Question
Assalamu ‘alaykum.
I have been reading into Fiqhi rulings recently and it seems to me that much of what I read from the Fuqaha either is bad logic put into practice or simply defies clear prophetic statements. Some examples are:
1) Wilayat ul Ijbar: the Prophet (Allah bless him and give him peace) said the bride’s consent is to be sought first.
2) Slave women awrah: Allah says in the ayah, believing women, not free women. The assumption is logically unwarranted.
In light of these two examples, what do you say?
Answer
Wa ‘alaykum assalam wa rahmatullah wa barakatuh.
I pray you are well.
Fiqh Is A Complex Science
I say that fiqhi rulings are part of a complex science, and one cannot grasp their full purport without studying it with qualified scholars – even if one knows Arabic. I once got asked to show a fiqh book to a Jordanian customs officer at the Syrian-Jordanian border. He was an Arab, but after trying – and failing – to understand the fiqh text he concluded that it’s not Arabic. It took a while to convince him.
Fiqhi rulings are based on verses of the Qur’an, many hadith, statements of the Companions, principles derived from the Shari’a as a whole, and even cultural practices in some contexts. Even the grammatical, morphological, and rhetorical meanings taken from these sources can add many layers of nuance to fiqhi rulings.
The science of Usul al Fiqh deals with how to approach the primary sources before a single ruling can be derived. Nothing is arbitrary; rather, it is all based on the Qur’an, the Sunna, and their valid interpretive approaches based on the Arabic language and the methodologies the Companions learned from the Prophet (Allah bless him and give him peace).
Fiqh Books Are Contextualised
This is an important point. Fiqh texts are technical manuals that have to be understood in their own technical, historical, and cultural context. A competent faqih knows how to understand the books on their own terms, and then apply them to his own context on its terms. He applies the principles and legal tools to arrive at a contextualised ruling. Someone who has only mastered the meanings of the texts will not give answers relevant to his time and situation.
The Fuqaha Looked At the Entire Body Of Hadith
Sometimes, individual hadith are used to establish a ruling. In other situations, one narration may be contextualised, or abrogated, or even open to multiple valid interpretations. For example, Sayyida ‘A’isha (Allah be well pleased with her) narrated a hadith that stated a lady cannot get married in the absence of her wali. Then she got her niece married in the absence of her wali.
Clearly, she understood something about the scenario that isn’t clear in the wording of the initial narration. This is why she acted contrary to its outward purport.
Another example is the issue of disliked actions in the prayer. Abu Hanifa looked at the spirit of the actions understood from the collective body of hadith. For example, standing with one’s hands on one’s hips – like superheroes are depicted – is a stance that has connotations of arrogance in some places and cultures, so it was forbidden in the prayer. Therefore, any action which denotes arrogance would be disliked in the prayer, because the prayer is meant to be a situation where one is humbled before God.
A superficial look at the Qur’an and Hadith literature can make one miss many things. This is why there are many people in recent years who have unfairly criticised the mujtahid imams.
The Guardian Marrying Off Someone Under His Care
In the first scenario, the ruling relates to a father’s right to marry off his pre-pubescent daughter without consulting her. This simply relates to a marriage contract, as any physical interaction that can be physically or psychologically damaging to her is not permissible.
There are many reasons for why people wanted to do this in pre-modern times. There was no higher education or career paths for most people to seek. People also matured a lot faster, both physically and mentally. Adolescence is not a universal phenomenon.
Sometimes, opportunities for marriage came up, and when it was in the interest of someone’s child the father could make that decision for her, due to her not being old or mature enough to make the decision herself. Perhaps, that marriage contract at that time was best for her. This contract can also be annulled by a judge if she did not want to remain in the marriage upon reaching puberty.
There is also the condition of her father being someone capable of making sound decisions. Otherwise, he is not permitted to marry her to someone like this. (Mahbubi, Sharh al Wiqaya)
The hadith you mentioned states “The previously married lady is not to be married off until she is consulted, and the virgin is not to married off until her permission is sought.“ (Bukhari) This hadith clearly states that ladies have the right to choose their husbands. However, as mentioned above, sometimes beneficial opportunities presented themselves and the guardians had the right to enter them into a marriage contract if they had not reached adulthood.
This right is given to the guardians because younger people do not always think of the long-term implications of decisions. In modern and pre-modern times children who had large amounts of wealth were not given free access to it, lest they spent it on things devoid of their long-term benefit. Marriage is also similar in its long-term implications.
So, as we have seen, the ruling makes perfect sense – especially when we consider that the Shari’a was designed to be applicable to people in any time after the Prophet (Allah bless him and give him peace) and in any place. It is also in perfect accordance with the hadith of the Prophet (Allah bless him and give him peace) and the other principles of the Shari’a.
The ‘Awra of Slaves
The second point you was in relation to the following verse:
“O Prophet! Ask your wives, daughters, and believing women to draw their cloaks over their bodies. In this way it is more likely that they will be recognised [as virtuous] and not be harassed. And Allah is All-Forgiving, Most Merciful.“ (Qur’an, 33:59)
What you understood from the verse is that the ‘awra of all believing women is the same, and, because the verse refers to believing women, the ‘awra of female slaves should be the same if they are Believers. This is a sound conclusion if it was not for the Qur’anic usage in other verses and historical context.
The other verse about ‘awra, in Sura al Nur, states:
“And tell the believing women to lower their gaze and guard their chastity, and not to reveal their adornments except what normally appears. Let them draw their veils over their chests, and not reveal their [hidden] adornments except to their husbands, their fathers, their fathers-in-law, their sons, their stepsons, their brothers, their brothers’ sons or sisters’ sons, their fellow women, those [bondwomen] in their possession…“ (Qur’an, 24:31)
This verse delineates the people who can see various parts of a Muslim lady’s body beyond the hands and face, such as her hair, forearms, etc. The details are in the Fiqh works.
What is relevant here is that the mention of believing women is separate to the mention of the female slaves they owned: “their fellow women, those [bondwomen] in their possession…“ (Qur’an, 24:31) (Alusi, Ruh al Ma’ani) The ruling for male slaves is the same as the ruling for unrelated men, so the verse does not refer to them.
From this we can see that the verses that refer to believing women in matters of ‘awra do not apply to female slaves – otherwise, there would be no need to mention them separately in the above verse. Doing so would be redundant and poor style if the same ruling applied to them, and we know from the consensus of the experts of the Arabic language that there is nothing redundant in the Qur’an. Therefore, the rulings of ‘awra for female slaves were different to those relating to believing women.
Additionally, when the Prophet (Allah bless him and gave him peace) took Safiyya b. Huyayy from the captives of Khaybar, the companions were unsure if he was going to marry her – which implied freeing her – or keep her as a slave. They said, “If he veils her she is one of the Mothers of the Believers“ – a title given to the wives of the Prophet (Allah bless him and give him peace) – “otherwise, she is a slave.“ (Bukhari) He veiled her.
What we can see from this is a historical context for the verses: free women and slaves were not the same when it came to the rulings of ‘awra, and their dress culturally. Therefore, it’s clear that this point is perfectly logical, and the Jurists of Islam looked at all aspects of the matter when discussing rulings.
You’ll find that the entire of the religion of Islam is perfectly sound, as is the approach of the mainstream Muslim scholars. As a general rule, if something seems strange, it is likely that there are aspects that have not been considered, or it is merely appropriate to cultural sensitivities different to what we are accustomed to.
In conclusion, it’s best to study these matters with qualified scholars – especially when one is trying to understand the legal basis and reasoning behind a matter. The material accessible to laymen in Arabic is limited – let alone in other languages.
May Allah grant us sound understanding and complete certainty in His religion. Allah bless you.
May Allah grant you the best of both worlds.
[Shaykh] Abdul-Rahim
Checked and Approved by Shaykh Faraz Rabbani