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In Quest of Equity? The Muslim Marriage Contract

Abstract:

This paper provides an Islamic critique of the recent Muslim Marriage Contract and reform of Islamic law in general. Given the plurality of Islamic law, it asks whether we can ever establish what is and what is not Islamic. It argues that what makes one position Islamic and another un-islamic is the authority it appeals to. Muslim jurists have throughout their history made arguments and defences based on Divine Sources. Further they have sought to establish a legitimate process by which Islamic law [fiqh] is formulated. In order to meet the bar of Islamic law it has to not only superficially correspond with or not contradict Divine Sources rather it must be truly derived from them. The framers of the Muslim Marriage Contract have instead drawn together disparate opinions on nikah from Muslim schools of thought and introduced some of their own in order to please secular critics of Islam. They have also made some basic errors in legal reasoning. As a result of this, the Muslim Marriage Contract is both an un-islamic and a rather inelegant document.

Shaykh Mustafa al-Maraghi (1881-1945) is famous for being appointed twice as rector of the oldest Muslim university in the world, the al-Azhar, where he was an active supporter of Islamic legal reform. Once, when sitting in a meeting of lawyers who were working to reform Egypt’s Islamic law, the shaykh is reported to have said to the lawyers that it was for them to suggest to him what changes they wished to make in Islamic law and it was for him to find a suitable authority in the shari‘ah for their views. This story, narrated in an academic article1 by another academic who, despite the fact of not being a Muslim, was called in by more than one country to advise them on how to reform Islamic law, captures the haphazard attitude of British apologists seeking to reform the Islamic law of marriage through the Muslim Marriage Contract [hereinafter, MMC]. {quotes}We find no coherence in their proposals for reform.{/quotes}

Instead, we observe that they have adopted conflicting opinions from the various legal schools of law to arrive at an end product that would not only not be recognized by any single one of then, but what is much more serious, is directly in contravention of sacred Islamic law. Not only that, the justifications for these reforms offered by the apologists are either embarrassingly apologetic or plain hypocritical. The rest of this article expands on these two themes, namely the un-Islamic nature of the MMC, and the internal tensions within it.

On Islamic Law and Islamic Critiques

Before we begin, we should outline why we believe an Islamic critique of these laws to be both necessary and useful for everyone, regardless of their sympathy, or lack thereof, for Islam itself. First, many Muslims accept the principle that all law should be based on religion and religious values. This does not mean relegating justice as an issue of secondary importance. In fact Muslims believe that implementing Divine law is the best means of establishing absolute justice, which cannot come from any source other than the Absolute Himself. Religion is, of course, also one of the many inspirations behind a great deal of English law, (for example according to many 17th century judges the requirement of fair hearing in administrative law has biblical antecedence. For God did not condemn Adam for his sin until He gave him the chance to explain himself) and even in secular societies many public debates on right and wrong continue to be inspired by religious ideas. Second, even those who have called for a change in Islamic marital laws etc. in the West have been forced to articulate their arguments in religious terms, even if they do not accept Islamic law’s claim to authority. At the very least, they have had to show that their proposed reforms were not really in conflict with, and in fact upheld, values like justice and equity which are the very spirit of Islamic law.2

This may be regarded as an implicit acknowledgement of the influence of traditional religion in Muslim life.

Supporters of the MMC often condemn their critics for mixing a religious critique with their criticism of the MMC and similar reform proposals. In fact, the apologists themselves are presenting, explicitly, an Islamic critique of the traditional Islamic law provisions on marriage [nikah], divorce [talaq] etc. The authors of the MMC and their supporters themselves have tried to use Islamic arguments to show that the traditional Islamic laws as practiced in Britain are an imperfect expression of the principles of Islamic law and, therefore, in need of reform. After all their entire argument rests on the premise that since traditional Islamic law is incapable of dealing with the challenges of twenty-first century British life, Islam itself requires that we discard the practices of the past, of our Prophet and his companions, our pious forefathers and forbears – and that we adopt instead the confusing medley of reforms presented to us by the apologists. As such they can hardly complain that their critics are invoking Islam to challenge the reform proposals instead of arguing on the merits of the proposals themselves. The extent to which the proposed reforms are genuinely harmonious with traditional Islamic law has to be one of the key tests used to determine the success of these reforms.

But is an Islamic critique even possible? Many modernizers suggest that given the extremely pluralistic tradition of Islamic law, which allows and perhaps even encourages a multiplicity of views on any legal topic,3 They point to the existence of multiple schools of law, each of which upholds the validity of all the others while continuing to offer competing interpretations of Islamic law, as a way to silence their opponents who accuse them of making un-Islamic reforms.4 Indeed, some modernizers might suggest that, in light of the many rival interpretations of Islamic law, the basic criterion for identifying an Islamic law is that it is the law of the Muslims and does not contradict the stated text of the word of God as contained in the Quran.5 But this view is untenable because it ignores the fact, that for the greater part of their history, Muslim jurists have been concerned with identifying what constitutes Islamic law and Islamically-valid legal argument.6

Furthermore, the argument that a law is Islamic so long as it is the law of Muslims also seems to ignore the crucial distinction between the concepts of shari‘ah and fiqh.7 The former term refers to the legal content of the Qur’an and Sunnah alone.8 In this sense it is Divine law as contained in the word of God. This can either be revealed directly in the form of the Qur’an, which according to orthodox Islamic belief is the literal, uncreated word of God, or indirectly, through the words and actions of the Prophet, known as the Sunnah, which is held by the Qur’an itself to be divinely inspired.9 Fiqh, on the other hand, is the law which comes about after legal scholars have interpreted the relevant provisions of the Divine law.10 Fiqh can therefore make no claim to infallibility or objectivity. Being the result of the ijtihad or intellectual exertion of a scholar or a group of scholars, it is always possible that it misinterprets the provisions of the shari‘ah.11 This is why it is necessary to measure every fiqh opinion in the light of the Qur’an and the Sunnah, and this historically, is what Islamic scholars have always done – offer Qur’an and Sunnah based defenses of their own positions and using the Divine sources to point out where they believed their contemporaries to be mistaken.

On Islamic Legal Reasoning: The Mark of a Muslim Jurist

The least one is entitled to expect from Muslim scholars, especially those who adopt the mantle of reformists, is some skill in the art of legal reasoning, which has been the hallmark of Islamic scholars throughout the ages. One is disappointed, upon observing the methodology adopted by the apologists who framed the MMC, to find it the reverse of that tradition of sound and refined legal reasoning which has guided Muslim scholars for centuries.

In fact the approach followed by the apologists has been the same as that adopted by every insincere attempt by Muslims to reform Islam since the Ottoman Mejelle. This law, the first modern attempt to codify Islamic law, was brought about by the pressure on the Ottomans by Western powers who wanted to see large parts of Islamic law reformed and who also wanted to see exceptions from Islamic law provided to Christians residing in Ottoman lands. As a result of their moral and political weakness, the Ottomans capitulated and produced the Tanzimat which provided immunity from Islamic law to Westerners in the Empire and the Mejelle which undid those aspects of Islamic law most repugnant to Europeans. As a result, an eclectic blend of mutually contradictory opinions from the four schools were brought together and enforced on the Muslim population. Since their passage in the 1880s the Mejelle has been the model of reform for every reform of Islamic law by cowered Muslims everywhere. The MMC too, follows the methodology of this misguided instrument in bringing together not just the easiest opinion from the four schools, but what is far more disgusting – those most palatable to the West. Thus the presence of a guardian is deemed unnecessary based on a Hanafi opinion with which the Hanbalis disagree, the wife is allowed the right to forbid her husband from marrying again, based on a Hanbali opinion with which the Hanafis disagree, and the husband is denied the right to marry again, even outside the country, based on an MMC opinion with which nobody agrees!

So what lies beneath these reforms? Clearly, the desire to please secularists who denounce the backwardness of Islam, ignoring in the meantime their own spiritual and moral, not to mention social impoverishment, as reflected in their drug-use and crime rates, and [a hugely relevant statistic, given the MMC’s attempts to make Islamic marriages resemble Western ones] their rates of divorce. To bring about these changes, the framers of the MMC have blinded themselves to the contribution of thousands of legal minds over nearly fifteen centuries, they have severed the temporal link between the Muslim community which, like any other religious community, has always perceived itself to be connected with its religious forbears and with future generations of adherents to the faith. They have also ignored basic provisions of Islamic jurisprudence, such as the rule requiring that the Qur’an must be interpreted in the light of the Sunnah,12 that the consensus of the Muslim community’s jurists is itself a binding source of law,13 and that the practices of the earliest generations of Muslims, the Companions of the Prophet and the couple of generations following them, constitute a golden example for Muslims to follow.14 In fact the command to follow the Caliphs Abu Bakr and ‘Umar is contained in a Prophetic tradition, as is the command to follow the Righteous Caliphs.15 The framers of the MMC thus ignore the crucial point that a jurist does not have complete freedom in interpreting a term like ‘nikah’ [marriage] and must be guided by the understanding of earlier scholarly authority, not by contemporary trends in English public opinion.

They also ignore the hierarchy of sources that exists in Islamic jurisprudence to resolve any potential conflicts between them. The hierarchy followed by traditional Muslim jurists, for example, places revealed or primary sources above non-revealed or secondary sources. In our nikah example, a divine command that the parties carry certain obligations designed to bring about their own welfare and that of the society in which they live, could not be overridden by considerations of public interest, because public interest, although accepted as a source, is in fact only a secondary source of law.16 In the case of the MMC the whole invocation of public interest as a grounds of law is undermined by the assumption made by its framers that public welfare is synonymous with their desire to be respected and liked by those who regard religious law, especially Islamic law as oppressive and barbaric. A Muslim ought to believe that there is nothing in the religion of God that is contrary to his best interests. This, rather than challenging the wisdom of God based on the criticisms of those who know nothing of religion and God, needs to be the Muslim’s approach.

None of the Justifications Given for the MMC is Valid

One of the main arguments given by the apologists for their proposed changes is that this will bring about greater harmony between Islamic and English law. There is no need for this at all. In fact English law already accepts a whole range of limitations on its power, jurisdiction and efficacy because it is one of several legal systems competing in the world. English judges have already accepted that English law can be overridden by the British government’s international obligations, by international human rights law and norms, by European Union law, the WTO and various other legal and regulatory systems. As such there is no reason to deform Islamic law to fit with British law which is already capable of tolerating departures from its provisions. International and universal shari‘ah law is yet another example of a fully formed, developed and sophisticated body of law which is already the basis of many judgments in English, American and Canadian courts. The argument that this law needs to change to fit with British law is a non-starter. In any case, a badly thought out proposal like this would never achieve recognition in English law, and is likely to do much to tarnish the reputation of Muslims as serious jurists. If English courts were to start implementing Islamic law, legislative changes would have to be made to bring that about. In fact the MMC takes a very unrealistic view of English law, suggesting that a Muslim cannot contract a marriage abroad because it is not allowed under English law. In fact English law lacks jurisdiction in foreign countries and marriages contracted abroad would be judged there by the laws of the countries wherein they were contracted, not by English law.

Following on from that, even if we accept that the aim of the reforms is a valid one and there is a need to harmonize English law and Islamic law by mutilating the latter – the MMC does not even achieve this aim. For the MMC makes it quite clear that there are areas of irreconcilable difference between Islamic and international law. As such, the MMC fails on one of the targets it sets itself. So not only is it misguided in its vision but also ineffective in bringing that vision to reality.

In fact the MMC envisages a two-tiered structure whereby parties to a Muslim marriage [and recall that the soundest opinion is that a marriage convened under the MMC would NOT be Islamic] would have to approach both local Islamic shari‘ah boards/community leaders and also the civil courts. This would be disastrously inefficient, and cost-ineffective, especially at a time when the government is complaining about the burden on the court system.

Arguing that Islamic law as practiced in the UK by local imams/communities contains hidden biases and forms of domination, the apologists have chosen to remedy this malady by changing Islamic law itself, while upholding those cultural practices which they claimed were responsible for the perpetuation of injustice, particularly against women, in Muslims societies. For instance, while claiming that the purpose of the draft is to remove the burdens faced by Muslim women – a laudable aim – the MMC allows repugnant cultural practices such as the practice of requiring the bride’s family to provide “gifts” to the groom or his family. Often, the amounts demanded by the groom and his family as gifts, also referred to as jahez in South Asian communities, are so excessive that families have to face serious financial difficulty to meet these demands. If they do not, there is a danger that the bride will be subjected to mistreatment by the husband’s family. The MMC not only fails to outlaw such un-islamic cultural practice, but by failing to condemn them actually gives them legal protection, allowing the continuation of cultural practices oppressive to women. Similarly, the Introduction to the MMC draft calls for the empowerment of local Mosque Imams. These are the very same people, whom the framers of the MMC accused, in a different context, of being responsible for the subjugation and oppression of women and of improperly understanding the Islamic law on this subject. While the MMC is undoubtedly correct in identifying the role of local imams in reinforcing cultural forms of oppression, how does it make sense to empower these same imams by making them the first avenue of conflict resolution, as the MMC does. Is it really thought that a five page document would remove the misconceptions of imams, who for decades have been responsible, according to the framers of the MMC of misinterpreting and misunderstanding Islamic law?

Supporters of the MMC have hailed it as a symbol of equity. This claim is worth examining in some detail, especially since Islam is a religion which claims to guarantee equity through the application of Islamic law. To claim that we need to look beyond Islam to build an equitable legal system would thus be a direct rejection of the Qur’anic claim that the law of God is based on justice and equity.

It would also be denying the attribute of the Lawgiver who calls Himself the Equitable One. In fact, the MMC, despite its claims to the contrary, is a particularly iniquitous proposal. It is unfortunate that in order to appease those who are hostile to the idea of Islam not only have these modernisers made changes to Islamic law, they have also made claims about their proposals which are untrue, all to satisfy those who are unlikely to be satisfied with Islamic law until it is no longer Islamic at all.

After claiming self righteously that the MMC is designed to achieve equality between the spouses, the draft then goes on to define the respective obligations of the spouses. The husband, we are told, has the obligation to support his wife and family financially, but there is no corresponding obligation on the wife. Why not, if the basis of the contact is perfect equality? Similarly, why argue that the right of divorce belongs to the husband. Secular critics of Islamic law are unlikely to be happy with anything less than equal rights to divorce. But this is a provision the MMC cannot give them and so they are forced into an impossible position where they adopt all sorts of compromised positions without ultimately satisfying anyone but themselves. Not only are these provisions manifestly unjust, they should also open our eyes to the deception which is being carried on whereby the framers of the MMC are trying, contemptibly, to gain favour with non Muslim critics of Islam, which of course is the real purpose of the MMC and which is why those who framed it can rightly be called apologists, while actually their proposals would satisfy neither their secular critics nor, of course the Muslims.

A good example of this would be the MMC’s provisions on marital obligations. Although referred to elsewhere in the draft, the MMC does not list sexual enjoyment by one’s spouse to be one of the obligations of the husband or the wife. From an Islamic perspective this is a glaring omission. In fact, one of the consequences of the provision would be that a wife could sue her husband on grounds of marital rape, arguing that since being sexually available for the husband was not part of her martial obligations, the husband had no right to have intercourse with her. This would overturn centuries of Islamic legal thought which regards the act of marriage itself as consent to future acts of intercourse (provided neither side is harmed by that). On the other hand, by not explicitly addressing the issue, the MMC is also unlikely to satisfy its intended audience, namely those non Muslims who denounce the existence of the right of each spouse to engage in intercourse with the other. If the framers of the MMC really did see the occurrence of marital rape as a form of violence against women, why did they not address this issue directly?

An even more startlingly iniquitous statement in the MMC claims that since marriage is a civil contract, there must be consideration for it in accordance with English law, and that this consideration is the dowry or mahr, paid by the husband to the wife. This is truly astounding, for the concept of consideration in English law entails that the party getting a benefit from a contract must offer something in exchange for the benefit it receives in order for the contract to be valid. For example, the Courts will not uphold A’s contract with B whereby A agrees to give B his car, because there is no consideration being offered by B for the benefit he acquires, namely the car. If on the other hand B offers ten pounds for the car, the courts will uphold the contract because B has offered consideration (ten pounds) for the benefit (the car). The MMC states that the consideration is ALWAYS to be paid by the husband. Why is this the case? Shouldn’t the basic presumption of an equality based contract be that both parties benefit equally from the contract? If so, why must the husband pay for the benefit of getting a wife, when the principle of equality suggests that the husband and wife both benefit equally by entering into the marital contract? Of course the framers of the MMC have simply demonstrated their lack of competence at the basic Islamic juristic tool of analogical reasoning [qiyas], claiming that mahr is consideration just because of a superficial resemblance between the two. Moreover, consideration is a specifically English concept and is not a requirement of continental law in claiming that mahr is consideration the framers have clearly imposed a distinctly English concept onto Islamic law. Would the framers suggest that a Muslim marriage in mainland Europe and in the Muslim world would be invalid because those jurisdictions do not require consideration as part of civil contracts? Clearly, the Islamic philosophy behind the payment of mahr, (which does not even have to be a financial amount according to the soundest opinion supported by ahadith in the Sahih of al-Bukhari), has nothing to do with the English doctrine of consideration, despite the sad and unworthy attempts of the framers of the MMC to convince secularists that Islamic law is as sophisticated as English law.

In fact the MMC also states that if the husband divorces the wife he will have to pay any outstanding mahr he owes her. This seems to indicate an absolute, not a fault-based standard of divorce, seemingly in line with the MMC’s stated aim of bringing about greater equality. But paradoxically, we then find a fault based provision thrown in which states that if the wife divorces the husband, and the husband is found to be at fault, she does not lose her mahr. This definitely indicates a fault-based standard. Why do the so called upholders of equity insist on this double standard? If divorce is, as the MMC claims, the power of the husband, why does the issue of fault arise? And if the issue of fault is relevant, as the MMC claims, why does the husband lose the mahr he paid to the wife even where she is at fault?

These are just some of the absurd consequences and contradictions that arise as a result of abandoning the guidance of the Qur’an, the Sunnah and the pious predecessors on this issue.

Lastly, a general point about the nature of attempts such as the MMC in the context of the secular English legal systems needs to be made. The framers might not realize it, but their very proposals for reform, which were designed to bring about relief from some sort of oppression that we have all apparently been suffering from, ends up being the most illiberal, anachronistic and primitive attempts by one set of people to dominate and control another. Do the framers of this document realize the absurdity of framing a legislative draft in a secular state and legal system which purports to tell people that if they violate this five page draft, they would be committing a sin? Isn’t this far more antithetical to the spirit of a liberal, secular state than the traditional religious marital practices of a community of Muslims could ever be? By what authority have the framers of this document, which has been almost universally reviled by traditional experts on Islamic law everywhere, granted themselves the right to tell people that not following the fruit of their futile labour would not only be a violation of the law (actually they have it wrong, it won’t be a violation of the law, but never mind) but also a sin? It is precisely to remove this oppression of man to other men, to remove inequality by ensuring that all men and women submit to God equally, that the religion of Islam was revealed. For all its false attempts to portray itself as a liberal document the MMC is in fact a thoroughly intrusive set of proposals which should be rejected by all who possess a genuine love of liberty and the dignity of man. A more invasive set of proposals is difficult to imagine. The MMC goes so far as to make it a legislative duty to maintain social contacts with various groups of people. A husband is legislatively prohibited from passing a “transmissible” (sic.) disease to his wife (does that include a flu?). It will be recalled that these are not merely legislative guidelines. They purport to be theological truths. The man who does not wish to associate with the “mutually beneficial” social contacts envisaged by the MMC is not just an offender, he is also a sinner. It is unremarkable to find that proposals such as this have found the most support from fanatical anti-Islamists who have no acceptance in the mainstream Muslim community, such as Ed Hussain whose acclaimed liberalism dies a strange death whenever there is an opportunity to denounce heavy-handed attempts to restrict the liberties of mainstream Muslims. In the most alarming provisions, the MMC actually undermines centuries of profound Western thinking on the subject of the separation of powers and claims that Muslims will have the right to decide on the “interpretation and application” of the MMC themselves. Since when does a secular state allow citizens and subjects of the law to decide what it means and also how and if to implement it. And if all the power is going to rest with individuals anyway, which is presumably where it rests now, what is to stop the evil imams whose personal influence over individual Muslims allowed them to wreak such injustice in their lives. Once again, the MMC seems to be both draconian and ineffective at the same time.

Notes:
1. J N D Anderson, Law as a Social Force in Islamic Culture and History, BSOAS, p. 36.
2. Such views have been advanced by advocates of reform in Islamic Family Law, see generally Abdullahi Ahmed. An-Na’im, Islamic Family Law in a Changing World: a Global Resource Book (2002); see also A.A. An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (1990).
3. See generally Khalid Abou el Fadl, The Place of Ethical Obligations in Islamic Law, 4 UCLA J. Islamic & Near East L. 8-10 (2004); see also Irshad Abdal-Haqq, Islamic Law: An Overview of Its Origin and Elements, 7 J. Islamic L. & Culture 37, 67-68 (2002); See also Ismail R. al-Faruqi and Lois L. al-Faruqi, The Cultural Atlas of Islam 276 (1986).
4. In medieval times, there were as many as nineteen schools of thought. The Sunni schools which have survived and are widely followed today are the Hanafi, the Maliki, the Shafi and the Hanbali, and perhaps the Zahiri. The Jafiri school is also followed amongst the Shia. In Pakistan the Hanafi school is the most widely followed. [But see Fida Hussain v. Mst. Naseem Akhtar and Another, PLD 1977 Lahore 238 where the Court said that it was not bound to follow a single school of thought and should in fact attempt to ascertain the correct legal principles in the light of the Quran and Sunnah]. For a discussion of the origin and development of the schools of law, see Bilal Philips, The Evolution of Fiqh (1988).
5. See Lama Abu-Odeh, The Politics of (Mis)recognition: Islamic Law Pedagogy in American Academia, 52 Am. J. Comp. L. 789, 790 (2004):
The European legal transplant in the Islamic world is never seriously explored or theorized in these materials. If referred to, it is either in its moment of arrival as a foreign import, or in its moment of fantasized departure as a thing to be displaced and replaced with something more authentic: “Islamic law.” Its absence from the materials as the positive law of the Islamic world, that informs its codes, treatises, law reports, legal institutions, legal curricula in law schools is striking. This produces the paradoxical phenomenon that whereas in most other regions, scholars are typically invited to pay attention to law outside of positive law, in the Islamic world one has to do the opposite: call attention to law “in the books, in the classroom, and in the courts.”
6. This was, according to some experts, the reason Imam Shafi‘i, who has (perhaps incorrectly) been called the founder of Islamic jurisprudence (usul ul fiqh), wrote his book, Al Risalah (The Epistle), which has also (perhaps less incorrectly) been called the first book on usul ul fiqh. For a discussion of this issue, see generally Wael Hallaq, Was al-Shafi‘i the Master Architect of Islamic Jurisprudence?, 25 Int’l J. Middle East. Stud. 587 (1993). For an explanation of usul ul fiqh which has been translated here as Islamic jurisprudence, see Mohammad Hashim Kamali, Principles of Islamic Jurisprudence 1 – 15 (3rd ed., Cambridge, 2006). Whether or not Shafi‘i was the master architect of Islamic jurisprudence, it seems clear that one of his main purposes in writing in the field of usul ul fiqh was to convince his readers that in order to be valid, jurisprudential arguments would have to be based on the primary sources, the Qur’an and the Sunnah. See Wael Hallaq ibid. and Wael Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni usul al fiqh 18-35 (Cambridge, 1997).
7. For the distinction between fiqh and shariah, see Abou el Fadl, supra note 13, at 8 – 10; See also Abdal-Haqq, supra note 13, at 27, for an in depth discussion of Shariah and Fiqh. Abdal-Haqq also notes that Muslim rulers around the thirteenth century themselves might have contributed to the blurring of the line between fiqh and shariah, especially after the fall of Baghdad in 1258 to the Mongols, thereby elevating the schools of law to the level of divinely ordained commandments of the Quran and Sunnah. In our day, we might be seeing the reverse trend of Muslim rulers rejecting fiqh altogether in favour of a so called return to the original Islam of the Quran and Sunnah in order to allow major changes in the corpus of Islamic law which might not be acceptable to the Muslim populations of their countries.
8. VII Brill, 320. See also Abdal Haqq, supra note 13.
9. On the authority of the Quran in Islamic jurisprudence, see al-Faruqi, supra note 13, at 240, Abdur Rahman I. Doi, Shari’ah: The Islamic Law 21 (1984). On the authority of the Prophet and his sunnah, see Quran 53: 3-4: “Nor does he [the Prophet] speak of his own accord. [What he says] is only a revelation revealed.” See also Quran 4:80, 33:21,and 33:36.
10. For fiqh, see II E.J.Brill, First Encyclopedia of Islam 1913-1936 62 (M. Th. Houtsma et al eds., 1987).
11. Philips, supra note 14, at 2. This is why the verisimilitude of every legal opinion arrived at as a result of fiqh must be measured against the Quran and Sunnah. See Said Ramadan, Islamic Law, Its Scope and Equity 61-63 (1970).
12. For a discussion see Kamali, supra note 16, at 78-81. See also Melchert, supra note 22, at 908
13. See Kamali, supra note 16, Ch 8; Melchert, supra note 22, at 908.
14. This principle is based on the words of the Prophet, who said ‘The best of my followers are my companions, then those who come after them, then those who come after them.’ The justification for understanding the religion the way it was understood by the Prophet is that the earliest generations, being closest in time to the source of revelation, have the best understanding of the causes and meanings of revelation and hence of the law.
15. This is based on the words of the Prophet, ‘Follow my example and the example of the rightly guided caliphs after me.’
16. See Kamali, supra note 16, at 351 for the author’s conclusion that hudud punishments are not subject to considerations of public interest or maslahah.

About Abdulrahman Mustafa

5 comments

  1. Excellently explained
    Very well explained and researched. Jazakallahu kheyr. Shaykh Haitham al-Haddad also refutes this so called ‘Muslim Marriage Contract’ in a video… not sure if it’s available on the site, but can be found on YouTube and IslamicTube

  2. Fatima Barkatulla

    Jazakallahu khairan

  3. Mohammed Zubair Butt

    Mufti
    Excellent article. I concur wholeheartedly with the sentiments expressed [save for the issue of mahr not having to be property of value]. May Allah swt reward the author for his efforts. aameen

  4. Jazakallahu khayrun for this, Alhumdulillah it supports Sk Haitham’s comments very well.

    “… And they will never cease fighting you until they turn you back from your religion (Islamic Monotheism) if they can. And whosoever of you turns back from his religion and dies as a disbeliever, then his deeds will be lost in this life and in the Hereafter, and they will be the dwellers of the Fire. They will abide therein forever.” (2:217)

    Allah enable our hearts and minds to decipher the evil intentions and actions of the enemies of Islam and may He keep us on the straight path. Ameen

  5. Excellent
    What an excellent evaluation of the contract, very thorough and solid!
    Jazakallah khair
    “It is unfortunate that in order to appease those who are hostile to the idea of Islam not only have these modernisers made changes to Islamic law, they have also made claims about their proposals which are untrue, all to satisfy those who are unlikely to be satisfied with Islamic law until it is no longer Islamic at all.”
    How true

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