Modernity

2.1 One tradition encapsulating the world

The challenge of modernity that faced the Islamic traditions of legal and moral reasoning is characterized, even in this one volume, differently by different authors.

If this was a crisis, it hid an opportunity. The modern Islamic legal tradition sharpened some of its old tools to decide which consensuses were meant to survive the change in con­ditions in modern life. In the remainder of this essay, we will take up three of modernity’s questions that touch on matters either perceived to be, or having certainly been, matters of consensus in the past.

2.2 Apostates, mixed marriages and inheritance laws

The subsequent three short sections (2.2.1, 2.2.2, 2.2.3) will cover the following questions:

1) Whether an individual apostate, who has been proven beyond doubt to be an apostate, must be given an opportunity to repent and then be executed — which is a reported view that enjoyed the consensus ofjurists.

2) Whether a non-Muslim man’s marriage to a Muslim woman may be valid, albeit temporarily.

3) Whether a rearrangement of old inheritance laws to fit the new structures of modern Muslim families is acceptable.

While consensus is cited as the foundation for executing individual apostates and the imme­diate repudiation of any marriage between a Muslim woman and a non-Muslim man, and is similarly seen as the basis for the core of inheritance laws based on determined fractional shares, modern scholars were not absolutely sure a consensus was in fact operative in all these cases.

1) A clear statement of each question and its answer, attending to all conditions and qualifications.

2) The nature of the reported consensus, its sources, and whether both the doctrine of consensus and its foundation was taken for granted.

2.2.1 Wars and political crimes

Fiqh manuals repeat a version of the following statement: That the execution of apostates is based on consensus. The purported consensus, however, is a consensus among the early com­panions that the apostates of Arabia must be fought. We have already mentioned this when we considered how this consensus was generated; it was a matter of disagreement among the companions, and a consensus to follow Abu Bakr’s lead emerged from the deliberation. But there is no question that the object of consensus is ‘collective punishment’ of apostates by waging war on them. In actual practice, and this is another matter, Abu Bakr did not give the same instruction to wage war discriminately; he asked the leaders of each army division to camp at a distance and test whether the community that has been reported to revolt against the Muslim community did in fact conduct their lives as Muslims, as attested by such activ­ities as the call to prayer. In any case, there is no consensus that individual apostates may be executed.

Yet, if war constitutes what American lawyers would call ‘due process’, by which an in­dividual (fighter) may be deprived of life, the step may be taken to consider the execution of an individual apostate a sub-set case within the same consensus. Juristic manuals do sup­port this understanding. In books on ‘ridda’, the subject is clearly the execution (rather than the waging of war) of individual apostates, with the caveat that an invitation to ‘repent and retract’ be issued to this apostate before execution. Sufyan al-Thawri (d. 161/778) is said to have demanded that this invitation be extended without time limit, apparently contradicting the punishment of execution.

Again, moving forward, the question remained whether a consensus to execute individ­ual apostates that derives from the initial consensus to wage wars against the early apostates amounts to anything more than a shell-consensus, so to speak, since individual apostates must come up in court cases that require laborious evidentiary and other judicial and ju­ristic tests.

Cases of individual or small group apostasy also confirm the suspicion that once this be­comes a judicial matter, each judge’s discretion moves to the centre of the legal discussion. There were even cases where disagreement arose among first-rate authorities within the same school of law regarding which acts or statements qualified as instances of apostasy. The Shafi'i authority Taj al-Din al-Subki’s (d. 771/1369) famous ruling to execute individuals who slan­dered the first two companions of the Prophet (al-shaykhan) caused a stir, because it appar­ently relied on stretching a principle that emanated from Maliki legal reasoning. Ibn Hajar al-Haytami (d. 955/1566)²² pointed out the discrepancy, raising doubt that a Shafi'i judge would normally be allowed to rule in the case in a similar manner. More than three centuries later, Ibn 'Abidin (d. 1252/1836) refused the very idea that one may execute in apostasy cases should there be any doubt in the matter.²³

Ibn 'Abidin sits on the cusp of modern life, as a century later, the fall of the Ottoman State and formation of national states gradually made an execution for treason more intel­ligible than an execution for apostasy. This is the context in which the consensus to exe­cute individual apostates was subjected to further scrutiny. The fact that ‘apostasy’ must be seen as a religious and a political crime muddied the water further. As things stand today, while claims that apostates may be executed based on religious dictum or fatwa exist, the support of political power is an essential element to make a religious ruling on the matter worthy of reflection.

2.2.2 Modern Muslim women and their marriages

Fiqh manuals also repeat a version of the statement that the prohibition of a non-Muslim man from marrying a Muslim woman is based on consensus. Not only that, in cases where two non-Muslims are married and the wife subsequently converts to Islam, her marriage to her non-Muslim husband automatically dissolves.²⁴

The tradition is a bit more complex here, compared to the previous question. The Prophet’s own daughter, Zaynab (d. 8/629), was married to a maternal cousin of hers named Abu al-'As b. al-Rabi' (d. 12/633) even before the Prophet emigrated from his hometown of Mecca to Medina. This emigration was the line of separation between the nascent Muslim community and the broader pagan community. When Zaynab left with her father, the Prophet Muhammad, she was in her early twenties. Her marriage to Abu al-'As, whose character the Prophet had opportunities to praise, did not dissolve automati­cally. In fact, their marriage is the reason for visits by Abu al-'As to the Muslim community during moments of conflict between pagans and Muslims, which led Hanafi jurists later to develop the ‘theory of aman’ or permission for temporary residence by non-Muslims among Muslims. Abu al-'As did ultimately convert to Islam and spent some time with his wife as two members of the same Muslim community. Be that as it may, the consensus is still reported to prohibit a) the initiation of a marriage involving a Muslim female and a non-Muslim male and b) the continuity of such marriage if it were to result from the conversion of a female to Islam without her husband’s conversion. The consensus is dated to the aftermath of the Zaynab-Abu al-'As arrangement, which preempts any argument against it from the Zaynab story.

Ibn Hajar al-Asqalani’s long commentary on Bukhari is one pre-modern source that an­ticipates the modern controversy.²⁵ Ibn Hajar tells us that Zaynab’s marriage to Abu al-'As spanned six years, during which the Prophet Muhammad did not repudiate her marriage to her husband. Muslim jurists, Ibn Hajar repeats, agree that a Muslim woman cannot initiate a marriage with a non-Muslim man, and that, should a female non-Muslim convert to Islam, while her husband remains a pagan, the marriage dissolves.

Ibn Hajar’s commentary takes the sayings and actions of the Prophet (Sunnah) as the foundation of the laws, which indicate in this case that the jurists’ agreement may not be in line with the Prophet’s practice, unless, as they say, this action by the Prophet was abrogated (cancelled and made ineffective) by a subsequent law. For jurists who follow the standard tradition of legal reasoning, this abrogation is a matter of consensus.

The Prophet’s practice in Zaynab’s case may have been a necessity in the beginning of the community’s life, in other words, and was later ‘abrogated’ (i.e. cancelled) by the Prophet himself when he denied any new marriages between a Muslim female and a non-Muslim male. Ibn Hajar does not always provide his own final answer to the questions he brings up and is, in fact, content to provide a full account of the disagreement in relation to the Proph­et’s tradition. Modern reformers will employ new kinds of reasoning from Muhammad’s tradition that reach different conclusions about what the law should be in modern times and in places where Muslims live among a non-Muslim majority.

2.2.3 Inheritance today

While consensus in inheritance laws is unavailable in many crucial matters, such as distribut­ing the inheritance of a man who left enate (maternal only), cognate (maternal and paternal) and agnate (paternal only) brothers, there is an overall agreement, for example, that siblings, males and females, distribute their shares at a ratio of 2:1 if they inherit as an agnatic famil­ial group (‘asaba).

On this question, debates rage. Most modern states have modified the old religious laws of inheritance to reflect the Muslim communities they serve. In places such as Indonesia, old instances of folk-laws (adat-laws) are already a modification of the simple 2:1 ratio.²⁶ In many Muslim countries, modern laws simply changed the inheritance schemes sufficiently to leave the old arrangement only a narrow window of application.

3 Conclusion

3.1 The legacy of consensus

'Abd al-Ghani 'Abd al-Khaliq (1908—1983) argued that consensus is the only foundation with which one can hold any legal doctrine without doubt. The language of the Qur’an and the Prophet’s Sunnah are matters of disagreement, at least if one is undeterred by the rules of traditional interpretation. Of course, within each madhhab or school of law, the options are limited by the school’s standards of legal reasoning. Once these restrictions are removed, no doctrine is immune to revision.

'Abd al-Khaliq’s is certainly a powerful modern reading of the institution of consensus. It is clearly a position of its time. More importantly, the increasing vulnerability of consensus to revision and reversal, for some modern Muslims, is a positive development; many decry it. In any case, the Sunni tradition of theoretical jurisprudence provides limited solace. If recog­nizable authorities in the law agree, as long as they distinguish their questions from those that have been matters of consensus earlier, this may serve as a foundation for new, stable laws.

3.2 The utility of consensus

Consensus remains a significant tool to measure the extent of a community’s tolerance of disagreement. Shi'i dismissal of consensus notwithstanding, consensus served, in the 'Abd al- Ghani 'Abd al-Khaliq interpretation just indicated, as a signifier of ‘secure knowledge’. 'Abd al-Khaliq argued that in no way could one be certain that a man may not take nine wives if it were not for the consensus that a verse that indicated that, at least in the aftermath of war, a man may take ‘two, three, four wives’ — given that the verse remained silent as to whether these were indicative of four as the absolute upper limit or indicative of an aggregate of the three numbers (2 + 3 + 4 = 9). This view is one we must take with a grain of salt, as our discussion has amply showed, but it has its successes, just as it has its limits.

3.3 The consensus doctrine in theoretical jurisprudence

The value of this study is to show how a legal system (or a group of interlocking legal systems, such as medieval Islamic law and modern Middle Eastern laws) fills its own gaps and where its future may be going. It is true that Islamic law did not always look or function like a legal system with a community of scholars bound by agreements that can be established, tested and employed to create a foundation for consistency. And, while we have a good number of cases where even major Muslim muftis and judges were ‘corrected’ by contemporaries and subsequent generations of scholars for ruling against a juristic consensus, there were no judicial institutions that could test whether consensuses are observed. There was, after all, no supreme court for Muslim communities or even for each madhhab to function as arbiter.

Notes

1 Muhammad b. Bahadur al- Zarkashi, Al-Bahr al-Muhit fi Usul al-Fiqh, ed. A. Abu Ghudda, vol. 4 (Kuwait: Ministry of Religious Affairs, 1992), 436.

2 Ibid.

3 Ahmad b. Idris al- Qarafi and Muhammad b. Zakaryya al- Razi, Nafais al-Usul Sharh al-Mahsul, ed. 'Abd al-Mawjud and Muwwad (Riyadh: Baz Pub., 1995).

4 Qarafi, Nafais, vol. 6, 2561.

5 Qarafi, Nafais, vol. 6, 2544—6.

6 Qarafi, Nafais, vol. 6, 2549.

7 Qarafi, Nafa’is, vol. 6, 2552—3.

8 Qur'an: 4:115-16.

9 Zarkashi, Al-Bahr, vol. 4, 527-8.

10 Abu al-Ma'ali 'Abd al-Malik b. Yusuf al-Juwayni, Al-Burhan fi Usul al-Fiqh, ed. 'Abd al-'Azim al- Dib (Doha, Qatar: Matabi' al-Da'wa al-Haditha, 1399/1980).

11 Juwayni, Al-Burhan, vol. 1, 688-9; art. 632-3.

12 Juwayni, Al-Burhan, vol. 1, 685-8; art. 634-5.

13 Juwayni, Al- Burhan, vol. 1, 672-3; art. 620-1.

14 Qarafi, Nafa'is, vol. 6, 2677.

15 Qarafi, Nafa'is, vol. 6, 2672-6.

16 Zarkashi, Al-Bahr.

17 Zarkashi, Al-Bahr, vol. 4, 128-131.

18 Zarkashi, Al-Bahr, vol. 4, 519-20.

19 Zarkashi, Al-Bahr, vol. 4, 528-30.

20 Zarkashi, Al-Bahr, vol. 4, 528-30.

21 Even the disagreement of Zahiris would not definitely be a spoiler. See Zarkashi, Al-Bahr, vol. 4, 471-4. Similar discussions are found about consensus despite the disagreement of the few (one or two).

22 Ibn Hajar al-Haytami, Al-Sawaiq al-Muhriqa 'ala Ahl al-Rafd wa-l-Dalal wa-l-Zandaqa (Beirut: Mu'ssasat al-Risala, 1997).

23 Ibn 'Abidin, Majmuat Rasail Ibn Abidin, vol. 1 (Cairo: M. H. Kutubi, 1325—1907), 366.

24 See for example: Ibn Qudama, Al-Mughni, ed. A. al-Hilw, vol. 10 (Riyadh: Dar 'Alam al-Kutub, 1997), 10-11.

25 Ibn Hajar al-'Asqalani (d. 852/1449) (ed. M. al-Khatib), Fath al-Bari Sharh Sahih al-Bukhari (Cairo: al-Matba'a al-Salafiyya, 1980), vol. 9, 420-4.

26 Daniel S. Lev, ‘The Supreme Court and Adat Inheritance Law in Indonesia', The American Journal of Comparative Law 11(2) (Spring 1962): 205-24.

Selected bibliography and further reading

Ali, Abdullah bin Hamid. ‘Scholarly Consensus: Ijma': Between Use and Misuse'. Journal of Islamic Law and Culture 12(2) (2010).

Ibn Qudama. Al-Mughni. Ed. A. al-Hilw (Riyadh: Dar 'Alam al-Kutub, 1997).

Juwayni, Abu al-Ma'ali 'Abd al-Malik b. Yusuf al-. Al-Burhanfi Usul al-Fiqh. Ed. 'Abd al-'Azim al-Dib (Doha, Qatar: Matabi' al-Da'wa al-Haditha, 1399/1980).

Qarafi, Ahmad b. Idris al- and Muhammad b. Zakaryya al- Razi. Nafais al-Usul Sharh al-Mahsul. Ed. 'Abd al-Mawjud and Muwwad (Riyadh: Baz Pub., 1995).

Zarkashi, Muhammad b. Bahadur al-. Al-Bahr al-Muhit fi Usul al-Fiqh (Kuwait: Ministry of Religious Affairs, 1992).

Zysow, Aron. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory. Resources in Arabic and Islamic Studies (Atlanta, GA: Lockwood Press, 2013).