q Suuecsh a bequest is valid and effective. In fact, they consider the consent of the other heirs ivrraenlet i.e. their consents are not needed before such a bequest can be effected. This is not Shaī‘rah compliant because Allah has fixed for each heisir or her share. The moment a person’s life come to an end, he is nromt iptte d to dispose off his estate according to his wishes and desires. His ownership of the prtoy pceerases with his death. The real owner i.e. Allah takes control of the property. The heirs gairvee n their divinely-fixed shares as stated in the Qur’ān. It should be noted that the Prophet said: “Andyyb owho deprives an heir his right by giving other heirs more than their dues would bnei edde al-Jannah. Such a person is destined for the chastisement of the Fire i.e. Hell”. It shobueld noted that extension of one’s transgression to even the period after death by giving an heir mthoaren his or due througwh asiyyah in addition to his divinely-fixed shares is not a transgres soifo snmall measure. The sin is vile in the extreme. The person has destroyed his life of the hereabfyte dr efrauding the divinely appointed heirs of their dues. It should be borne in mind if a percsomn mits this type of sin, there is no opportunity of repenting or correcting the injustice done ext cife tphe person given such undue rights returns them to their rightful owner. Otherwise, hell-fiirse t he destination of such a deceased person. The reformers also introduced obligatory beesqt uin favour of the orphan and grandchildren who should not be given inheritance if a deceasaesd a h son. An example of the so-called reforms is contained in the Egyptian Law of Request, 19T4h6e. Syrian Law of Personal status 1953 also contains their reforms. It says: The grandchildsrheanl l not be entitled to any obligatory bequest if they otherwise inherited from their father’s eanscdants nor if any of them left a legacy or a gift which is equal to an amount of that of the obligrya tboequest. Where a man has less than the due obligatory bequest, the balance shall be made up”. In the Tunisian code, only the first geneorna toi f grandchildren, male or female is considered. In Moroccan code (1958), a third of his estateo ims pculsorily earmarked for the grandchildren of the deceased whose first son had died before hhime .s Thare of the grandchildren should be equal to the share their father would have received ifd iheed after the deceased provided it is within one third of the estate. According to the Islamic law of inheritancberi efly discussed at the beginning, nearer relations exclude remote ones. Therefore, if a adseecde has a son who is nearer to the deceased, his grandson who is a remote relation cannot int.h Beorith the orphan and grandchildren could be 68 taken care of from one-third of the estate of tehcee dased as stated in the Sunnah and theā nQ ur’ as earlier quoted. It should be noted carefully that if a chdilide s during the life-time of his or her parentsi sh e considered to be non-existent in relation to thaer es hwhich he would have acquired in his parent’s estate if he had been alive on the ocnc aosfi otheir death. The deceased child would not be considered at all. The other surviving childwreinll inherit all the estate including the share that would have been given to the predeceased icf hhiled were to be alive. Therefore, it is not right to transfer the share of a son who had deiefdo rbe the demise of his parents to his children. The modernist in the Anglo-Mohammad law ind iaIn allowed widows who were owned the mahr to retain possession of their husband’s es tWathee.n a husband dies, his burial expenses must be taken first from the estate. Care musat kben t to avoid waste and unnecessary expenses. Expenses such as the bricks to be used in the ,g trhaev etransport cost, the payment of gtheā sil (the washer) and the clothe are taken from thet ee sotfa the deceased. It is after the provision of this that the creditors including the wife who woawse d mahr are paid their dues. After these two, the wasiyyah is discharged from one third the value of the rienminag estate. After these three heads have been taken care of, the remaeinsitnagte is shared among the heirs based on the divinely fixed shares as stated in the Qānu.r ’It is seen that it is not right for a wife who mseahr was not paid to retain her husband’s estate. Tabanni (adoption) (Q33:4-5) The modernists also allow what Islam prohibits avincde -versa. Adopted child does not have the status of a natural son or daughter i.e. he orc sahnen ot inherit the person who adopted him and vice versa in Islam. As far as modernists are cronnecde adopted child can inherit the person who adopts him/her and vice-versa because they havea tedle them to the status of a natural son or daughter. An example is contained in the Turkisdhe c. oThe reformers twisted the Sīh‘ ahr in order to accommodate their wishes and desires. Conclusion It is clear that the reforms are in line with thies hwes and desires of the reformers. Their reforms are nothing but deviations from the Sīh‘aahr as contained in the Quānr’ and the sunnah of the Prophet. We should stay clear of deviations soo at sb en among the rebels (Q5: 50), the wrong- doers (Q5: 48) and the unbelievers (Q5: 47). Thaer ī‘Sah as contained in the Quānr’ and the Sunnah suits every age and time. It does not a ah alivmeited application. It is applicable to all time. The lapse of time cannot affect the Sī‘haahr. The Shaīr‘ah can never be obsolete. In fact, its principles and basic theories are valid till etteyr.n Ti hey do not need any changes before they match all eras. Unprecedented new cases are accdoamtemdo under the Shīa‘arh. Therefore, Muslims must believe in all aspects of Sīh‘aahr without an exception if they want to be comep let Muslims. Because of this prohibition in some coiuenst,r some able men have resorted to extra marital relationships which are prohibited in Is.la m 69 Summary In this lecture, we have learnt that Allah takesn trcol of the property of a person after his death. The divinely-fixed shares of the heirs w setraeted clearly in this course. The three heads of expenditure i.e. burial expenses, paymofe dnet bts and will were explained fully. We also discussed factors which deprive heirs of iintahnecre. Such factors include adoption, killing the person whose estate is to be inheriatend divorce. The modernists introduced obligatory bequest in favour of the orphan and dgcrahnildren when the children are in existence. This is not acceptable in Islamic lafw in oheritance. In Islam, nearer relations exclude remote one s. Post-Test 1. What is‘ ilmu farā’iḥ? 2. The consequence of changing the Sī‘ahha rlaws of inheritance or tampering with them is ____ on the Day of Reckoning. 3. Mention 8 of the things that must be avoided wherinti nwg one’s will 4. List and explain the three heads of expenditureo rbee tfhe distribution of the estate. 5. Mention 5 heirs with their divinely –fixed sharefs t hoe inheritance in Islam. 6. What are the factors that can deprive heirs ofr tdhueei s? 7. State the views of modern reformers concerningn deilvyi-fixed shares of the heirs, adopted child and will. Give the Islamic perspveec toi f the above-mentioned areas. References Vermin, B.R. (1978)M. uhammedan lawi n( India and Pakista)n. Allahabad: Delhi law house. Khan, S. A. (2005) How to calculate inheritancew. NDe lhi: Goodword Books Yusuf al-Qaradawi, 1989. The lawful and the protheidb iin Islam. Lagos: At tawheed Publishing Company. Majlisul Ulamai of South Africa (ndT) he Book of Inheritanc. ePort Elizabeth: South Africa. Ali, Shaheen Sardar (199G9)e nder and Human Rights in Islam and InternatioLnaawl : Equal Before Allah, Unequal Before Ma Tn?he Hague: Kluwer Moors, Annelies (1995W) omen, Property and Islam: Palestinian Experien1c9e2,0 -1990 New York: Cambridge University Press Amawi, Abla (1996) 'Women and Property Rights ilna mIs' in S. SabbaghA,r ab Women, Between Defiance and Restra iNnte.w York: Olive Branch Press Feillard, Andree (1997) 'Indonesia's Emerging Mmus Flieminism: Women Leaders on Equality, Inheritance and Other Gender Issues' S4t(u1d) ia Islamika 70 LECTURE TEN Siyāsah Shar‘iyyah Introduction Sharī‘ah law is divided into two main categoriIebsā dat (worship) andm u‘āmalat (laws that deal with human interactions). These two divisions coinn otanly the general principles. You will learn the details left to the discretion of the commu n(iUtymmah) throughs iyāsah shar‘iyyah (the government’s authority to legislate). You will a llseoarn the extent of the government’s power to legislate in this course. Objectives At the end of this lecture, you should be able to: 1. define and explains iyāsah shar‘iyyah. 2. discuss the misuse of this concept by the refor.m ers 3. explain Q4: 59 in relation to the government’s aouritthy to legislate. Pre-Test 1. Explain siyāsah shar‘iyyah and its application 2. Discuss the misuse of the concepst ioyfā sah shar‘iyyah. 3. The reformers believed that they were acting ien wlinith Q4:59. Discuss. CONTENT Literally, siyāsah refers to politicsS. har‘iyyah is derived from the word Shīa‘arh and it means something that concerns the Sīh‘aahr, the Islamic law .Shar‘iyyah is used as an adjective to qualify siyāsah. Both mean the legislative right or the governm’se natuthority to legislate. Sharī‘ah law is divided into two main sections: the alel ginjunctions that concern the acts of worship (Ibādah) and the rules and laws that deal with human inctieorna. The acts that are under the first division include ritual purification, pyrears, zakah, fasting, pilgrimage to Makkah etc. The second division has the following acts: finanl ctriansactions, law of marriage, divorce, penal punishments, foods and drinks, law of inhaenrciet etc. It must be mentioned that there are rules raengdulations laid down in the Quānr’ on these two divisions. These rules must be adhered tot lsyt.r i cThey are made to protect religion, life, lineage, mind and property. The government’s poiws etro be exercised on the basis of the general principles of the law and with the inten toiof protecting the aim of these principles. 71 It must also be mentioned that the right athned wrong which Muslims are commanded to enjoin and forbid respectively are in general te rinm tshe Qurā’ n and the Sunnah. Their details cannot be known. It is left to the ruler by impltiicoan, the government to exercise his legislative power to enforce the right and prohibit the wroInt gi.s not possible to find in the two sources detailed laws guiding every aspect of human life. It is only the general principles that theo twcontain. The details are left to the discretiof n o the community (Ummah). The ruler passes legisla otionn some other areas on which express injunctions are not found. However, the legisla tmiounst not go against the general principles laid down by the two original sources i.e the Qāunr ’and the Sunnah. In fact, rulers are allowed to legislate in asmuch the legislation does not codnicttr athe general principles. If it does not contradict the Quār’n and Hadith, it is callesdi yāsah shar‘iyyah i.e. the legislative right or the government authority to legislate. Ibn Qayim surptepdo this view when he says: “Any means which establishes justice and prevents injustic le gisitimate siyāsah shar‘iyyah. If it fulfils this condition, it attains legitimacy in relatioon the Qurā’ nic injunction of enjoining what is right and forbidding what is wrong (Q3:103-104,1.1 I0n) addition, the order of the Quānr’ to obey Allah, His messenger and those in authoristyti fjiues the discretionary authority. This is also in relation tot a‘zir. This technique osf iyāsah shar‘iyyah must be used with sincerity and piety particul athrley modern reformers. Some people indulge in this tieqcuhen to change the Islamic laws to suit their aims. Some rulers in some Islamic countries andl iMmu csountries have been formulating codes of laws allowing the prohibited acts such as thnes cuomption of alcoholic drinks and adultery. As an attempt to escape the applicationh eo fs trict Shaī‘rah principles, they introduced their so called reforms. This was done by directing socomuer ts in some Muslim states not to entertain any case on some Shī‘arh principles which they thought were obsolete oanudtdated. Instead of exercising the power given to them within the lism iimt posed by the sovereignty of Allah, they exceed the limits by allowing what is forbidden avnicde versa. By this, they transgress the limits. Allah warns them: “Transgress them not. Fwohroso transgresses Allah’s limits, such are wrong doers” (Q2: 229). The reformers also belie tvheadt they were acting in line with the Q4:59 which says: “O you who believe! Obey Allah and HMise ssenger and those from among yourselves who hold authority; and if there is adnisyp ute between you concerning any matter, refer it to Allah and His Messenger, if you reablleyl ieve in Allah and the Last Day. This is the best course (for you) and also better in the end”. The authority given to the rulers must ber ceixsed in line with the Quār’n and the Sunnah. Rulers should not be obeyed if they go contraryt hteo Qur’ān and the Sunnah because the Prophet is reported to have said that: “No obedei einsc to be given in the case of an act of disobedience to Allah”; “There is no obedience nin aact of sin”; “Obedience is obligatory in good and in virtue”; If a mutilated slave is madoeu ry leader and leads you in accordance with Allah’s Book, listen to him and obey him”; Hearinagn d obeying are the duty of every Muslim, both regarding what he likes and what he dislikaess l,o ng as he is not commanded to perform an act of disobedience to Allah, in which case he m nuesitther hear nor obey. The proponents of this technique are the Etiagny pscholars who advocated for the modernization of Egypt and Islam. People respecthteedir views simply because of their erudition. They took the advantage of this to maidsl emany Muslims. Legal sovereignty is the exclusive and absolute prerogative of Allah ande n coann share in it. The messenger is the only authoritative representative of the political aengda ll sovereignty of Allah on earth. As a natural 72 consequence of the representation, he is thereefnotrietl ed to the obedience of those who acknowledge Allah as their sovereign. Allah’s dieocnis and His Messenger’s directives must be obeyed and accepted without any reservation whvaetsr.o e As a corollary to this, obedience to all orsth pearticularly those in authority is subject toe th obedience to the two. “It is not fitting for a ibeevler, man or woman, when any matter has been decided by Allah and His Messenger, to claim anyy ins atheir affair, and whoso disobeys Allah and His Messenger, he indeed goes astray in erarnoirf emst” Q33: 36. All these injunctions indicate that nobodys haany power over and above the verdict of the Qur’ān and the Sunnah. The legislature, the executnivde t hae judiciary can only pas law, issue orders and decide legal matters respectively ien wlinith the Qurā’n and the Sunnah. In the same vein, all the three arms of government should neojetc rt any decision contained in the two. The obedience to the Messenger is not obedience ino witns right. It is a consequence of Divine Command that a believer can obey Allah only by oinbge yHis Messengers because he is the only authentic and reliable source through which thei nDei vMessage is received. Q 4: 80. “Whoever disobeys me disobeys Allah and whoever obeys thses eMneger obeys Allah”. Men in authority also refer to the governm. eOnbt edience to them is subject to both the Qur’ān and the Sunnah. The government is obeyed ifn ifto croms to the spirit of the Shīa‘arh. Ul- amr refers to all those persons who are in any watyh ea t helm of affairs of people such as religious scholars, thinkers, political leadersm, aindistrators, judges of law courts, tribal chiefs and the like. If there is a dispute between thee grnomv ent and the people or between people, it should be referred to Allah and His Messengert oi. eb.e settled in line with the Quārn’ and the Sunnah. However, they use their own good senshee i nli gtht of the two to make a decision if they could not find directly any guidance from thweo . Men in authority are free to make laws on mattwehrse re the Qurā’n and the Sunnah are silent on i.e. where there are no clear injunct.i oEnvsen then, they legislate in the light of the general principles contained in the Qāunr ’and the Sunnah (Q. 26: 15). Therefore, all afc tsh eo rulers are legitimate in as much they are withien ftrhamework of Shaī‘rah and compatible with its judicial decisions and spirit. Summary Siyāsah Shar‘iyyah is the government’s authority to legislate parltaicrluy where Shaī‘rah is silent. Shaīr‘ah which covers Iābdat and muā‘malat gives only the general principles. The details are left to the discretion of the commu.n Hityowever, the people in government are free to legislate on matters that there are no cleaurn icntjions. The legislation must not go against the general principles laid down in the Qāunr ’and the sunnah. The reformers took the opportunity of this concept to change the princsip olef Shaīr‘ah to suit their desires. Post-Test 1. Define siyāsah shar‘iyyah and relate it to Q4:59. 2. Discuss the concept osfi yāsah shar‘iyyah and its misuse by the modern reformers. 3. How cans iyāsah shar‘iyyah be used that will not go against the general piprliensc. 73 References Vermin, B.R. (1978).M uhammedan law (in India and Pakista. nA)llahabad. Delhi law house. Yusuf al-Qaradawi. (1989). The lawful and the pbroitheid in Islam. Lagos: At tawheed Publishing Company. Doi, A.I. (1984).S harī‘ah (The Islamic Law). London: Ta Ha Publish.e rs 74 LECTURE ELEVEN The Three Major Categories of Crimes in Islamic Law Introduction In this lecture, you will learn the three main cgaotreies of crimes in Islam. They aḥrea dd, al- qiḥāḥ and al-ta‘zīr. The Islamic penal system recognises these tkhinredes . I will discuss the first two: ḥadd and al-qiḥāḥ so as to form a good background for the next lec it.uer.a l-ta‘zīr. Objectives At the end of this course, you should be able to: 1. mention the three major categories of crimes ianm Isicl law 2. list the major offences oḥf add crimes with their punishments. 3. explain the difference between the law qoiḥf āḥ (retaliation) during the Pre-Islamic period and the Islamic era. Pre-Test 1. List the three categories of crim e s. 2. Mention the four major offences that are regda rdaes ḥadd crimes and state the punishments attached to them. 3. Differentiate between the law oqfiḥ āḥ during the Pre-Islamic period and the Islamic period. CONTENT In Islamic law, there are three major categorie sc roimf es. Some of them have penalties prescribed for them in fixed terms in the Qāunr ’and/or the Sunnah while others are left to the discretion of the judges. The three categories of crimes are; i. ḥadd (The most serious crimes) ii. Al – qiḥāḥ (Retaliation) iii. Al –ta‘zīr (The discretionary punishment). The Islamic penal system recognises these thrnedes koif punishment. We will discuss the first two briefly so as to form a good backgrounodr tfhe target of this chapter i.ael.- ta‘zīr. 75 add Crimes and their Punishments Islamic criminal law recognises four major offen ctoe sbe ḥadd crimes. They are theft, armed robbery, illicit sexual relations and slanderouscu ascation of unchastity. Each of these offences has a penalty prescribed in fixed terms in the āQnu ro’ r the Sunnah. The punishments are determined in the Quārn’ or the Sunnah. They can neither be lightenedm naodr e heavier. The offences are not pardonable either by the victim th oef offence, by the government, or by the judge. The punishments are the limits of Allah cwhh ni o one should transgress as contained in the Qur’ān. Some jurists added drinking of alcohol and aapsoys to the offences ohfu dūd while others do not recognise them as such becausep tuhneisirh ments are not defined in the Qānu.r ’ Al–sariqah (theft) is one of the offences hofu dūd. Its punishment is prescribed and fixed in the Qur’ānic verse (Q5: 38). It states; “As for thievest,h b mo ale and female, cut off their hands. It is the recompense of their own deeds, an exermy pluanishment from Allah…” The Prophet ordered the amputation of thief’s hand during hifiest iml e. Before this punishment is inflicted, the value of the stolen property must at least obret hw or should exceed a minimum fixed by the law. This minimum value may be determined by thwem la kers in each country. This is because there is no consensus among the jurists as regthaerd ms inimum value. The following amounts: ten dirhams, a fourth of a dinar, three dirhams oande-quarter of a dinar are some of the amounts fixed by different jurists. The hand sho bueld amputated from the wrist. Before this punishment is carried out, the stolen goods muvset hbaeen properly kept in a proper place called hirz (the custody of the goods or the storage placen). Q(Iubdamah, 1985). Al – ḥirābah is armed robbery. It is also calleadl – sariqah al –kubr a(the great theft) and qat’ al – ḥarīq (high –way robbery). In an ordinary theft, the intagk of someone else’s property by stealth iss ariqah while al – ḥirābah refers to the taking of someone else’s propert yfo brcye or at gun point. As regardḥs irābah, the culprit is liable to punishment even without uaclly having brought the intended crime to completion. ifi. ehe is unable to complete the operation of armed robbery. (Abdul-Rahmon, 1982) The punishment for armed robbery is state dt hien Qurā’ n (Q5: 33 – 34). “The only recompense for those who make war upon God andM Hesiss enger and strive after corruption in the land will be that they will be killed, or cruficeid, or have their hands and feet cut off on alternate sides, or will be expelled from the la nSdu.ch will be their recompense in this world and in the hereafter. Theirs will be an awful puhnmisent, except those who repent before you overpower them. For know that God is forgiving, cmifeurl”. The recompense for an evil deed is a similar evil (40: 11 – 40; Q 2: 194). Any of tfhoeu r punishments for the crime ḥofi rābah i.e. death, crucifixion, cutting off the hands and feoent the opposite sides and banishment (imprisonment for life) can be inflicted on the pcruitl. Al–zinā means illicit sexual relations whether they aren ed ovoluntarily or by force. All the sacred laws forbid it. It refers to both adulternyd afornication. Hence, both are forbidden. The punishment forA l–zinā is contained in the Quārn’ where Allah says: “The committers Aolf– zinā, male and female, flog each of them with hundrteridp ess, and do not let pity for the two withhold you from obedience to God, if you belieinve G od and the Day of Judgement. And let a party of believers witness their punishment” (Q2)4. : Some jurists were of the view that a marrmieadl e or female should be given one hundred lashes and stoned to death, while an unmarried mora flemale should be given one hundred lashes and then banished for one year. It mumste bneti oned that not all of them are in agreement with the issue of stoning (Ibn Qudamah, 1985; Snih, n1u323; Doi, 1984). Those who disagreed 76 considered the punishment to be for Jews. If Je wlaiwshs are in their pristine forms, they are Divine, and hence from Allah in the same way whithe tIslamic laws. It can be concluded that the source of both laws is Allah. Therefore, m arunlyes in both of them are similar. This is an evidence of the divine nature of Islamic law whicsh b ased entirely on morality. Any moral transgression is seriously condemned by meansv oefr es epunishments. Al – Qadh frefers to false accusations i.e. an unproved atliloeng that a person has committed Zinā. The punishment for it is eighty stripes as st ainte tdhe Qurā’ n (Q24: 4-5). “And those who accuse honourable women but do not bring four wssitense, flog them with eighty stripes and never again accept their testimony. They are in deeveild-doers, except those who afterwards repent and make amends”. Once the crime is proivtheedr eby testimony or by confession, the guilty person should not go unpunished. Of all hthaed d punishments stated in the Qāunr,’ the punishment for a married person who commits adyu litse rnot stated in the Quārn’ but in the Sunnah. However, the punishment for unmarrieda itse dst to be 100 lashes. Deterrence looks to the future. Retribution isu sat ijfication for punishment which looks to the past. Expiation is to clear the person’s actc owuinth society and God. The punishment prescribed for theft can halt all types of theftn. dUer the Islamic law the murderer may be punished by the death penalty or by paying bloodn-emyo. The victim’s relatives can make their choice. If they like, the offender may be pardonaeltdo gether. It is also an act of reforming offenders (the criminal) The punishment for Alcohol– drinking is notrti cstly defined in the words of the Quārn’ or the sunnah. Therefore, it is not included in thfee nocfes of huduud.K hamr is defined as any drink which makes a person drunk. It is prohibiitne dIs lam. The drinking of alcoholic beverages (Shurbu al – Kham)r is prohibited in both the Quārn’ and the Hadith. The punishment for it is not in the Qurā’n but it was fixed by the Prophet. However, theraes wno consensus as regards the number of lashes a person who drinks alcohboelvice rages should be given. This is contrary to the position of all the four schools of Islamlaicw who believed that the punishment for drinking is aḥ add punishment. According to the āSfih, Zāhiri and Zaydi schools, its punishment is forty lashes (Ibn Qudamah, 1985; Ibn Hazm). S obmeleieved that the punishment for drinking should be parallel with the punishment for slan(dqeard hf) i.e. eighty lashes. This was based on the opinion of Abdul al-Rahman b. Awf and some or tchoempanions. The Prophet’s companions held various views concerning the punishment foinrk dinrg. One point that needs to be stressed is that the drinking of alcohol is a serious sin thho ungo punishment is mentioned in the Qāunr f’or this sin. Riddah or Irtidād technically refers to turning back from Islam too tahner religion or unbelief. A person who abandons Islam for anotheeligr iron is calledm urtadd (apostate). Some jurists believed that death penalty is the punisnhtm foer apostasy but this is not stated in the Qur’ān. The only punishment in the Qāunr’ is that the apostate will be punished in the Hafeterer (Q16: 106; Q2: 217; Q5: 54). If the death penaslt yfo ir apostasy, it will contradict a Qāunr’ic verse which states that there is no compulsione ling ior n (Q 2: 256). Some jurists cited the Hadith transmittedB buyk hari and others to support the death penalty for an apostate. The life of a Muslim may be taokennly in three cases i.e. in the case of married adulterer, one who has killed a human being, aned wohno forsakes his religion and separates himself from his communitya (l – murtadd an īdnihi and al - mufarriqu lil jama‘ah). If a person abandons Islam and then fights God and His Pro pith eist , then that he can be killed. If his 77 apostasy does not accompanying fighting against aGnodd His Prophet, he should not be killed because there is no force in religion. The Propnheevet r put an apostate to death. Qiā (retaliation) Qiā (retaliation) is inflicting on a culprit an inju reyxactly equal to the injury he inflicted on his victim. However, this was not the case befosrlea mI . The pre-Islamic Arabs did not have friendly cooperation among different tribes. Thcisc uorred only among the members of the same tribe. Vengeance on trifling issues was rampant nagm odifferent tribes. Cases of revenge between two or more tribes lasted for several y. eAa rssmall dispute could turn into an actual war between tribes. For instance, the beating of a-c sahmeel belonged to a woman of Banu Bakr (a tribe) by a member of Banu Taghlib led to a warw beetn the two tribes and lasted for forty years. During the period, revenge was not onlye nta akgainst the culprit (e.g. murderer) but also it was taken against his fellow – tribesmen. (Ibund Qamah, 1985; Abdur Rahim, 1994). When they accepted blood – monedyi y(yah), it varied according to the position of the cuitl pi.re. the murderer and his tribe. The blood– money of somibee str was half that of other tribes. They considered the difference in strength, status arnedst ipge between one tribe and another before they decided on the vengeance or the blood-moneeyy wthould take i.e. the higher the status in the society, the higher the blood-money or reve nIng eth. e same vein the lower the status, the lower the revenge. To correct this difference, the law qoifḥ āḥ was introduced by Islam. In Islam if a person kills another person, the life of the murderer aikse tn for the life of the murdered person. The lives of the members of the culprit’s family wounldo t be taken in addition to his life when revenging. A fixed amount of money is to be exda cates Islamic law does not differentiate the blood-money to be paid by the culprit from one etr itbo another or according to the victim’s position in his tribe. The pre-Islamic custom ofv ernege was replaced with Islamic law of qiḥāḥ. This is to show that all men are equal in theh ts oigf God.Q iḥāḥ is the punishment for homicide. However, if the relatives of the victimo dnot demandq iḥāḥ, diyyah which is the payment of blood-money is demanded from the cu. lpTrhitese concern the homicide that is deliberate. As regards accidental homicide i.e .h tohmicide done by a mistake, it is ondliy yah. The dyiyah is freeing a believing slave and payment of comspaetionn to the family of the deceased. The culprit may also be allowed to goot– s fcree (Q4: 92, Q2: 178–179). When carrying outq iḥāḥ, it should be done in the manner that causese tahset lpossible painQ. iḥāḥ is inflicted upon a group of people for killing o nperson. Summary The major categories of crimes in Islam aḥraed d, qṣi āṣ and ta‘zīr. Ḥadd offences include theft, armed robbery, illicit sexual relations asnlda nderous accusation of unchastity. Their punishments are determined in the Qānu ra’ nd the Sunnah. The offences are not pardonable either by the victim of the offence, by the goveernnmt or by the judge. The punishments are the limits of Allah. We mentioned other offencehsa tt are regarded aḥsa dd offences by some Sharī‘ah scholars. We also examinqeidṣ āṣ (Retaliation) during the pre-Islamic period aned th Islamic period. Law oqf iṣāṣ during the pre-Islamic period was full of injuset.i cThe injustice and the differences in its application were corerde cbty Islam . 78 Post-Test 1. List the three major categories of crimes in Islca mlawi . 2. Islamic criminal law recognises four major offen cteos be ḥadd crimes. Discuss them with their punishments. 3. How did the Shaī‘rah correct the differences between the lawq ioḥf āḥ during the pre- Islamic period and the Islamic period? References Ibn Qudamah, M. (1985A). l-Mughni. Volume 3 .Beirut: Dar-al-Fikr. Ibn Hazm n.d.A l-Muhalla VOL.X.I Beirut: Dar al-Afaqil Jadidah volume. Kasani. (n.d).B ada ‘I as-sana’ fi tartibush-shara‘. Volume. C7airo: Sharikah al-Matbu atil Islamiyyah. Sihnun, (1323). A.H.A l-Mudawwanah al-kubra li Imam Malik b. Anas vovl. Bi eirut: Dar sa’adah Vermin, B.R. (1978).M uhammedan law (in India and Pakista. nA)llahabad. Delhi law house. Yusuf al-Qaradawi. (1989)T. he lawful and the prohibited in Isla. mLagos: At tawheed Publishing Company. Doi, A.I. (1984).S harī‘ah (The Islamic Law). London: Ta Ha Publishers. Abdul-Rahmon, M.O. (1982P) erspectives in Islamic law and Jurisprude.n cIbeadan: NAMLAS Ruud P. and Maarten B. (2003Is)l amic Criminal Law in Nigeri.a Ibadan: Spectrum Books Limited. Abdullah, Y. (1998)S haria in Africa. Ijebu-Ode: Shebiotimo Publications Abdur Rahim, M.A. (1994)T he Principles of Islamic Jurisprudenc eN. ew Delhi. Kitab Bhavan 79 LECTURE TWELVE Al–Ta‘zīr Introduction There are some crimes mentioned in the āQnu rw’ ithout specifying their punishments. The judges are left to determine them. Apart from theete rdmined offences, many other offences are not mentioned in the Quārn’ and the Sunnah not to talk of their punishme nTths.e refore, both offences and their punishments have to be deterdm biny ethe judge. Their determination must be related to the general principles in the Qānu ra’ nd the Sunnah. This lecture will make you understand some offesn mceentioned in the Quārn’ without specifying their punishments. You will also undtaenrsd the roles otfa ‘zīr in the determination of undetermined punishments for the determined offse.n cYeou will also understandta ‘zīr punishments for the determined offences. How tnod hlea both undetermined offences and their punishments is also covered in this lecture. Objectives At the end of this lecture, you should be able to: 1. definea l- ta‘zīr. 2. identify some crimes whose punishments are tnaotet ds in the Qurā’n. 3. understand the roles oafl- ta‘zīr in the determination of the punishments for offeesn c whose punishments are not in the Qānu ra’ nd the Sunnah. 4. State somtea ‘zīr punishments. Pre-Test 1. Explaint a‘zīr and mention its objectives. 2. List some crimes mentioned in the Qāunr w’ ithout specifying their punishments. 3. What are the roles of the judge in relationta t‘ozī r? 4. What should be the watchword of the judge wheetne rdmining thet a ‘zīr punishments? CONTENT Ta‘zīr is a verbal noun derived from the verabz z‘ara (a four - letter verb) which means to reform, to prevent etc. Technically, it means ai sphumnent aimed at preventing the criminal from committing further crimes and at reforming him.t aIn‘z īr, the court is allowed to use discretion both as to the form in which such punishment ibse t oin flicted and its measure. 80 The objectives otfa ‘zīr are to reform the criminal and to prevent him f rfoumrther crimes i.e. it aims at reformation and deterrence. All crimoers wf hich ḥadd and qiḥāḥ are prescribed are excluded fromt a‘zīr. Some time,t a‘zīr is made to replacḥe add crimes where the evidences to establish suchḥ add crimes are not enough. There are some crimes mentioned in the āQnu wr’ithout specifying their punishments. The judge or the ruler is left to decide the type onf ipsuhment to impose and the manner of inflicting it. For instance, the judge is left to decide hoen type, amount and the manner of punishing those who practise homosexualism. The Qānu rs’ays: “As for the two of you (males) who are guilty of it, punish them both”. If a wife is guyil tof gross misconduct, and has refused to respond to other prescribed forms of correction, the husdb iasn given a certain amount of freedom in deciding how to use his authority as regards thired tfhorm of correction i.e. beating her lightly. These steps are taken to protect his family ash ethaed of his family. In the same vein, the rulers or the judges are given a certain amount of free tdoo muse their discretion as regards some cases that fall outside the areas of the fixed punishms eanl-tḥudūd anda l- qiḥāḥ in order to safeguard the society. “As for those (women) from whom youa rf edisloyalty and ill-conduct, admonish them (first), (next) refuse to share their bedsd, (alanst) beat them (lightly)” Another verse from which the law toaf‘ zīr can be deduced is: “The recompense of an evil is a like evil….. But if a person forgives and makecso rnciliation, his reward is due from God”. In this verse, the judge is left to use his discre ttio ndetermine the amount of punishment the offender would be given while taking into considteiorna the maximum penalty mentioned in the verse by a way of equality. They must not give m tohraen the like of evil the offender has committed. However he is allowed to give less tthhaen m aximum punishment. Ta‘zīr is also found in the Sunnah as regards the puneinsth mfor drinking alcohol. The Prophet’s companions held various views. Some vbeedli eit should be fifty lashes. Some considered eighty lashes as the punishment ford rthinek ing of alcoholic drinks. This is an indication that the judge is allowed to utsae‘z īr as regards this offence. The Prophet ordered all Muslims to boycott Ka’b b. Malik and Murarah b. Uymaa. Their wives were also asked to boycott their beds. This was because they inteanltliyo nwithout any excuse refused to go with the Prophet to the battle of Tabuk when their serviwcesre needed. Later, a Qāunr’ic verse was revealed stating that they had been forgiven. Tuhneis phment of boycott was fixed by the Prophet in the form oft a‘zīr. The creditor is encouraged to give a debtor wsh foin iancially handicapped more time to pay his debt or he should write it. oHffowever, in relation to this Quārn’ ic injunction, the Prophet allowed a rich person wehfou sred to pay his debt to be punished in this Haddith. The extent of the punishment is not mennetdio. The judge is to use his discretion in the form of ta‘zīr. The punishment for apostasy can onlyt ab‘ezī r because these is no compulsion in religion (Q2:256). Therefore, it can be rightly said thaet tQhur’ān and the Sunnah refer to this type of punishment by implication, if not directly based tohne examples given. Ta‘zīr Punishments It must be mentioned at the onset that it is nosts pibole to list allt a‘zīr punishments. This is because the judges are left to determtain‘zeī r punishments and they have a wide variety from which they can choose the one they consider tou ibtaeb sle to the particular crimes at their hands. However, they are not to order a punishment th atg aisinst the Islamic law such as whipping an offender nakedly and asking an offender to eat porr kdrink alcoholic drinks. Whatever 81 punishments a judge is to order must serve the opsuer pof preventing any further crime and reforming the offender. Beautiful preaching or admonition If a person has done an unlawful thing, he shouel da dbmonished in the first instance before another form of correction is taken provided thne csoi mmitted is not among the offences of ḥudūd. An example is given in the Quānr’ concerning a disloyal wife who is to be first aollf admonished or counselled to remind her if she hoargso ftten the implication of what she has done. It may also be to inform her if she was nwoat rae of the implication of her actions. This kind of ta‘zīr is for those that commit a minor offence. It iesl iebved that such an admonition would benefit him if he is a believer based on Qthuer ’ānic quotation which says: َ49ِِiْAُ ْآَى Jُ1َ9ْEَ اْ ن ا !ِBَ ْآ َوَذ “ And remind (by preaching the Qur'ân, O Muhammad S) AfoWr verily, the reminding profits the believers” (Q51:55). Reprimand The judge may feel that reprimand is enough toe ccot rarnd reform an offender. Such words of reprimand are taken to btae‘ zīr. However, the judge must be careful when utterinogr dws of reprimand so that words oafl -fahashā’ are not uttered based on the Qānuirc’ verse against foul language. ْ<ُ>ُ,ِ-َ Mِoْ:َ  اْ cَTْ1َِء َواْ 9ْAَُ>ِ َواَِْ C3َ9ْ-ََو Cَْ*ُ َ,Iِْل َواْ ِ!ْ?َِن َوِإ-2َِء ِذي اِْْ ُُ&ْ-َ Fَ ن ا إ آُوَن َEَ ْ<ُ ,َ َ Verily, Allâh enjoins Al-Adl (i.e. justice and wohripsping none but Allâh Alone - Islâmic Monotheism) and Al-Ihsân .[ it.oe be patient in performing your duties to Allâh, totally for Aâhll's sake and in accordance with the Sunnah (legal ways) of the hPerot pSAW in a perfect manner], and giving (help) to kith and k(in.e . all that Allâh has ordered you to give them e.g., wealtshi,t invig, looking after them, or any other kind of help, etc.): aonrdb fids Al-Fahshâ' (i.e all evil deeds, e.g. illegal sexual acts, dbiesdoience of parents, polytheism, to tell lies, to give false witness ,k itlol a life without right, etc.), and Al-Munkar (i.e all that is prohitiebd by Islâmic law: polytheism of every kind, disbelief and evekirnyd of evil deeds, etc.), and Al-Baghy (i.e. all kinds of opspsiroen), He admonishes you, that you may take heed (Q16: 90). Threat The judge may threaten an offender if his offenss ae mi inor one. He is asked to mend his ways and not to repeat the offense. He may pronounceen tae nsce against him, and the execution is delayed until he commits the offense again with itnim ae frame or a given period of time to be determined by the judge. He is to use his discnreatriyo power to determine the form the threat would take. 82 Boycott The Prophet asked his followers to boycott Kab, aMrauhr and Hilal who did not participate in the battle of Tabuk. Their wives also were asked no st letoep with them because they did not have any excuse or reason not to go to the battle ouf kT awbith the Prophet. This form otaf ‘ziir is to some extent difficult to apply nowadays Public disclosure (Al-Tashhīr) When the trustworthiness of an offender is quesatbiolen, he may be asked to disclose his other property. The pieces of information about him maey p bublished in the newspaper. They may be broadcast on the radio and television so as to p ceaolpl le’s attention to his gross misconduct so that people would not trust him. They would not oa lgsive him position of authority or responsibility or trust. One other way by which this type toaf‘ zīr can be carried out is to take the offender to ye ver part of the city particularly his area and tell tpheeople the crime he has committed so as to call people’s attention to his dishonesty and lack uosf tt.r It could also be recalled that the Prophet wasr ya nagt the behaviour of one of his companions who had kept part of Zakat he collecfoter dh imself and gave the prophet the rest. He scolded him: “if the appointed man had staye dh isin father’s or his mother’s home, would anyone have given him a gift or not? He was thekne da sto disclose what he had kept for himself. Fines and seizure of property Fines and seizure of property can be usetda ‘azīsr punishment. It is left to the judge to decide how much the offender should be fined. Crimes ahnedir tfines may be listed in a muslim country. It must be mentioned that some juristsn odto recognise this type otaf ‘zīr while some asserted that the Prophet made use of this typtae‘ zoīrf. So, there is a controversy as far as this financial punishment is concerned. Imprisonment Ta‘zīr can also be in the form of imprisonment for a ndietefi term for minor offences. There is no consensus as regards the minimum period of impmriseonnt as well as the maximum period. The jurists held various views as regards the minimunmd tahe maximum. The Maliki, Hanafi and Hanbali schools did not have a maximum periodt afo‘zrī r imprisonment, because it varies for each offence and from one person to another. Horw, eSvheafi‘i fixed one month for investigation and six months for punishment. According to hime, tmhaximum period should be less than a year. Banishment Banishment is also likened to imprisonment nowa.d aTyhserefore, apart from the crime of fornication, banishment is considered tas‘z īr punishment for offenders who are likely to influence other people to copy their deviant beohuarv.i 83 Flogging Flogging can be considered as the punishment oefn coeffs ofḥ udūd such as 80 lashes for offences of adultery. It can also be regardedt aa‘zsīr punishment particularly in the case of alcoholic drinks. There is no consensus as farh ea sm taximum number of lashes that can be given to the offender is concerned. The juristsd hvealrious views. According to some, it is 75 lashes, and some fix it at 39. One opinion hol dtos ibte 99 while others do not allow more than 20. Therefore, the amount toaf‘ zīr punishment by flogging is left to the authorityn coerned who is to determine it according to the offender’s cahcaterr and other circumstances. The death penalty (Al-ta‘zīr bil qatl) The death penalty can be imposed for the offencf eḥsu odūd. It can as well be applied atas‘ zīr punishment. As regards the latter, it is an excoenp. tHi anafi texts recommended death penalty for habitual homosexuality, a habitual thief and ther dmeurer on whichQ iyās cannot be imposed because of the means used in the crime. The Msaclihkoi ol permitted it for offences such as spying for the enemy, propagating heretical doect,r ipnractices which split the community and the habitual offender whose wickedness can onlsy ob est opped. The shafi and Hanbali schools held the same view with the Maliki school. Judges should do their best by means of consocuiesn trieasoning ijt(ihād) to choose the proper punishment in each case tao‘fz īr. They should avoid injustice. They should alsor fea Allah and know that the judgement does not end . hIet rceontinues on the Day of Judgement. They must pronounce the most suitatbal‘ez īr punishment that will be capable of correcting and reforming the offenders or the culprTit.a ‘zīr is a punishment for transgression against God or against an individual for which there is neithḥear dd punishment norK affārah. They should know that the Qurā’n and the Sunnah contain many statements whichi bpitr ovharious activities and consider them as sins. Many of these prohi baitectdivities do not have prescribed punishments attached to them. It is the duty o fj uthdege to determine theitra ‘zīr punishment. Usury (riba) Usury is strongly prohibited not only by Islam (Q2725: -279) but also by all major religions of the world. The punishment for it is spelt neithne rt hi e Qurā’ n nor in the Hadith. The judge determines the punishment for the already deterdm cinrieme (usury) by a way otaf ‘zīr. False Testimony False testimony is considered a sin and a crimseta atesd in the Quār’n. The punishment for false testimony is not stated in the Qāunr.’ It is the judge’s duty to determine tiats‘z īr punishment. Breach of trust Breach of trust is also considered a sin as coendta iin the Qurā’n. However, the punishment for this determined crime is not mentioned in the Qānu.r ’It is, therefore, the duty of the judge to determine itst a‘zīr punishment. 84 Bribery ( al – Rishwah) Bribery is one of the dishonest ways of making myo. nTehis is strongly condemned in the Qur’ān and the Sunnah. Therefore, it is an offence mdeinterd by the Qurā’n and the Sunnah. The judge’s work is to determine ittas‘ zīr punishment. Theft The amputation of the thief hand as tḥhaed d punishment for theft is to be imposed only when the stolen property reaches a minimum value an db eheans taken from its proper place of custody or hirz. When one of these two conditions is not provtheed , offender although not liable to the hadd punishment may nevertheless be liable ttao‘ zaīr punishment. Many other offences can also be determined byju tdhgee . However, they have to relate it to the general principle in the Quānr’ and the Sunnah and the goals of Sī‘ahha.r The right and the wrong are stated in the Quānr’ and the Sunnah. Judges need to investigate thr’eā nQ aund the Sunnah with a view to identifying them. It shouled borne in mind that their details are not in the two sources rather they are stated in generrmals t. It is not possible to give detailed laws to control every aspect of human life. It is only tgheeneral principles which may be found therein. The details are left to the discretion of the comnmityu. It must be mentioned that the legislation passed by the ruler must be in line with the gel nperrianciples laid down in the Quārn’ and the Sunnah. It must not go against any general prien ctihpel rein. If these conditions are met, the ruler is free to pass whatever legislation they thinkn eise ded. This is callesdi yāsah shar‘iyyah (the legislative right). This is the point of linkage twbeen the two termas l- ta‘zīr and al– siyāsah shar‘iyyah. Ta‘zīr is an evidence of the flexibility of the Islamice npal system. It must be mentioned point blank that without the law toaf‘z īr, the Islamic penal system would certainly have been inadequate. Witah‘ zīr, it matches all ages and places. The ruler thaesn the authority to safeguard the public interest by mga khinarmful behaviours unlawful and prescribing punishments for them. This is because the ultimoabtjec tive of ta‘zīr is to punish wrong deeds which may do harm to the society or an individu Malo. ral standard is enforced throu tgah‘zīr. It provides Muslim states nowadays an opportunoift yf ormulating policies outside the limited area of theḥ add punishments. The variety of punishments allowetda ‘azsīr can save the modern Muslim states from having to borrow theinr aple laws from Western modelTs.a ‘zīr is also a proof that the Islamic concept of punishm ise nvat lid and relevant at all times. Summary Al ta‘zīr is a punishment that aimed at preventing the cnraiml firom committing further crimes. Somet a‘zīr punishments are mentioned in relation to thtae‘izrī r offences. But the extent of the punishment is not mentioned e.g. beating a dis lwoyifael etc. The judge determines the form and the measure. Somtae‘ zīr offences are mentioned without mentioning theinr isphuments e.g. riāb (usury) etc. It is left to the judge to determtihnei r punishments . Post-Test 1. Define ta‘zīr? 2. What are the objectives otaf ‘zīr? 3. List and explain somtea ‘zīr punishments in the Quārn’ and the Sunnah. 85 4. Identify some offences whose punishments are nteodt sina the Qurā’n and the Sunnah. References Kasani (n.d.) Bada ‘I as-sana’ fi tartibush-shara‘. Volume. 7Cairo: Sharikah al- Matbu‘atil Islamiyyah. Sihnun, (1323 A.H.A) l-Mudawwanah al-kubra li Imam Malik b. Anas vovl.. Bi eirut: Dar sa’adah Vermin, B.R. (1978).M uhammedan law in India and Pakis.t aA)llahabad. Delhi law house. Doi, A.I. (1984).S harī‘ah (The Islamic Law). London: Ta Ha Publishers. Yusuf al-Qaradawi, 1989. The lawful and the protheidb i in Islam. Lagos: At tawheed Publishing Company. Encyclopaedia of Islam, vol. iv, p710 86 LECTURE THIRTEEN Takhayyur and Talfiq Introduction This lecture introduces you to the principleT oafk hayyu rand talfīq. The freedom of a person to be guided by the law of other schools of Islamircis jpurudence is calletda khayyu.r Talfiq is the fusion of juristic opinions of diverse mature. Tshceh ools explained some injunctions of the Qur’ān according to the understanding of their found eTrhse. re are differences in their rulings on non-major principles or belief. You will learn ho ewach school respected the views of others. Followers of different schools work and live togeert hnowadays. Thereforeta, khayyu rand talfīq are highly needed. You will also learn the prinecsip tlhat guide the two concepts. Objectives At the end of this lecture, you should be able to: 1. define correctly and explain fully the two termiongoiles:t akhayyu randt alfīq. 2. know thatt akhayyu ris only on non-major Islamic principles. 3. trace the differences of opinion to the sayingtsh oef Prophet. 4. understand the good relationship that existed am thoen gfounders of different schools of Islamic jurisprudence 5. explain rukhḥah (relief) in relation tot alfīq 6. state the merits and the demeritsta olffī q Pre-Test 1. Explain takhayyu randt alfīq 2. The founders of different schools of Islamic juriusdpence differed on non-major issues. Discuss 3. Explain rukhḥah (relief) in relation tot alfīq 4. What are the advantagest aolff īq? CONTENT Takhayyuri s a verbal known derived from the vertba k“hayyara, a five-letter verb. Literally, it means choice. Technically, the word means the ofrmee odf a person to be guided by the law of any of the four schools of Islamic jurisprudencben ( IQudamah, 1985). The founder of the four surnni schools i.e. Hanafi, Maliki, Shafi and Halni bhad deep knowledge of both the Qāunr ’and 87 the Sunnah. They studied, wrote and taughSt thhaerī ‘ah from these two sources (the Qāunr ’and the Sunnah ). They were able to elaborate the Islamic lainwtos a comprehensive system of jurisprudence throughq iyās and Ijmā‘ . There are differences in their rulings on somaret icpular issues that are not major principles of belief. Their differencerse aon the interpretation of certain aspects of jurisprudence. This was not peculiar to these Im. aTmhse differences among the community occurred during the time of the Prophet, the riyg hgtul ided caliphs and the eartlayb i‘ūn though there was nothing like any particular school. Throep Phet regarded the differences as blessings because througihjt ihād they would be able to understand the Qānu ra’nd the Sunnah better. This is the reason why he said: “Differences of opin aiomnong my ummah are a form of blessings” (Kasani; Al-Hakim; Ibn Hazm) The implication oft akhayyu r is that if one is born in a Maliki home and hase nb eusing Maliki laws, he has the right to shift to anothecrh osol say, Hanafi School if he finds in the school what could assist him to serve Allah in atte br eand easy way. All these schools hold the same beliefs, worship together and recognise tghael jluedgement of others in the Sīh‘ahr courts. Even the founders of these schools loved, resp eacntde dlearned from one another. For instance, Abu Hanifah whose school is followed nowadays bys tm poeople in Turkey, Egypt, Russia , China, India, Afghanistan, Pakistan etc visitedd Minah and listened to Imam Maliki’s lectures despite the age difference between them. Imam Shafi studied Hanafi jurisprudence anudw Matta of Imam Malik. His followers are abound in Indonesia, Yemen, Egypt, Syria, Malayasniad East Africa. Imam Hanbali whose followers are mostly in Saudi Arabia was a pup ilI mofam Shafi. He also studied and memorised al-Muwatta of Imam Malik. This book is used by tfhoello wers of Imam Malik who are in North and West Africa (Doi, 1984) If a Maliki should stick to only the Malikai wl s of jurisprudence, he is callmedu qallid. He is, however, brandegda yru muqallid if he is able to shift or use the teachings oft haenro school, say Anbali. It should be recalled thatat qlīd from which muqallid is derived is to follow a jurist or accept a jurist’s view as regards the understan odfin tghe Qurā’ n and the Sunnah. He has no liberty to be governed by the law of another sc hootohler than his own. If one exercises one’s liberty to be governed by the law of another sc hotohler than his own, one is practising takhayyu.r It is only the judges that are well trainend I si lamic jurisprudence that can make use of this principle. This is because he will be able to mak ech oice between the corresponding legal principles of the various schools provided it waislls ist him to give his judgement based on equity and justice. Such a judge should be pious, knogwelaebdle and mature. Judges should be well disposed to apply the laws of other schools othaenr ttheir own based on our discussion on the attitude of the founders of these schools to onoeth aenr. Nowadays, followers of different schools work and live together. Therefortea,k hayyu ris highly needed in a case of conflict of law .t h Iifs principle is used, bearing in mind the teaching st hoef Qurā’ n and the Sunnah, the reforms necessary to suit the social and economic condsi tioofn the modern time will be acceptable. Takhayyura lso affords the judge the opportunity or the froeme dto apply an opinion other than that of the school to which they were tradition ablloyund. Sudan is one of the countries that use Takhayyu.r 88 Talfīq Talfīq means piecing together or patching up through cinoamtibon and fusion of juristic opinions of diverse nature.T alfīq did not exist in the era of the Prophet becauesere t hwas no need of it. When Prophet Muhammad was alive, there was no fnoer eadn y other guide because he was able to proffer solution to all matters. The Prophet wthaesre to guide his followers on the necessary steps to take when confronting any issue. The conmiopnas studied him and imitated him. They documented his sayings and deeds for their usef oarn tdh e use of future generations. Their collections were passed on to others. These ctiolnlesc contained all the cases he had judged and all the decisions he had reacheTda.l fīq became an issue after his death particularly du arindg after the time of the four Imams. Talfīq can also mean mixing madhhabs for separate acatts htahve no direct link or dependency between them. It is also referred toi nmg ixmadhhabs for separate acts that are dependent on one another. For instance, salat dse poenn ablution (wudui). An example is that if one is performing wudui like a Maliki, one has toip ew one’s entire head hair. However if one is performing wudui like a Hanafi, one does not wipnee ’os entire head hair. If one is performing wudui in a hanafi way (by not wiping one’s entirea hd hair) and the person is praying like a maliki, such a person is practisintagl fīq in separate acts of wudui and salat. Talfiq clason bae done within the same act. An example is when o npera isying in a Hanafi way, one has to cross one’s hand on one’s chest in the prayer. The hashnodus ld be left dangling to the side if one is praying like a Malik. If a person is praying like M aaliki, and the person crosses his hand on his chest in the prayer, he is mixing the laws of Isicla jmurisprudence of the two schools (Hanafi and Maliki). Rukhḥah (relief) reveals itself in the principle oTfa lfīq where verdicts are combined together particularly when they are consistentx ipnr essing the same line. (Ibn Qudamah, 1985; Kasani; Ahmad ibn Hanbal; Sihnun, 1323) Talfīq and the Issue ofR ukhah Rukhḥah means relief. It connotes the rules enacted bya hA ltlo lighten the obligation of a Muslim that is bound by Islamic rules and regulnasti oin certain cases that call for such a relief. It is used in case of emergency or compulsion. TPhroep het said: “Verily, Allah likes His rukhahs to be adopted just He wishes that His oblingas tiaore obeyed. Verily, Allah gets furious with whoever does not follow Hirsu khḥah” (Ibn Qudamah, 1985; Ibn Hazm; AI- Ghazali, 1322; Mirza Gharawi). Rukhḥah is the permission given by Allah to His servan to rinder to reduce his burden. This is to bestow comfort and abundance upon the weda kth aen excused. When one is on a journey of 78km or more, he is permitted not to fast as a forfm rukhḥah. Some scholars consider it ḥaram (unlawful) for a person who fast on a journe ym oofre than 78KM. He should make his duty easier for himself by finding or using andl ofowling rukhḥah i.e. the verdict that is lighter and easier. A mujtahid does not neetadl fīq because he is competent to deduce the rulingsh aorfī ‘aSh from the two sources by himself without relying aony schools. He is to act on his inferences and may not follow others’ opinionsT. a lfīq is for Muqallid i.e. non –m ujtahid. It is not for mujtahid. If a person is acknowledged as the most leajrunreisdt , and has all the qualifications of his positions, he may not neetadl fīq and rukhḥah. The most learned person’s view may be followed. Talfīq may also be calledta qlīd i.e. what they callt alfīq is nothing but taqlīd. 89 Rukhḥah is a subset otfa lfīq. A person has the right to choose a way that ei se tahsiest for him. The Shaīr‘ah has no objection or prohibition against it. T ahdeoption ofr ukhḥah should not be for the sake of entertainment. Reasons for OpposingT alfiq If people indulge in it, it can cause weaknessh ieni rt character or moral standards i.e. they may not be committed Muslims. It may also lead to opr efnu sal to obey the order of the legitimate ruler. It can cause damage and evil consequenTcaelfsīq. may lead to the use of dishonest methods in matters of the Shī‘ahr to achieve what one wants. Therefore, the tnecnyd eto commit ḥaram in the name ofr ukhḥah is possible. It may make a persfoāns iq (a wrong-doer or a sinner). However, it is not right to say people sho nuoldt take tor ukhḥah simply because it can cause the above-mentioned evils. The Qāunr ’allows rukhḥah and the Prophet also said he prefers following the easier path of any two ways. It ist nrioght to prohibit something that is allowed by rules. Some rukhsahs have great effects such masa rirniage and divorce. For instance, divorce is invalid when one pronounces it during anger ohre nw one is angry (Vermin, 1978; Mirza Gharawi; Al-Sadr) Benefits of Talfiq A person has the right to choose a way that ise athseie st for him provided the way does not go against the Shīa‘ar h. It is very useful when putting up guideliner fIoslamic economic system, Islamic banking etc. This is because verdictse idss buy several jurists may be combined together to form the theoretical framework for such discnipelsi . In relation to this issue, Martyr al-Sadr explains in his book, Iqtisaduna: The exploration of economic doctrine is accompldis htherough an operation of ijtihād in understanding authentic texts (nass), classifying them, and reconciling their indicatio nins a uniform manner, and we saw that ijātidh differs and varies as a result of the mujtahids' difference, in the way they undenrds ttahe authentic texts and resolve the contradictions that occasliloy naemerge among those texts, and the difference in the rualneds general jurisprudential methodologies that they employ. aWlseo saw that ijtihād enjoys a shar'i characteristic and an Islamicr iabtutte as long as it fulfills its obligation and provides aic pture and defines its limits and contours in the framework of the Bk oaond the Sunnah, and according to the general conditionst tahrae not violable. It is concluded from what we said thaet itnhcrease of our reserve with respect to Islamic economy and the rgeemnece of numerous forms of it, are all legitimate and Islac,m ai nd we can possibly select, in every field, the strongest elnetm that we find in that form and the most powerful one in solving pthroeb lems of life and realizing the exalted ideals of Islam. Thisa nis o pportunity of inherent choice where a researcher holds his freme daond opinion. Taking advantage of this inherent opportunity anodn fcerring the doer a right in selection in the general framewoforkr ijtihād in 90 Islamic law is sometimes necessary condition frohme ttechnical viewpoint of exploring operation (Al-Sadr). Summary In this lecture, we have learnt thtatk hayyu ris freedom to be guided by the law of any schools of Islamic jurisprudence whileta lfīq is combination of juristic opinions of different hsocols. We have explained that the differences in the grusl inof the schools are not on major principles. Their differences are on the interptrioenta of certain aspects of jurisprudence. In this lecture, we stated that the founders of thuer sfochools loved, respected and learned from one another. The issue roufk hsah and the benefits otaf lfīq were also examined . Post-Test 1. Talfīq means – 2. Takhayyu rrefers to – 3. Explain in relation tot akhayyu rthe Hadith: “Differences of opinion among my Umhm a are a form of blessings”. 4. What are the merits and demeritst aolf īq? 5. Discusst alfīq and the issue orfu khṣah. References Vermin, B. R. 1978.M uhammedan law (in India and Pakista. nA)llahabad. Delhi law house. Ibn Qudamah, M. (1985A). l-Mughni. Volume 3 .Beirut: Dar-al-Fikr. Ibn Hazm n.d.A l-Muhalla vol. XI. Beirut: Dar al-Afaqil Jadidah volume Ahmad ibn Hanbal (nd) Musnad, chapter 2. Mirza Gharawi (nd) Al-Tanqih, al-Ijtiāhd wa al-Taqlid. pp. 77-81. Kasani (n.d.) Bada ‘I as-sana’ fi tartibush-shara‘. Volume. 7Cairo: Sharikah al- Matbu‘atil Islamiyyah. Doi, A. I. (1984).S harī‘ah (The Islamic Law). London: Ta Ha Publishers. Al-Ghazali, A. H. (1390 )Shifa’ Al-Ghalil. Baghdad: Al-Irshad Al-Ghazali, A. H. (1322 )Al-Mustasf min ‘lmil uḥūl.Cairo: Halabi Press Al-Hakim, S. M. (nd) Al-'Urwah al-Wuthqa vol. 1. Theran: al-Maktabah al-'llmiyyah Al-Sadr, M. B. (nd) Iqtisaduna, vol. 2, p.380 91 LECTURE FOURTEEN Recent Demand for Shaīr‘ah in Muslim Countries Introduction Sharī‘ah is a Muslim way of life. The implication of tsh istatement is that all his actions, whether relating to human dealings or spiritual aspects r eagreulated by the Shīa‘arh. The roles Shaī‘ar h plays in the life of a Muslim are more than thee rso lblood and water play in the body. Considering the benefits of Shī‘arh to the lives of Muslims, The Muslims have bemeank ing frantic efforts for the introduction of Shī‘aarh in many Muslim countries including Nigeria. Since 1085 CE, Muslims have been demanding it. rNiaing econstitution allows it and it is only for Muslims. It does not concern non-Muslims. Tdhrea ms have not come into reality. In this lecture, you will understand the reasonhsy wMuslims have been demanding Sharī‘ah. You will also be informed of the efforts of et hMuslims since 1085 CE to get it implemented for themselves alone. You will also wkn that the Muslim lands had been guided by Shaīr‘ah in all aspects of life, public, private, soc, iaelconomic, political and international dealings before the coming of their colonialists. Objectives At the end of this lecture, you should be able to: 1. state the meaning of Shī‘arh and what it means to a Muslim 2. discuss the reasons for demanding the introducotfi oSnh arī‘ah in Nigeria since 1085 CE. 3. know the efforts of the colonialists towards then cceallation of Shaī‘rah in some Muslim countries. Pre-Test 1. Define Shaīr‘ah 2. Discuss the reasons for demanding īS‘ahha rby Muslims all over the world. 3. Examine the efforts of the colonialists as redgs atrhe cancellation of Shī‘aarh in some Muslim countries. CONTENT Definition of Sharī‘ah Sharī‘ah is literally translated to mean a course lega dtoin where water is obtained in the desert. Technically, Shaīr‘ah is the divine law laid down in the Quānr’, the Sunnah and other acknowledged sources for the regulation and guied aonf chuman conduct. It is a Muslim way of life. This means all actions of a Muslim, whethelra rting to human dealings or to his spiritual 92 aspects, are regulated by the Sī‘haahr. The Shaīr‘ah coversI bādah (worship), al– aḥwāl al – shakhsiyya,h (sovereignty),s iyar (international law),a ḥlāq (law of morality), uqūbat (Islamic criminal law) anda l-adab (ethics). It could be seen from these categorhieast nt o aspect of human endeavour is left untouched. This is to shthoawt the Shaī‘rah is a total way of life for Muslims. The above-mentioned categories show tlhees roof the Shaī‘rah in the life of Muslims. The Shaī‘rah is like a manual attached to an electronic geat.d Tghe manual guides the users on how he can use it successfully. If there isro ab lpem, the manual also gives guidance on how to rectify the problem. In the same vein, the Sī‘ahha rguides not only all aspects of a Muslim’s life, but also the society at large. This is bescea tuhe manual sent by the Creator of this world to guide the inmates is the Shī‘ahr . An attempt to deviate from the instructiond lse ato chaos and the like. Some of the Roles of Shar’iah The Shaīr‘ah guarantees security of life and property. iFnosrt ance, it protects the interest of nursing mothers and their children by asking thres inug mothers to breast-feed their babies for a period of two years (Q2:233). The resultant eff eocft sthe beast-feeding are too obvious to be mentioned. A child that is breast-fed well will hbealthy, sharp, agile, intelligent to mention but a few. It also reduces the likelihood of cancerth oef breast, ovary and cervix in women. It also protects babies from diarrhea, pneumonia etc. Tohteh emr also enjoys good health by breast- feeding her baby. Shīa‘arh prohibits adultery and fornication. The implticoans of this prohibition are many. In the first instance, all the sexuatrliatyn smitted diseases (STD) such as gonorrhea and the Acquired Immune Deficiency Syndrome (AIDS) wdo uble reduced to the barest minimum if not eliminated totally from the society. This isc baeuse the couple would be faithful to each other as a result of fear of the punishments attachefodr ntoic ation and adultery. Equality before the law is another benef iSt ohfarī‘ah. If Shaīr‘ah is allowed, it promotes this concept because nobody is above the law. The cf aUsme aor ibn al –Khattab (the second head of State after Prophet Muhammad) and an ordinary pnet awshao appeared in the Shī‘arh Court of Law when the latter had a case against the forBmoetrh. were made to face the law on an equal basis. Shaīr‘ah covers private and public lives of Muslims. T Shhearī‘ah guides Muslims on their modes of dressing. It recommends modest dressIti nsgh.o uld not be transparent and tight. Body hug clothe should be avoided. Both males and fesm arle ordered to lower their gaze. The resultant effects of all these Sīh‘ahr instructions are reduction in the case of r aapdeu,ltery, fornication etc (Q 24: 30 – 31). There are Sī‘haahr instructions on how to enter another person’s house. This protects people’s privacy and remomvebsa errassments (Q 24: 58 –59). The punishment for alcohol drinking can d epteorple from indulging in the habit. Therefore, the problems of alcoholic drinking such as utte rfionugl language, killing, psychiatric problem to mention but a few would be removed in a place itsh agto verned by Shīa‘ar h. Effective Leadership is guaranteed in a Sī‘ahha rgoverned state. People will be asked on how they rule. People in the legislative power, exevceu tairm and judiciary will be conscious because they know they are answerable to Allah. If they deev ajudgements here on earth, the judgement continues on the Day of Judgement. The judgemeenst dnot end here. Consciousness of this fact will make them effective and efficient when perfoinrmg their leadership role. Sharī‘ah can lead a nation to a vibrant economy becaitu psreo hibits some things that can serve as barriers to economic growth and develotp.m Seunch things include prohibition of 93 interest, corruption, deceit etc. The populacea ngsro in abject penury because of interest. Recently, the money (N1, 360bn through AMCON) twhaotu ld have been used to give people effective and efficient power supply, good roadusn, cftional water supply etc was used to stabilise the banking sector in Nigeria. This mo inse tyaken from taxes paid and the revenue from other resources. Poverty alleviation or elimination is possei biln a state that allows Shī‘arh. Through the payment of Zakat and its judicious disbursement uasned it is possible to alleviate poverty and reduce it to the minimum if it cannot be elimina teodtally. Under the Shaī‘ar h 2.5% is paid on one’s money if it reachensi ḥab (minimum amount one can have before paying Za k Zaat)k.at is also paid on other resources such as gold, siflavremr, produce and animals. This is expected to stabilise the economy and improve the standardiv ionfg l of not only Muslims but also people living in a country where Zakat is paid. This wahse tcase during the time of Caliph Umar. People were satisfied economically to the exteantt tthere was nobody to collect Zakat later. It is part of Shaī‘rah to counsel one’s children as contained in thuer’ āQn (Q31: 13 – 19). If children are properly guided, they would becomed g. oPoeace will reign in the society. The bad consequences of their misbehaviours will be avo idf ethdey are properly nursed in line with the Sharī‘ah. The future of the nation is expected to bieg hbt rbecause they are the leaders of tomorrow. In the verses quoted, Luqman taught hiisld rcen not to be disobedient to their parents. By implication, they should not be disdoiebnet to constituted authority. They were also advised to worship only Allah. They should avorirdo agance and the like. The books of Shīa‘arh also preach humility, patience, justice obsnecrvea of salat etc. The resultant effects of all these are well known isno aci ety where all these teachings are used. There are Shaīr‘ah instructions on how to enter another persono’uss he. This protects people’s privacy and removes embarrassments. The rule of courte say yt soalamu ‘alaykum to those inside the house before one enters is a way of protectingp rtihvea cy of the individual. The implication of uttering salamu ‘alaykum is that the people inside or the persons beinegt egdre have nothing to be afraid of from the person greeting. The resut lteaffnect of such utterances is that trespass, stealing, armed robbery, burglary and similar ocffeesn may not be possible if one really follows the intent of the words of greeting in Islam (Q247: – 28, 58). Shaī‘ar h can effectively prevent famine, terrorism, disease, homelessness, deblint,g k ialnd armed robbery as it can effectively promote justice and fair play. In view of these benefits and reasons, Muss lhimave been demanding to practise all aspects of their religion. The Shaī‘rah is only for Muslims alone. The constitution c(Stioen 38 (1) of 1999 Constitution) also guarantees freedom of iroenli gand the practice of its legal, economic spiritual and social aspects of their religion. TShhearī‘ah is for Muslims as contained in Q 45: 18 “We have made Shīa‘arh for you (as a law), so follow it and not then cfaies of those who have no knowledge”. Some of the other verses which comm Maunsdlims to use Shīa‘ar h are Q5: 47, Q5: 48 and Q5: 50. This shows that the application hoaf rīS‘ah is mandatory on every Muslim, male or female. It is not a matter of choice. The Sī‘haahr is not for non-Muslims such as Christians, Jews and idol worshippers. The Qāunr ’says: “Why should they come to thee for legali sdioenc when they have their own Taorah which containsl athwes of God? Even if thou apply it to them, they would still turn away (from you). For they anroet really men of faith.(Q5: 46; Q5: 60)”. This revelation came to the Prophet when a grou Jpe owfs came to the Prophet asking him to adjudicate in a legal matter among them. This i si nadnication that Shaī‘rah is not for non- Muslims. It is not also an attempt to force Sī‘haahr on non-Muslims. Because Sīh‘ahr is 94 indispensable to the life of a Muslim, the demaonrd itf in some Muslim countries particularly Nigeria becomes stronger from time to time. It iiss lhaw, his culture and his essence. Sharī‘ah in Western Sudan including Nigeria The application of Shaī‘ar h as a legal system started in Nigeria with tdhvee ant of Islam in the country through Kanem-Borno in 1085 CE. It was uthgrho traders from North Africa. Shaykh Muhammad Al – Maghili contributed a lot to the ebslitsahment of Shaī‘rah through his writings particularly hisA jiwabah (answers to questions). He wrote the treatise ifnogr Hk ajj Muhammad Askia of Songhay (1486 – 1527). His treatise, “goabtliions of Amirs”, was also written for the Amir of Kano, Muhammad Rumfa (1463 – 1499). Durtinhgis period Maliki jurisprudence was applied law in Western Sudan. During the time Is lwamas penetrating West Africa, It also penetrated North African through the traders of tNh oArfrica origin. The North African Berbers were being islamised. As early ast h1 c4entury, Shaī‘rah was in some parts of the North based on the account of Ibn Batuta (Akintola, 2001; Abdu,ll a1h998). By the last quarter of the nineteenth century when the Royal Niger Company came to exep lNororthern Nigeria for business transactions, Shīa‘arh had become the way of life of people. When Bthrietish came, they met Sharī‘ah in full force in the North. The evidence is ctaoined in the treaty signed by the Shehu of Borno, Umar ibn Muhammad al-Amin Al-Kanem with tBheri tish. The treaty datedt h7 Shawwal, 1267A.H. (5th August, 1851). Shehu said: “We shall set downs tthipeu lations and answer them according to the principles of the Sīh‘ahr”. Henry Barth was also warned not to bring eri ththe Bible or alcohol to Hausaland. Shī‘ahr became fully entrenched during the Jihad of mUatnh Dan Fodio (Akintola, 2001; Abdullah, 1998). As regards the Southern States of Nigeriae, athpplication of Sharia Law started from 1830CE. Some believed Islam entered the Yorubadlaunridn g the reign of King Mansa Musa of Mali (d 1337CE). Al – Masri and Doi said Ahmad mtioened the presence of Islam in Yorubaland in his work (Al –Kashf al–Bayan…). Ad aaml-Iloriyy mentioned that the mosque built by Muslim Missionaries was in 1550 A.D dur inthge reign of Alaafin Ajiboye. In the Southern part of Nigeria, Oba Momodu Lamuye (18 8109 0–6) established Shī‘aarh court in Iwo city. Oba Oyewole, the Akirun of Ikirun had an kAalili Court presided over by Mallam Bako from Ilorin. Oba Abibu Lagunju of Ede establishae dC ourt and put Alkali Siddiq from Ilorin as the Judge (Abdul-Wahab, 2006; Abdullah 1998). Ien Ethdo and Eastern States of Nigeria, the role played by Jihadists to spread Islam and eishta bSlhaīr‘ah was recognised. During 1881– 1910, Oba Momodu I of Agbede in the Eastern Stoaft eNsi geria destroyed all idols in his area with the help of the Jihadists from the North. Athlel se accounts testify to the presence of Islam and the application of Shīa‘arh in Western Sudan particularly in Nigeria (Akoinlat, 2001). The Muslims had been governed by Sī‘ahha rbefore the coming of the Christian slave masters who colonised Nigeria and other countrTiehse.y met the Shaī‘ar h in full force both in the North and the South. The London Times of 18e8s6t iftied that when the Royal Niger Company reached Northern Nigeria in theth 1C8entury, it found a well-organised system of justice. They said: “These people have their owwns land customs which are better adapted to their condition than the complicated system of iBshri tjurisprudence”. The Shīa‘arh was suitable to the life of Muslims before the colonial mastecrasm e with their legal system. Colonial Governor Moloney also testifies to this fact wheen shaid: “The Muslims are the most orderly, intellectual and respectable class of citizens coosmedp of the Yoruba”. Blyden, Governor Carter also said “The Muslims are, as a rule, the moset llinget nt portion of the country”. The 95 proclamation of 1900 section 20 of the Supreme tC oOurrdinance enacted by Lord Lugard stipulated that: “The Court shall always apply th (etmhe Shaīr‘ah Custom Laws) in all matters relating to Marriage and the family, land tenurneh, eiritance and succession”. They gradually confined the application of Shī‘aarh law to family personal law (Abdul-Wahab, 200A6b; dul- Rahmon, 1982; Doi, 1984; Ruud, 2003). That wasb tehgei nning of reducing the all-embracing power of Shaīr‘ah. This happening was not only in Nigeria buto a ilts happened in many Muslim countries. Islamic law was abrogated in many Muslim ctoriuens such as India, Egypt, Turkey, Albania and Nigeria. Where it was not abrogated totall yw, aits confined to the area of family personal law. In India, up till 1791, fullḥ add penalty was practised. However by the middle oef 1th9th century, all the entire Shīa‘arh system was abrogated except the ones rela tpeedr sto nal family laws such as marriage, divorce and inheritance. The colonialists also cancelled totally ahlle t laws of Shaī‘rah in Turkey. It was the Authoritarian dictator, Kamal Ataturk (1881- 193t0h)a t forced Turks to drop Shī‘arh which Sultan Abdul Aziz formulated and implemented in l ffuolrce in 1869. The Turks replaced Sharī‘ah with Swiss Law. The same thing happened to Mccooro, Tunisia and many other Muslim countries. Shaī‘rah was totally abandoned in some Muslim count rIite ws.as partially practised in some other Muslim countries. In some Muslim couenst,r isome Shīa‘arh principles were changed to suit the whims and desires of the colonialisntsd athe brain-washed rulers. For instance, a second marriage during the life time of the firsifte w is a prohibition and attracts a penalty in Tunisia. The imposition of English law had a deavatinstg effect on the Shīa‘arh. Many cases involved Muslims have been taking to the convenatli ocnourts. They were decided not in line with the Shaīr‘ah but in accordance with the English Law. Somes lMimus have been making serious efforts to reintroduce Sīh‘ahr in all aspects of public, private, social, eocmonic, spiritual and international dealings. It is their fervent iebfe lthat in Shaīr‘ah lies the solution to all the problems facing the world today. The demand for Shīa‘arh started around July 28, 1894 (Akintola, 2001b;d Aullah 1998; Abdul-Rahmon, 1982) when the Lagos Muslim demanfdoer dS harī‘ah. They petitioned the colonial ruler demanding that they should be jud gine daccordance with the Shī‘arh Law of Islam as reported by the Lagos Weekly Record. fA tsh ait was enough, they also submitted another petition in 1923 demanding the British olovredrs for the introduction of Shīa‘arh Courts. In 1938, a group of Islamic scholars requestedt hfoer introduction of Shaī‘rah. In 1948, Ijebu- Ode people under the umbrella of the Muslim Consg roefs Nigeria wrote to the Governor of Nigeria demanding for Shīa‘arh. They were tired of being subjected to Commoanw Li.e. the Christian Law. The former Chief Justice of Nigeria, Mr. Jicues t Brooke as the head of the Brooke Commission of Inquiry established by the Governm teon ltook into some national and burning issues received a memorandum from the Muslim Cosnsg roef Nigeria demanding for the establishment of Shīa‘arh. They demanded unequivocally for shariah co “uWrte: , therefore, pray this Commission to grant our request for a sep aMrautselim Court…” During General Gowon’s time as the head aotfe s t(1960 – 1975), the same demand was made but he used his position to carpet the vooicf easg itation. At the All–Nigeria Judges’ Conference held in Lagos in 1972, it was part so fc iotmmuniqué to establish a Federal Sī‘ahha r Court of Appeal as the final court of appeal asa rdesg the cases of Islamic Law. 96 During the time of General Muritala Muhamm(e1d9 75/1976) the Constitution Drafting Committee (CDC) was set up. Sīh‘ahr was entrenched in its proposal because of ethmea dnd for it by Nigerian Muslims. It was stated in the prosaplo that a Federal Shī‘arh Court of Appeal as well as a Shaī‘rah Court of Appeal in each state of the Federa tihoant wanted it may be established. Before his death, Muritala approveed pthroposal for the establishment of the Federal Shaī‘rah Court of Appeal and a Federal Court of AppeBault. after his death, Obasanjo who took over the mantle of leadership of the croyu ndtropped the establishment of the Federal Sharī‘ah Court of Appeal and signed into law the Fed eCroaul rt of Appeal which is now called Court of Appeal (Cap. 75, Law of the Federal Relipcu obf Nigeria 1990). In 1979, Alhaji Ismail Babatunde Jose and aAji lhMKO Abiola represented the entire Southern Muslims in working out with the Northernu sMlim representatives on the question of Shariah provision in the 1970 Nigerian Constitu.t ioI n 1989, the Nigerian Federal Military Government banned the discussion of Sī‘ahha.r When Ahmad Sanni Yarima of Zamfara State tshaew v igour with which the Shīa‘arh was being demanded, he quickly made it his campaignm pisreo. People voted for him massively and he won the election. He fulfilled his promise byu nlaching it on 27th October, 1999. Other states declared their intention to join Zamfara. Kebi, bYeo, Kano and Gombe declared their intention to follow Zamfara’s example between 1999 and 20I0n0 1. 996, the Shaī‘rah debate echoed during the Constitutional Conference under them reg oi f the Late General Sanni Abacha. It was reechoed during General Abdul Salami Abubakr. hAells te accounts indicate that Muslims have been demanding Shī‘aarh for long. There is no single regime in this nctoruy that did not receive a Sharī‘ah petition from the Muslims. Article 18 of the Uitend Nations Declaration of Human Rights signed on 1th2 October, 1948, asserts freedom of thought, concsec ieand religion. It particularly affirms the individual’s right to wohrisp, observe, teach and practise his religion. The Muslims demand for the Sīh‘ ahr Law to govern their lives. Failure to apply tShhearī‘ah Law on Muslims has adverse consequence on themhis i nw tord and the hereafter. They want it to guide them and they do not prevent anybody fraopmpl ying any law on himself or herself inasmuch it does not affect them as Sī‘haahr does not affect non-Muslims. The provision s of Sharia are speedier and more effective than any- maade laws. The Muslim lands had been guided by legatl esmy scalled the Shīa‘ar h in all aspects of public, private, social, economic, moral, sociadl ainternational dealings. However, all golden rules of the Shaī‘rah were dropped when the British, French or Duicmthp erialists came and changed the will of people. Many voices were ra iasgeadinst all European ways of governance that are against the Shī‘arh but the imperialists carpeted the few Muslimys fibre by force. Through the hues and cries of some committed Muss, liMmuslims were allowed to practise the Islamic personal law. They were able to succeedc ainc elling all the other aspects of the Sharī‘ah such as criminal law aspect of Sīh‘aahr, etc. Through the support received from some Muslim rulers and the Muslims who were trained urn tdhe influence of these new rulers i.e. the Europeans, the European system of commercial laws mwade to replace Islamic law of transactions in all the areas colonialised by tmhep eirialists. Such areas included South-East Asia, East Africa, West Africa and the Ottoman Erme.p i It could be recalled that ottoman empire oidnutrced Tanzimat between 1839 and 1876. In 1850 and 1858, French commercial code and Frenncha l pceode were introduced to replace Islamic commercial law and thḥe add punishment of the Shīa‘arh. Egypt also did exactly the same thing with the Ottoman Empire. The Italian Ganedrman influences were also noticed in the 97 Muslim lands. By 1883, three-quarters of the lesgyaslt em in Muslim lands were replaced by the European legal system. In 1862, Indian penal code was made to rep tlahce Shaī‘rah which was in used for many centuries during the Moghul rule. Sudan, Moroccuon, iTsia, Nigeria, etc were also affected and influenced by the colonial rulers such as Frencuhr, oEpean and others. Whatever little of Sharī‘ah that is in force is in the area of family lawAf.t er the Second World War, Muslim countries started gaining their independence frhoemir tcolonial masters. Some declared Islamic law as their source of legislation while others cceallned totally the Shaī‘rah courts. As regard Sharī‘ah family law that is being practised by many Mimus lcountries, the law was unchanged and uncodified in some countries (Doi, 1984; Ru2u0d0, 3). It was changed through modern legislative process in some parts of some coun ter.iegs. Zamfara in Nigeria. In some other countries, this aspect of the Sīh‘ ahr was abandoned and replaced by the modern tl aisw .o Inly in Saudi Arabia that both the Shī‘ahr family law and Islamic penal law are used. Qr,a tthae two Yemens, Bahrain Kuwait etc use the Sī‘haahr to a large extent. The Maliki Family law operates unchanged iing eNria, Niger, Senegal, Mauritania, Mali, Guinea, Chad and Gambia. Hanafi Family law in Afngishtaan while Maldives use the shafii family law. In Turkey and Albania (ottoman Empir eth),e laws have been secularised. The muslims in the Soviet Union, Philippines, Kenya aTnadnzania are subjected to secular family laws. The Islamic family law has been reformed aomr ptered with. The modernists changed the Sharī‘ah to suit their imagination. They rejected, tweids tand modified the legal injunctions of the Qur’ān and the Sunnah. Summary We have examined Shī‘aarh as the divine law laid down in the Qāunr,’ the Sunnah and other acknowledged sources. The roles of Sī‘ahha rsuch as security of life and property, decent modes of dressing, vibrant economy, poverty eratidoinc,a humility, justice and prevention of famine, terrorism etc are discussed at length. aTphpeli cation of Shaī‘rah started in Nigeria in 1058 CE through Kanem–Borno. However, the colosntisa lci ancelled or dropped a substantial part of the Shaī‘rah which had been guiding all aspects of publicd apnrivate dealings of Muslims their arrival. Muslims have been makingn ftrica efforts to reintroduce Shīa‘arh to guide them. All their attempts have been discusins ethdi s lecture . Post –Test 1. Give the meaning of Shīa‘arh? 2. What are the roles of Shī‘aarh in a Muslim life? 3. Discuss Shaī‘rah in Western Sudan including Nigeria and the ncioalloists. 4. Is Shaīr‘ah for non-Muslims? References Abdul-Wahab, T.A. (2006). Application of Shī‘arh in Southern Nigeria: The Hoax the Truth. Shaki. Al Furqan Publishers. 98 Abdul-Rhmon, M. O. (1982). Perspectives in Islamicl aw and Jurisprudence.Ibadan.NAMLAS Ruud P. and Maarten B. (2003). Islamic Criminal L ianw Nigeria. Ibadan: Spectrum Books Limited. Rashid S. K. (1988). Islamic law in Nigeria: Apcpaltiion and Teaching. Lagos: Islamic Publications Bureau Abdullah Y. (1998). Sharia in Africa. Ijebu-Ode: eSbhiotimo Publications Akintola I. (2001). Shaī‘rah in Nigeria . Ijebu-Ode: Shebiotimo Publicatio ns 99 LECTURE FIFTEEN Muslim Women and Modern Reforms Introduction Islam is accused of regarding women as inferiomr eton . People blamed it for all the misdeeds and oppressive behaviours of men towards women t.h Aeslle accusations led to the formation of women liberation movements. In this course you wunildl erstand the status of women in Islam. The enviable position which Islam has given to wno mmeore than 1432 years ago will be discussed. No religion except Islam accords womhen ret cognition that befits them. All the rights and privileges given to women in Islam anreiq ue and discussed in this lecture. You will also learn that all the agitations of modernist sr eagsards the status of women have been taken care of in the Quār’n and the Sunnah. Objectives At the end of this lecture, you should be able to: 1. understand that Islam has taken care of alla tghitea tions of modernists as regards the status of women. 2. understand that Islam is the only religion tahcact ords women the recognition that befits them. 3. state some of the rights of women in Islam. 4. list the agitations of the modernists as reg athrdes status of women and the Islamic perspective/solutions towards the agitations. Pre-Test 1. What are the agitations of the modernists as resg tahred status of woman? 2. How can you respond to their agitations from thlaem Isic perspective? 3. List and explain the rights of women in Islam. CONTENT Muslim Women and Modern Reforms When the colonialists entered the Muslim count ritehse,y took the deplorable conditions of women to their own benefits. It is unfortunate ththaetse colonialists presented themselves as people who fight for the cause of women. In theoiru nctries, they failed to attain the same freedom until they fought for it. They accused mIs loaf regarding the woman as inferior to man. 100 They blamed Islam for all the misdeeds and oppvre sbsei haviours of men towards women. All these accusations led to the springing up of womlibeenr ation movements in some Muslim countries. An attempt by Muslim women to imbibe tdhoctrines of their colonial master led them to the formation of a special class of womehno wregarded themselves as modernists. This group believes women should not only dress like mbye ngoing about in shirts and trousers, but also bear their fathers’ names. They also want women not only to participiant ep olitics but also hold important positions particularly the headship of a country. To puti mit psly they want women to become presidents, chairmen to mention but a few. They also want wo mtoe npractise polyandry, since men are allowed to practise polygyny i.e. they want womoe nh at ve as many husbands as men could have wives. The modernists also advocate that womenu lds hgoo out and work. This group has been influenced by social ideas that are foreign to mIsicla culture (Al-Hibri, 1997; Ahmed,1992; Feillard, 1997). The modernists cajole gullible weonm into the idea of absolute freedom, and thus has led them to confusion, sexual harassmnedn rta ape. Many houses have been broken as a result of the freedom and rights which modernisrtes calaiming and proud of. The rights and privileges which the colonial women got after lodnigs cussions, fighting, forceful pressure, imprisonment etc have been bestowed upon all wovmoelunn tarily without any form of force or revolt more than 1432 years ago. It should be mentioned that some of the atiogintas of modernists as regards the status of women have already been taken care of in theā Qn uarn’ d the Sunnah. It must also be mentioned that no religion except Islam accords women theo grneiction that befits them. Our discussion is based on the aspects of the rights of women asa icnoendt in the Qurā’n and the Sunnah. Whatever rights modern women enjoy fall short ofa wt hIslam has established by a Divine decree for the Muslim woman. Islam has establisfhoer dw oman what suits her nature and protects her against disgraceful circumstancesif eo.f Sl ome of these rights are discussed in the following passages. Mode of Dressing Women are to dress decently in Islam. Modest dnregs isi not for Muslim women alone. Muslim men are also enjoined to dress modestly and deyc. e nTtlhe modernists alleged that Islam enslaves woman and reduces her beauty by comma hnedrin tgo put onḥ ijāb. This is not correct. The baselessness of the allegation is shown inm tehaen ing ofḥ ijāb. ḥijāb in Islam means to dress in a way that all parts of the body are ceodv erxcept the face and the hands according to the Hadith of the Prophet: “Aisah reported that Aas’ mdaughter of Abubakr, came to see the Prophet with a thin cloth over her. The Prophent etudr aside from her saying: “O Asmaa’ when a woman reaches puberty, it is not good that any opfa hrter (body) should be seen except this and this” (Pointing to his face and hands) (Al-Hafiz9,9 16). The Qurā’n also says: Tell the believing men that they should lower t hgeaizre and guard their modesty: that will be most conducive to t hpeuir ity---(and) verily Allah is aware of all that they do. And tell the believing women that they should lo twherir gaze and guard their modesty and not display their charmns p(iublic) beyond what (must ordinarily) appear thereof; he, nlceet them draw their head coverings over their bosoms. Antd tlheem not display (more of) their charms to any but their bhaunsds, or their 101 fathers, or their husband’s fathers, or their so tnhse,ir husband’s sons, or their brothers, or their brothers’ sonsr, toheir sisters’ sons, or their womenfolk, or those whom they ruigllhyt fpossess, or such male attendants as are beyond all sexuarl ed,e osri children that are as yet unaware of women’s nakedness; eatn dth el m not swing their legs (in walking) so as to draw atteont ito their hidden charms. And (always), O you who believe—ofa yllo u—turn unto Allah in repentance, so that you might atttaoi na happy state (Q24: 30 – 31). These instructions are not only for women,n maere also covered. Dressing is important because the way a person dresses tells a lot athbeo upt erson. Therefore, Islam recommends modest dressing habit as well chastity for bothe ms alnd females. If a woman dresses decently and modestly, people will respect her. Dressingl awlesol reduces the temptation of staring at the opposite sex or using the eyes for seduction, ahnisd int turn will reduce unlawful sexual relations. In Islam, man is expected to cover thneaikredness particularly from the navel to the knee. If a woman dresses modestly, she would obte cptred against unwanted approaches. The adoption of modest dressing is to preserve thei tdyi gonf woman when a woman dresses decently and avoids putting on back-less, “body-hugs” “haont tps” mini skirt and “top-less” dresses, “the area-boys”, the rapists and the like will not apapcrho her. She will enjoy a great degree of respect. Non-Muslims also appreciate Islamic moodf edsr essing. Equality in the Procreation of Humankind Both man and woman are partners with regards tcor eparotion. The former is the father while the latter is the mother. In relation to this partnheiprs: Allah says: Q4:1 “O mankind! Be dutiful to your Lord, Who created you from a single persona (mAd), and from him(Adam) He created his wife (Eve), and from them both He created many manedn women and fear Allah through Whom your mutual (rights), and (do not cut the relasti oonf) the wombs (kingship). Surely, Allah is Ever an All-Watcher over you”. Education Education is very important in the life of a Mus,l im ale and female. In fact, the very first revelation of the Quār’n to the Prophet started with the command to r.eea. dt oi seek knowledge (Q96: 1 -5).The Prophet also said: “The searchk nfoorw ledge is a compulsory duty for every Muslim, male and female” (Al-hafiz, 1996; Akinto la2;001). All these injunctions point to the fact that women should be educated. Even durin ge athrley days of Islam, many male and female members of the community were encouraged to ac qeudiurecation. The resultant effect of the instruction was that a good number of men and wo mgrenw up to become giant scholars. Aisha, the Prophet’s wife, was a great scholar wtahuog ht many companions and other Muslims the Qur’ān and the Sunnah. Even in Nigeria, the case of aAas, mthe daughter of Uthman Dan Fodio is an example. She was well educated in ltahses ics of the Arab and classical world. She was well versed in Arabic, the Fula language, H aeutcs.a She was a leading scholar. Nana Asmau whose reputation was not hidden in West Africa we riont a prose about the experience she had during the Fulani Wars. She was a counselor tob hroetrh er when he took the caliphate (Body, 102 1999). Therefore, when Islam enjoins the seekin gk noofwledge upon Muslims, it makes no distinction between man and woman. Rights of females before birth up to their adolescnece Islam gives woman her rights from the time she nwoats i n existence up to her adolescence. Her right before birth Islam advises Muslims to be careful when chooshinegir tpartners. They should give priority to religion and character when choosing their part.n eIfr sthis advice is taken, their children will have righteous and caring parents. This will ha vpeo sitive impact on the said children too. Her right during pregnancy The unborn baby is also protected from being abdo drtuering pregnancy. When a person throws a stone at a pregnant woman and the woman die dP, rtohpehet decreed that the compensation (diyyah) should be paid for the unborn child (male or felem) a(Bukhari) Her rights during childhood During the pre-Islamic period, female children w beureried alive (Hitt, 1984). If a woman should give birth to a female girl, she would feel asha,m gerdieved and dejected. The Qāunr ’gives the vivid picture of the situation when it says: “Andh ewn the news of (the birth of) a female (child) is brought to any of them, his face becomes danrdk, hae is filled with inward grief. He hides himself from the people because of the evil of twhhaet reof he has been informed. Shall he keep her with dishonor or bury her in the earth? Cerlyta, inevil is their decision” (Q16: 58 – 59). This attitude was reformed by Islam by considertihneg birth of a baby girl as a blessing from Allah. Allah mentions female first when he is cnagll iour attention to His blessings with regard to giving birth to children. He states: “To Allah lobnegs the dominion of the heavens and the earth. He creates what He wills. He bestows fe mchailldren to whomever He wills and bestows male children to whomever He wills” (Q 42: 49). T Phreophet is reported to have said: He who trains a boy trains one person but he who traingsir l ah as trained the whole world. This is to show the status of women in Islam. Choice of Husband In Islam, the consent of both the men and the wo mis eann essential element of marriage. A marriage contracted without mutual consent of twhoe pt arties is null and void (Q2: 232). It is allowed for a man to give his daughter in marriatog ea person of his wish according to Maliki school of Islamic jurisprudence. Care must be t ankoetn to abuse this provision. This is based on the assumption that the father has better expeer iaendc wisdom to make a good choice. It is also believed that the father loves his daughter andw hoeu ld not injure her interest. All these assumptions are based on the ground that a gir l bme acyarried away by emotion and youthful fantasy to make a wrong choice. However, if sheli kdeis the arranged marriage, it shall be annulled based on the prophetic tradition. The hPerot pis also reported to have said: “the widow and the divorced woman shall not be married uhnetiilr t order is obtained, and the virgin shall not be married until her consent is obtained (Bukh ari). 103 Property Rights Islam grants woman equal rights to earn and ownp eprrtoy. She has the right to dispose off her property according to her wish without the conotrfo al ny man. She can enter any lawful contract which a man can. She is equal to man in carryeinsgp ornsibilities and in receiving rewards for her deeds. Spiritually, woman is not less than min athne struggle. (Feillard, 1997; Minault, 1997; Wadud, 1999). In the same vein, if she commits na osr i an offense, she receives the same punishment a man would receive if he were to com thmei toffense. The Quārn’ says: “…Never will I cause to be lost the work of any of you, hbee male or female … “(Q3: 195) “…..Men shall have a benefit from what they earn and women shhaavlel a benefit from what they earn…” (Q4: 32). Freedom of Expression Women are allowed to express themselves in IslSamhe. has the right of expression as much as man. It is not right to condemn the sound opiniofn as woman because of her feminity. She also has the right to consult and to be consulted (Q 3 482 a:nd Q 3: 159). Her feminity constitutes no obstacles to express herself. During the timeh eo fP trophet and the caliphs, women did not only express their opinions freely but also put forwsaordu nd arguments to marshall their points (Q 58: 1-4, 60: 10 – 12). A specific example took pel adcuring the time of Umar, the second Khalifah when he said from the pulpit in the precsee nof a large crowd: “I will fine any man who gives his bride 500 dirhams or more as dowry. Haell sbhe made to give the same amount as that by which his dowry exceeds thMea hru as – sunna h(traditional dowry) to the public treasury”. At this, a woman who was at the foot of the puclprite d out in a loud voice her objection to Umar’s statement saying: “Your proclamation conitcrtasd God’s law: for does not suratul - Nsa” (Q 4:20) say: “But if you decide to take one wiinfe p lace of another, even if you have given the wife you put away a talent of gold as her marriapgoert ion, take, not the least bit of it back?. How can you, then, in contradiction of the Divinaew L which has stated that it is permissible to give more than the legal minimum marriage portimona,k e your proclamation?” Umar could not deny the sound argument of this woman and withdhriesw p roposition saying: “It was a man who erred and a woman who uttered the truth” (Doi, 1; 9A8b4dati, 1975)). This is a height of dignity that Islam hass tboewed on the female sex to enable them express their opinion. From the example cited, the womans wabale to lift her voice in public against his proposition and this made him to reverse his owbnl icp u tterance. The Right of Inheritance Before Islam, woman was not allowed to inherit huesr band children and other near relatives. She was part of the property to be inherited by .m Isalnam reforms the bad culture and allows females whether they are wives or mothers, sisotre rdsa ughters to inherit their near relatives according to degree of relationship and the numobf ehre irs. Allah has given them this right of inheritance. Nobody has any gut to deprive the mth iosf right. Will cannot be made more than one third of the deceased’s property; and it sh onuoltd be made to deny the rightful heirs of their shares. There are variations in the rights of inhaenrcite between man and woman due to the differences which exist between the financial renspiboilities of man and those of women. Man receives two shares while woman gets one only. eT ahreer many reasons for the variations. Man is responsible financially for the complete mainatnecne of the whole family, wife, children and 104 other dependants. This role is not applicable tom awno. Virtually, all categories of females are recipient. For instance, a wife receives from huesr bhand; mother receives from her son; a daughter receives from her father; a sister recse ifvroem her brother and a female without relations receives from the society. Whatever sahren se will be hers to take care of her personal expenses particularly the luxurious things that lsikhees to have. Inheritance is a sort of aid that must bet ridbiusted according to the urgent needs and responsibilities. Man is in greater need than wo mfoarn bearing more burdens of all kinds of financial responsibilities. This is not the caset hw ai woman. Woman is given inheritance because she is related to the deceased. Askingm oane and two women to bear witness to contracts does not mean woman is inferior. It ipsr eacautionary measure to guarantee honest transactions that if a woman of the witnesses ftosr, gthee other will remind her. Privileges of a woman Exemption from some religious rights is one of eth epsrivileges. Women are exempted from (salat) prayers altogether during menstruation.y T ahre not to refund the missed prayers when they are pure. They are also exempted from fasdtuinrgin g childbirth and menstruation but they will refund the number of days they missed aftemr Radaan when they are pure. Mothers enjoy more recognition in the sight of God (Q31: 14 – Q154,6: 15). Woman is entitled to (75%) three- fourths of the son’s love and kindness while ma ne nistitled to one-fourth (25%). Paradise is believed to lie under the feet of the responsibloet hmers. Woman is also to be maintained completely by man. If she wants to work and conuttreib financially to the running of the home, she is allowed. It is praiseworthy and commend abbelfeore Allah if a woman who is financially capable assists her husband at hoTmhee. re are some women who do not consider their husbands to be in waterloo by marrying them and don ot make life difficult for them . A few women are so good to the extent that their husban dwsould leave the affairs of home for them and they would manage them efficiently, effeicvtely, religiously and without arrogance to their husbands. History has shown thta children of such women are always great. The corollary of these statements is that womeon dwoh not claim all the rights by making life difficult for their husbands would have thenira mes and those of their children written in gold. Asking a man to lead compulsory prayers dnooets m ean he is superior to woman. It is a matter of avoiding distractions and evil thoughtast tcan emanate when a woman is leading. It is also to maintain concentration, harmony and ordmeor nag worshippers. So, it is a regulation of discipline and not a sign of importance. For incseta, the heads of state, men of timber and caliber, governments, commissioners etc stand bde ahnin Imam and shoulder to shoulder to the pauper. This is to show that it is the regulatoiof nd iscipline and not a sign of importance. Adoption of Marriage Names In common law or in the Western society, a womans tm durop her father’s name or maiden name once she is married. She has to adopt her hussb afanmd’ily name. Many of them publish their change of names in newspapers. However, women llaorwee ad in Islam to bear their fathers’ names even after their marriage. Some women adird htuhseband’s name to her father’s name instead of dropping the latter. This is also allod wife they agree on the adoption of compound name. Islam ordains that every child must be c abllye dhis real father’s name. If a person’s father is not known, he must be called a brother in f a(iQth3. 3:45). If a divorce should occur, the 105 woman needs to change her name again. Howevehre, ifh ass been carrying her maiden name, she does not have to change it again when thear ed iivso rce between her and her husband. ADOPTION Islamic law enjoins parents to give a child a naamt bei rth. The parent is enjoined to give a good name to their children as this will remain theier nidtity in this life and the hereafter. On the Day of Judgement, Abu Dawd reported that the Prophiedt: s“Yaou will be called on judgement day by your name and your father’s name. So, choosiece a n name” (Abu Dawd No 4945). Children should be called by their names and their fathnearsm’ es as instructed by the Qāunr ’even if we adopt them. This means adoption can never givers ao np ethe status of natural son (Wadud, 1999; Tucker, 1998) Zayd ibn Harithah whom the Prophet adopte hdi sa son was given to Zaynab as her husband. But the marriage did not work and they had to saetpea. rThe Prophet later married Zaynab because she was left alone. This is an indicathioant atn adopted son can never be a real son. Therefore, adoption does not bring about any of ttihees and effects created by blood- relationship. By implication, adopted children m unsott inherit in the estates of their foster parents and the foster parents should not inhne rthit ei estates of their adopted children. Both can make aw asiyyah( will) of not more than⅓ of their property for each other. Sexual harassment Another area where women are abused and they amreo uclring for reforms is in the area of prostitution. Innocent female adolescents are uasse pdr ostitutes. Their agents benefit from this illegal trade. It must be explicitly made clear tt hIsalam has prohibited adultery and fornication more than 1432 years ago. Prostitution is condem inn eitds totality in Islam as contained in the Qur’ān (Q23:17) and the Sunnah. From the foregoing, it is clear that all trheefo rms looking for by women nowadays have been entrenched in Shīa‘arh more than 1,432 years ago. It must be menti otnheadt the rights and responsibilities of a woman are equal to those mofa an though they are not necessarily identical. If woman is deprived of one thing in some aspecf tlsif eo, she is fully compensated for it with more things in many other aspects. In Islam thse rneo i difference between man and woman. Only excelling in virtue, piety, spiritual and ecthail qualities can make people, males or females stand out from one another. It is left to men awnodm en to strive and achieve that kind of excellence. It must also be mentioned that womeen ina r no way inferior to men. Their abandonment of religious precepts in political, iaslo, ceconomic and spiritual matters, and the negative attitude of Muslims and their leaders tphuetm in this sorrowful situation. Therefore, there is no need to devise a way of accommodahtien gr etforms of the modern women i.e. the modernists. All their agitations have been takerne coaf by the Shaī‘rah. Efforts should be made to implement what the Shīa‘arh has enjoined more than 1432 years ago. 106 Summary We have examined the agitations of the moderniss trse gaards the status of women in Islam. We have also examined all rights given to womenIs lianm . All their agitations have already been taken care of in the Qāunr ’ and the Sunnah. Some of their rights are ownipe rosfh property, education, equality in the procreatio nh uomf ankind, choice of husband, freedom of expression and bearing their father’s names in stoefa dtheir husband’s names as their surnames. No religion except Islam accords womhe nr etcognition that befits them. Islam has established for woman what suits her nature antde cptrso her against disgraceful circumstances of life. In Islam there is no difference between man and awno.m Only excelling in virtue, piety, spiritual and ethical qualities can make peoplel,e ms oar females, stand out from one anoth er. Post-Test 1. Mention some of the agitations of the modernistsm/weno liberation movements. 2. What are the Islamic perspective to the agitataionnds complaints? 3. Is it allowed for a married woman to bear her far’tsh neame as her surname? 4. Is search for knowledge compulsory for both manleds faemales in Islam? 5. Is there any equality between man and woman inp rtohcer eation of humankind? 6. Discuss the rights given to females right from bre fboirth up to their adolescence. 7. Can a woman own property in Islam? 8. Give an example of a situation that indicates wthoamt en are free to express themselves in Islam. 9. Explain the reasons for the variations in the rsig hoft inheritance between man and woman in Islam. 10. List and explain 4 of the privileges of a womanIs ilna m. References Al-Hafiz b. 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