Rethinking Islamic Legal Modernism

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 Studies in Islamic Law
and Society

Founding Editor

Bernard Weiss

Editorial Board

Ruud Peters
A. Kevin Reinhart
Nadjma Yassari

VOLUME 45

The titles published in this series are listed at brill.com/sils

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Rethinking Islamic Legal
Modernism
The Teaching of Yusuf al-Qaradawi

By

Ron Shaham

LEIDEN | BOSTON

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Library of Congress Cataloging-in-Publication Data

Names: Shaham, Ron.

Title: Rethinking Islamic legal modernism : the teaching of Yusuf al-Qaradawi
/ by Ron Shaham.
Description: Leiden ; Boston : Brill, 2018. | Series: Studies in Islamic law
and society ; Volume 45 | Includes bibliographical references and index.
Identifiers: LCCN 2018023361 (print) | LCCN 2018023645 (ebook) | ISBN
9789004369542 (E-book) | ISBN 9789004368996 (hardback : alk. paper)
Subjects: LCSH: Qaradawi, Yusuf. | Islamic law.
Classification: LCC KBP283.Q367 (ebook) | LCC KBP283.Q367 S52 2018 (print) |
DDC 340.5/9—dc23
LC record available at https://lccn.loc.gov/2018023361

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface.

issn 1384-1130
isbn 978-90-04-36899-6 (hardback)
isbn 978-90-04-36954-2 (e-book)

Copyright 2018 by Koninklijke Brill NV, Leiden, The Netherlands.

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Dedicated to Aharon Layish,
mentor and colleague

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 Ron Shaham - 978-90-04-36954-2
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Contents

Acknowledgments ix

Introduction 1

1 Rashid Rida and Academic Criticism of His Juristic Thought 24

2 Qaradawi’s Program for the Renovation of Islamic Law 48

3 The Proper Use of the Classical Sources of Islamic Jurisprudence in the

Modern Age 65

4 The Role of Maṣlaḥa in Qaradawi’s Legal Theory 89

5 Case Study I—Polygyny 108

6 Case Study II—The Impact of a Western Wife’s Conversion to Islam on

the Validity of Her Marriage to Her Non-Muslim Husband 125

7 Case Study III—Politics and Gender: Women in Roles of Political

Leadership 145

Conclusion: Qaradawi’s Juristic Thought and Practice in Historical

Perspective 164

Bibliography 177
General Index 186

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Acknowledgments

The Israel Science Foundation (research grant no. 73/10) financially supported
this project, for which I am grateful. During the long period I spent working
on this book, I have enjoyed and benefited from the advice and generosity of a
number of persons. My students Tehila Bigman, Michael Fridman, Noa Gerber,
Yakir Gillis, Jonathan Gonen, Ofir Haim, Ohad Kayam and Taghreed Kaedan
assisted me in collecting, sorting out and summarizing the written sources.
My colleague David Powers, who read an early version of Ch. 1, and the anon-
ymous reader designated by Brill, contributed their insights and comments,
which helped me to improve the manuscript. I am of course responsible for
any shortcomings remaining in the book.
An early version of Ch. 7 was presented at the conference on “Islamic law
and the state: doctrine and history,” convened by the International Society of
Islamic Law Studies (ISILS; May 30–June 1, 2012, Ankara, Turkey). An early ver-
sion of Ch. 2 was presented at the international conference on “Rethinking
Islam at the turn of the 21st century: liberal trends, agents of change and reas-
sessments of Islamic traditions” (5–7 June 2017, Ben Gurion University, Beer
Sheba, Israel). I thank the organizers of these two conferences and the partici-
pants for their feedback on my papers.
Finally, I want to thank Leigh Chipman for her style editing, Keren Abbou-
Hershkovits for preparing the index and Nienke Brienen-Moolenaar and Pieter
te Velde from Brill for their assistance during the long process of seeing the
manuscript through publication.

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Introduction

The Aims of the Book and Its Structure

Shaykh Yusuf al-Qaradawi (b. 1926) is one of the most celebrated jurists in cur-
rent Sunni Islam. Scholars, mainly those working within Western academia,
have written on his religious and juristic thought in its historical and political
contexts. However, a study that analyzes his juristic method in a comprehen-
sive and integrative manner is still missing. Moreover, current scholarship has
not yet fully researched the relationship between Qaradawi’s theoretical juris-
tic writing and its application in his legal opinions (fatwas).1
The filling of this scholarly gap is one of the main aims of this work. In ad-
dition, this book situates Qaradawi’s juristic work in a wide historical context.
Because he identifies himself as a student of Muhammad Rashid Rida (d. 1935),
the leading figure of modern Salafism,2 Qaradawi’s legal enterprise forms part
of the creative import of this trend. Scholars have discussed the theologi-
cal and juristic thinking of modern Salafism in detail. Specifically, they have

1 On the fatwa literature in general, the role of muftis, and scholarship on fatwas, see Masud,
Messick and Powers, “Muftis, Fatwas,” 3–32. Skovgaard-Petersen, “Defining,” 1–21. On the role
of fatwas in Egyptian Salafi newspapers, starting from the late 19th century, see ibid., 69–73.
2 The term Salafism is derived from the term al-salaf (al-ṣāliḥ), meaning “the (pious) fore-
fathers of Islam.” The term was coined during the Abbasid period as a nickname for ahl
al-hadith as a mean to purify Islam from non-Islamic influences. Pre-modern Salafism is
associated mainly with Ibn Taymiyya, who rejected strict adherence (taqlīd) to any theo-
logical or legal school and gave preference to the opinions and interpretations of the first
three generations of the people of Medina, claiming that their understanding of the Qurʾan
and of the Prophet’s teachings was superior to that of later scholars. Ibn Taymiyya’s Salafism
was iconoclastic. While it praised the Islamic ancestors, it also intended to undermine the
binding authority of later interpretations. See Rapoport and Ahmed, “Ibn Taymiyya,” 11–12.
Ibn Taymiyya was a marginal and eccentric scholar among his contemporaries, but his ideas
have been revived and become central starting in the 18th century and especially during the
last decades of the 20th century. Very few figures from pre-modern Islam “can claim such a
hold on modern Islamic discourses” as Ibn Taymiyya, who is conceived by revivalist move-
ments as the architect of Salafism. See ibid., 4. On the renewed interest in his ideas by the
Wahhabis, the Modernists, and the Islamists, including Qaradawi, see ibid., 16–18; Rapoport,
“Ibn Taymiyya’s legal thought,” 218–19; Skovgaard-Petersen, Defining, 71–7. Riexinger argues
that Ibn Taymiyya’s religious ideas “were positively affiliated to ‘modernity’ ” and that the
Modernists, who praised him as their role model, used his ideas selectively. See Riexinger,
“Ibn Taymiyya’s worldview,” 493, 515–16. On quietist and jihadi trends among modern
Salafism, see Meijer, “Introduction.”

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2 Introduction

analyzed in depth Rida’s reformist legal theory, designed to enable Islamic law3
to adapt itself to modern life in general, and to the institutional framework
of the modern nation-state, in particular. The conclusions of these scholars
have usually been highly critical, claiming that the intellectual merit of Rida’s
juristic thought is poor. In addition, these scholars claimed that Rida’s proj-
ect was not an authentic development within Islamic law, because his system
transforms it from a divinely revealed law to a natural law that is informed by
considerations of maṣlaḥa. Maṣlaḥa, literally a source or a cause of well-being
and good, is often translated as “public interest” or “social good.”4
Seemingly, Qaradawi’s juristic theory, which has many similarities with that
of Rida, should be exposed to the same scholarly critique directed at Rida’s ju-
ristic enterprise.5 By analyzing Qaradawi’s juristic thinking and legal opinions,
I claim that this critique is too severe and that it is perfectly possible to argue
that Qaradawi’s project is an authentic development carried out within the
framework of Islamic law.
In this introductory chapter, I first present the structure of the book, fol-
lowed by a short biography of Qaradawi and an analysis of current scholarship
on him. Since Qaradawi “has made it his life mission to reconcile Islam and
modernity,”6 I discuss the scholarly discourse on modernity in general and on
Islam vs. modernity in particular. Then, I change my angle of sight to the ways
Muslim intellectuals have understood Western modernity. For that purpose,
one has to go back in time and consider the calls for Islamic revival that pre-
ceded the Islamic encounter with Western culture. I therefore start by a brief
presentation of Islamic legal theory and the ways in which the jurists applied it
through ijtihād within the framework of the law-schools (madhāhib, sing. mad-
hhab). I then survey the early modern7 and modern Islamic juristic discourse,
which manifested renewed interest in the textual sources of Islamic law while
simultaneously questioning the foundations and applicability of the legal

3 The term sharīʿa, usually translated as “Islamic law,” is the divinely ordained way of conduct,
and therefore it is located in heaven. Its legal human understanding is fiqh, often translated
as Islamic jurisprudence. The fuqahāʾ (sing. faqīh) are the jurists. In this study, I use the term
Islamic law to indicate the fiqh.
4 Opwis, Maṣlaḥa, 1. Opwis explains that while maṣlaḥa does include the meanings of public
welfare and social good, it also goes well beyond them. For this reason, she prefers to retain
its Arabic linguistic form throughout her book rather than translate it into English.
5 Feldman (“Shariʿa and Islamic democracy,” 104–5) states that Qaradawi “is not reputed to be
an especially great scholar” and that his legal opinion on Islam and democracy “is not among
the most theoretically sophisticated Islamic writings on democracy.”
6 Helfont, Qaradawi, 39.
7 By “early modern,” I mean the period between the 17th and the 19th centuries.

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Introduction 3

tradition. I end this introductory chapter by discussing the fragmentation of ju-

ristic authority in recent decades and the current map of religious-legal trends.
Chapter 1 of this book is dedicated to the scholarly critique of Rida’s juristic
thought. In the last part of this chapter, I detail my reservations regarding this
critique and present alternative channels of investigation that I pursue later in
the book. The next two chapters deal with Qaradawi’s legal theory. Chapter 2
treats his general vision of the renewal of Islamic law by way of individual
discretion (ijtihād), and chapter 3 discusses the operation of the sources of
Islamic jurisprudence (uṣūl al-fiqh), especially the textual ones (the Qurʾan
and the Prophetic traditions, the hadith),8 in Qaradawi’s system. Chapter 4 fo-
cuses on the “the intentions of the shariʿa” (maqāṣid al-sharīʿa) and maṣlaḥa
as central components in Qaradawi’s juristic method. Briefly, classical jurists9
defined the intentions of the shariʿa as the fulfillment of the believer’s interests
in this world and the next. The essential interests (maṣāliḥ ḍarūriyya) are the
protection of life, religion, mind, property, honor and lineage.10
In general, scholarly analysis of modern Islamic legal theories has focused
on the theoretical writings of a number of Muslim intellectuals without under-
taking a close textual analysis of their legal opinions. It is one thing to formu-
late a coherent legal theory; it is another one to apply your own or any other
theory consistently when issuing legal opinions. The consistent application or
lack thereof of a certain legal theory over time can teach us a great deal about
the quality of that theory as well as about the integrity of the author of that
theory. If the author of a legal theory is inconsistent in applying his own meth-
odology, we may infer that he sacrifices his faithfulness to the divine sources
and to his methodological tools to justify a certain legal result.
Therefore, each one of the next three chapters (Chapters 5–7) contains a
detailed textual analysis of one of Qaradawi’s legal opinions. The reason for
selecting the three case studies is not their legal theme (criminal, gender or
otherwise). Rather, each case represents a different type of ijtihād conducted
by Qaradawi. In his view, the topic of polygyny is not subject to ijtihād at all;
in the case of the converted wife in the West, he conducts “selective ijtihād”
(ijtihād intiqāʾī), and in the case of the political participation of women, he en-
gages in “creative ijtihād” (ijtihād inshāʾī) (see below). Through the analysis of

8 The other two sources are juristic consensus (ijmāʿ) and analogy (qiyās). See below.
9 For the sake of convenience, by “classical” I mean prior to the legal reforms of the 19th
century, although I am well aware that the history of Islamic law between the 7th and
the 19th centuries is not of one piece, and that students of Islamic law divide it into
sub-periods.
10 Zahili, “Maqasid;” Hallaq, Shariʿa, 104–5.

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4 Introduction

these three fatwas, I intend to clarify the practical use that Qaradawi makes of
his juristic method and to investigate whether he applies his juristic principles
systematically and consistently. The analysis included in each of these three
chapters is comparative; I compare Qaradawi’s legal opinions to other opin-
ions on the same topic, emphasizing the uniqueness of the former’s approach.
In the concluding chapter, I expand my analytical perspective by evaluating
Qaradawi’s juristic project within its wider historical context. One of my main
claims is that Qaradawi responds to a number of problems or ambiguities in
Rida’s legal thought.

A Short Intellectual Biography of Qaradawi

Qaradawi is one of the most famous scholars in the Sunni world today.11 He
presents himself as a disciple of Rida12 and many observers regard him as the
leading juristic authority of the Muslim Brothers, especially in Egypt, his coun-
try of birth. As one of the founders of “jurisprudence for Muslim minorities”
(fiqh al-aqalliyyāt al-Muslima), his appeal includes Muslim minority commu-
nities in the West.13
Two main influences shaped Qaradawi’s worldview as a young scholar.14 The
first was the spiritual leaders of the Muslim Brothers, the movement he joined,
especially Hasan al-Banna (d. 1949),15 al-Bahi al-Khuli (d. 1977), Muhammad

11 For a biography of Qaradawi, based on his autobiography, see Khatib, Qaradawi, 27–61.
A concise version is found in Krämer, “Boundaries,” 184–94; Zaman, Modern Islamic
Thought, 19–24.
12 Khateeb (“Qaradawi as an authoritative reference,” 85) views Qaradawi as the last link in
the chain of Islamic Reformism. On Rida’s strong influence on current Islamists, includ-
ing Qaradawi, to the point that they often duplicate his words, see Soage, “Rida’s legacy,”
16; Nafi, “Fatwa and war,” 101.
13 Caeiro & al-Saify, “Qaradawi in Europe,” 111–35; Zahalka, shariʿa, 80–3, 94–100. See also
Larsen, “Islamic Jurisprudence,” 139, 160, who regards the fatwas issued by the European
Council for Fatwa and Research—in which Qaradawi is the animating spirit—as a di-
mension of “transnational Islam,” which creates and implies the existence and legitimacy
of a global public space of normative reference and debate.
14 On these influences, see Khatib, Qaradawi, 141–8.
15 On the strong influence that al-Banna, the founder of the Muslim Brothers, had on
Qaradawi in his youth and on Qaradawi’s complex relationship with the movement since
then, see Tammam, “Qaradawi and the Muslim Brothers,” 55–83.

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Introduction 5

al-Ghazali (d. 1996)16 and Sayyid Sabiq (d. 2000).17 The second influence was
of ʿulama‌ʾ, both classical and modern, who called for the reform of the Islamic
creed and law. Chief among the classical ʿulama‌ʾ who influenced him deep-
ly was Abu Hamid al-Ghazali (d. 1111), in addition to Ibn Qayyim al-Jawziyya
(d. 1349) and Ibrahim b. Musa al-Shatibi (d. 1388). Among the modern schol-
ars, Rida was a main influence, as already indicated, in addition to reformist
ʿulama‌ʾ from al-Azhar who were Qaradawi’s teachers when he studied there
in the 1940s or were prominent figures at this institution in the 1950s, such
as Muhammad al-Bahi (d. 1982), Mustafa al-Maraghi (d. 1945) and Mahmud
Shaltut (d. 1963).
Qaradawi is an extremely prolific writer.18 In the historical context in which
he has operated, intellectuals discussed two main questions. The first was the
regression (ta‌ʾakhkhur) of the Muslim world and the consequent need for cul-
tural revival (nahḍa) deriving from that. The second, born from the demise
of the caliphate in the 1920s, was the search for a political framework for the
entire Islamic community. Naturally, the themes on which Qaradawi writes
reflect the historical developments that took place in the Islamic world over
the course of the more than half a century of his career. He started to write
in the late 1950s, following disillusionment with political liberalism and during
the culminating point of Arab nationalism and socialism. Later, he witnessed
inter alia the collapse of these ideologies in the 1970s, the struggle between
political-Islamic and secularist movements and the promulgation of Islamic
legislation (e.g. in Iran, Pakistan and Sudan) in the late 1970s and 1980s.
Qaradawi’s authority in the Muslim world is derived from his formal train-
ing at al-Azhar (where he earned a PhD in 1973), obtained at a time when this

16 Qaradawi admires Muhammad al-Ghazali and considers him one of his main mentors.
See Khatib (Qaradawi, 107, 116), who labels al-Ghazali Qaradawi’s shaykh. On Qaradawi’s
official website, his academic secretary admits that Qaradawi follows in al-Ghazali’s foot-
steps in his reformist views on topics such as singing, music, and the status of women.
Al-Ghazali is the author (munshiʾ) of these reformist opinions, while Qaradawi is the
muʾaṣṣil, the one who gives a firm probative foundation to these opinions; see http://
www.qaradawi.net/new/articles/4380-2011-10-23-11-13-42 [visited May 23, 2015]. For more
on al-Ghazali’s influence on Qaradawi while an al-Azhar student and on their mutual
influence on the Islamic awakening from the 1970s onwards, see Khateeb, “Qaradawi as an
authoritative reference,” 85–6, 91, 97; Nafi, “Fatwa and war,” 103–4 n. 67.
17 On Sabiq’s influence on Qaradawi, see Khatib, Qaradawi, 144–7; Nafi, “Fatwa and war,” 103
and n. 67, and more in Ch. 3.
18 For a discussion of his literary products, including the problem of repetitions and a full
list of his publications up to the late 2000s, see Khatib, Qaradawi, 211–40. A list of his pub-
lications until 2007 appears in Skovgaard-Petersen and Gräf, Global Mufti, 251–4.

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6 Introduction

institution was still free from state intervention and enjoyed prestige among
the public.19 In addition, he is highly valued for his independence from rul-
ing elites, his appeal to rationality and to individual conscience and his call
for reform within a traditional framework.20 Qaradawi disseminates his mes-
sages through the skillful use of modern media,21 earning him the title “one
of the great public scholars” of our age.22 Qaradawi understands that in the
modern world various intellectual authorities, both Islamic and secularist,
often contest the authority of professional ʿulama‌ʾ. He reacts to this challenge
by distinguishing between true and traditional authority, such as his, and the
ostensible authority of lay interpreters. In his opinion, the fragmentation of
authority will end by strengthening the role of ʿulama‌ʾ in public life and legisla-
tion, because only they have the intellectual knowledge and training required
to guide the Muslim community to the right path.23 According to some observ-
ers, Qaradawi currently holds the religious-legal authority (marjiʿiyya) of Sunni
Islam, making him “the Pope of the Muslim World.”24
Inspired by Rida, who presented his ideal, the modernist ʿulama‌ʾ, as a “middle
group” between the traditional ʿulama‌ʾ and secularist intellectuals, Qaradawi
presents himself as the leader of the “Central Trend” (Wasatism), located be-
tween Salafi-Wahhabis,25 who resist any legal change, and Western-oriented

19 On Qaradawi’s history at al-Azhar, see Skovgaard-Petersen, “Qaradawi and al-Azhar,” 30–7.
20 Caeiro & al-Saify, “Qaradawi in Europe,” 121.
21 Galal, “Qaradawi and the new Islamic TV,” 151, 153, 155–6, 159–65, 172–4.
22 Skovgaard-Petersen, “Qaradawi and al-Azhar,” 29.
23 Galal, “Qaradawi and the new Islamic TV,” 162. Zaman (ʿUlama‌ʾ, 10) argues that, in the mod-
ern period, the lines of demarcation between the ʿulama‌ʾ, the Reformists and the Islamists
are often blurred. However, what generally differentiates the ʿulama‌ʾ from the other two
groups is their intellectual formation, their vocation and, most important, their orientation,
i.e. their sense of continuity with the juristic tradition. Unlike them, the Reformists and
the Islamists hold that this tradition and its representatives, the ʿulama‌ʾ, are not necessar-
ily required for understanding the “true” meaning of Islam. Mandaville (“Globalization,”
108–9) adds that Qaradawi is unique in adapting orthodox tradition to young Muslims and
in understanding that the current fragmentation of religious-legal authority requires the
conducting of a dialogue between various positions.
24 Khateeb, “Qaradawi as an authoritative reference,” 85–7. Cf. Gräf, “Qaradawi in
Cyberspace,” 403, 419–20, who argues that although Qaradawi enjoys worldwide popular-
ity, based on his activities in both traditional and new media, his authority as a scholar is
contested by competitors, e.g. lay preachers, intellectuals, scientists and politicians.
25 He calls them the New Literalists, pointing to their resemblance to the medieval Zahiri
school, which, because of its extremism, did not survive the test of history. On the bitter
rhetoric characterizing the Salafis’ attacks on Qaradawi, see Shaham, “Rhetoric.”

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Introduction 7

intellectuals, who support excessive reforms.26 Wasatism presents Islam as all-

encompassing (shumūl al-Islam), including five main aspects of life: religious,
social, political, legislative and cultural.27 Wasatism emphasizes, on the one
hand, the leniency (taysīr) of Islamic law and oppose the constraints and ri-
gidity of those who follow the teaching of a specific school or who interpret
the Qurʾan literally. On the other hand, Wasatism objects to legal thinkers who
allegedly grant exclusive status to utilitarian considerations while ignoring
the revealed texts. The Wasatis claim to be moderate and balanced, taking the
revealed sources seriously, while at the same time developing a deep under-
standing of the intentions of the shariʿa.28
As for his juristic method (Chaps. 2 and 3 will deal with it in depth),
Qaradawi’s main claim is that all legal fields are open to ijtihād, except for a
very few legal topics covered by authentic and definite textual injunctions. He
distinguishes between a selective ijtihād and a creative one. The first type ex-
amines the strength of the textual indicators on which the opinions of the law-
schools rely and selects those that best fit the circumstances of modern times,
that are more lenient for believers and that best serve the latter’s interests, as
defined by the intentions of the shariʿa. The second type, creative ijtihād, seeks
to produce novel legal rules, regarding either a topic already treated in the past
or a new topic created by modernity.

Current Research on Qaradawi

In the last decades, a number of works on different aspects of Qaradawi’s ideas

and on the ways by which he disseminates his messages have been published.29
As for the legal realm, scholars have focused mainly on thematic aspects of
his legal thought, namely, his opinions regarding political and social issues.

26 He calls them the New Muʿtazila, pointing to their resemblance to the medieval rational
trend that Islamic Orthodoxy excluded from its camp. See Krämer, “Boundaries,” 194–200,
and Khateeb, “Qaradawi as an authoritative reference,” 85. The Western-oriented intellec-
tuals that Qaradawi targets are Muhammad Arkoun (d. 2010), Muhammad Shahrur and
Saʿid al-ʿAshmawi (d. 2013).
27 This perception of Islam follows the thought of al-Banna, as stated in one of his letters. See
Polka, “The centrist stream,” 42 and n. 17; Zahalka, Shariʿa, 40–3. Dallal (“Appropriating,”
337) holds that the claim that Islamic law is all-encompassing is a Modernist one, seeking
to legitimize the nation-state’s legislation and institutions.
28 Gräf, “Wasatiyya,” 222–3.
29 See Gräf, “State of research,” for a review of the studies conducted on Qaradawi both in
European languages and in Arabic.

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8 Introduction

Thus, Zaman discusses Qaradawi’s opinions on jihad and suicide terrorist at-
tacks, family issues and the attitude of Islam to other religions, Stowasser deals
with his positions on women and Caeiro and al-Saify write on Qaradawi’s at-
titude toward the legal problems faced by Muslims who live in the West. Other
scholars conduct close textual analyses of specific legal opinions by Qaradawi.
Thus, Nafi analyzes Qaradawi’s permission for American-Muslim soldiers to
fight in Afghanistan and Caeiro studies a legal opinion in which Qaradawi
gave European Muslims permission to use interest-bearing mortgages to pur-
chase houses. Salvatore studies how Qaradawi uses maṣlaḥa as a means for the
ʿulama‌ʾ to achieve dominance in the political and public spheres; however, he
does not focus on maṣlaḥa as an integral part of Qaradawi’s legal methodology.30
Zaman explains that he has focused on Rida and Qaradawi (regarding
Middle Eastern Islam; he discusses other Muslim intellectuals with regard to
the Indian sub-continent), because they provide a broad picture of the main
trends and tensions within the reformist thought of the ʿulama‌ʾ. In addition,
both are committed to the main themes of Islam and their careers vividly
outline important developments of their age.31 As noted, Zaman examines
Qaradawi’s thought across a thematic scale and wonders about the unsolved
contradictions and the lack of ideological consistency that apparently prevail
in his legal opinions. Thus, for example, he claims that Qaradawi’s support of
polygyny and of terrorist suicide attacks in Palestine is not in line with his gen-
eral reformist thought and casts a shadow on the latter. Zaman nevertheless
mitigates his criticism of Qaradawi by arguing that traditionally, the ʿulama‌ʾ
have not necessarily judged their legal opinions according to the criterion of
coherence, as Western observers would expect, and that they have not always
noticed contradictions and lack of coherence where others discern them.32 In

30 Zaman, Modern Islamic Thought, 203–14, 273–81, 304–8; Stowasser, “Qaradawi on women,”
181–212; Caeiro and al-Saify, “Qaradawi in Europe,” 109–48; Nafi, “Fatwa and war,” 78–116;
Caeiro, “Bank interest,” 351–75; Salvatore, “Qaradwi’s maṣlaḥa,” 239–250. Many of the
above-mentioned articles are included in Gräf and Skovgaard-Petersen, Global Mufti,
which is the most comprehensive collection of essays on Qaradawi. The most extensive
study on Qaradawi in Arabic is Khatib, Qaradawi. Khatib is an associate of Qaradawi, who
worked for him on his TV program al-Shariʿa wa-l-Hayat. The main themes that Khatib
discusses in his work are the development of Qaradawi’s intellectual profile and the con-
struction of his authority. The book contains much useful information, but it neither ana-
lyzes Qaradawi’s legal methodology in an integrative way nor discusses his legal opinions.
Khatib (ibid., 20–2) mentions additional works in Arabic on Qaradawi, arguing that most
of them are of honorific and flattering character, while his is analytical and critical.
31 Zaman, Modern Islamic Thought, 39.
32 Ibid., 310–11.

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this manner, Zaman subordinates Qaradawi’s juristic deliberations to Western

liberal norms and at the same time forgives him for the lack of coherence re-
quired by Western rationalism.
As an alternative viewpoint, I suggest that we look for coherence in
Qaradawi’s methodology and for consistency in his application of this method-
ology to concrete cases rather than focusing on the contents of his legal opin-
ions. This viewpoint does not impose standards that are external to Islamic
juristic culture on Qaradawi’s legal opinions but holds these opinions to the
same standards that this juristic culture established for itself. To do justice to
Zaman, his work on Qaradawi does not limit itself to the thematic aspects but
includes a critical analysis of his legal methodology,33 to which I refer through-
out this book.

Modernity, Westernization and Tradition

The analysis in the social sciences of the relationship between (Western) mo-
dernity and Islam has suffered from an essentialization of both concepts.34
According to one definition, “modernity is conceived as the sort of politi-
cally relevant discourse mediated by intellectuals once the idea of rationality
is recognized as embodied in society, no longer confined to a transcendent
logos.”35 According to another, “the dominant model of modernity—combin-
ing economic factors linked to the rise of capitalism, socio-political dynamics
related to the formation of increasingly centralized and bureaucratized states,
and cultural orientations putting a premium on individual and collective
­autonomy—reflects the historical experience of European societies or, better,
of some key fragments of north-western Europe.”36 In early-modern Europe,
modernity was brought about mainly by urbanization, industrialization, the
spread of mass education, and its dissemination was facilitated and expe-
dited by modern science and technology, development and the mass media.

33 See, for example, Zaman, “ʿUlama‌ ʾ and contestations,” 222, where he argues that
Qaradawi’s “effort to move past the boundaries of the [law] schools … leaves no better
mechanism in place than vague arguments about whether particular legal norms do or
do not conform to the foundational texts or to considerations of the common good.”
34 Masud and Salvatore, “Western Scholars,” 36; Salvatore, Islam and the political discourse,
xiii. See also ibid., p. 26, in which Salvatore claims that Jürgen Habermas’ account, i.e.
that the path to European Enlightenment was forged by fully secularized individuals, is
refuted by evidence for the long historical development of a variety of religious attitudes.
35 Salvatore, Islam and the Political Discourse, xiii.
36 Salvatore, “Tradition and Modernity,” 26.

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10 Introduction

Social scientists however have not grasped these processes and institutions as
the essence of modernity, rather they have taken the development of human
understanding of “subjectivity” to be that essence. The latter has four main
connotations: individualism, the right to criticism, autonomy of action and in-
dividual self-consciousness. This self-consciousness enables each individual to
pursue the ends of his particular welfare, rather than to identify himself only
with collective life and shared experience and values, as was common in pre-
modern societies. In addition, modernity is associated with consciousness of
time and of universal subjectivity.37
In the 19th century, it was believed that the world was modernizing in a
steady linear manner and that Eastern cultures, conceived as “retarded,” would
inevitably modernize along the progressive European model. In the 1950s, so-
ciologists framed this vision through “the modernization theory.” This theory
stated that the cultural program of modernity as it developed in Europe and
the basic institutional constellation that emerged there would ultimately take
over in all modern societies; with the expansion of modernity, they would pre-
vail throughout the world. “The modernization theory” had a secular inclina-
tion. It understood religion as a relic of traditional societies, due to disappear
upon these societies completing their modernization.38
With the passage of time, it became evident that the modernization pro-
cess did not follow the expected model, since non-Western societies developed
anti-modern and anti-Western themes, which were modern in themselves.39
The realization that modernity is not identical to Westernization led to the
development of the concept of “multiple modernities,” associated with the so-
ciologist Shmuel N. Eisenstadt. According to this perception, modernity can be
Western, capitalist and secular, or, vice versa, Eastern, socialist and religious.
The important aspect is the agency of the individual and the understanding
that in each type of modernity the individual is able to choose between a num-
ber of options.40
“Islam was particularly prone to become the object of a kind of social-­
scientific essentialization as a ‘traditional religion’ preventing a modern

37 Helfont, Qaradawi, 15–17, 42, explaining Habermas’ sociological understanding of

G. W. F. Hegel’s “subjectivity.”
38 Helfont, Qaradawi, 14.
39 Regarding Islamic societies, the collapse of the “modernization theory” took place in the
1970s, caused by the 1973 Israeli-Arab war, the subsequent oil crisis and the emergence of
political Islam. Salvatore, Islam and the political discourse, xvi.
40 Salvatore, “Tradition and Modernity,” 5.

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Introduction 11

societal differentiation and the autonomization of political power from the

tutelage of religious authority.”41 Indeed, the limited compatibility of Islam
with modernity, or, put differently, Islam’s inherent deficits in coping with a
modernity considered to be, at least initially, an exclusively Western phenom-
enon, is one of the most recurring themes and standards in scholarly discourse
on Islam and modernity from the nineteenth century till the present day.42 The
abysmal differences between Western modernity and Islamic traditionalism
have been phrased through a family of dichotomies, e.g. science (in Europe)
versus revelation (in Islam), secularism versus religion, materialism versus
spiritualism, humanism versus religiosity, immanence versus transcendental-
ism, market capitalism versus totalitarianism, and rationalization of society vs.
blindly following authority.43
Between roughly the 1930s and the 1960s, the Orientalists or Oriental
Islamologists (most prominently, Gustave E. von Grunebaum and Hamilton
R. A. Gibb44 were the most outspoken in articulating a diagnosis of Islam’s
relation to modernity. They maintained that “Islam is in its very nature in-
capable of reform and progressive adaptation to the expansion of human
knowledge.”45 In their view, Muslim societies could not survive in the process
of global change. An important aspect of their work was the assessment of
Islamic Modernism.46 They dubbed Islamic Modernists those Muslim leaders
and thinkers who advocated modern changes within an Islamic framework, or,
in other words, intellectuals of a reformist type who attempted to develop a
viable framework of thought for Islam in an attempt proactively to cope with
Western modernity.47 Orientalists considered the Islamic modernists neither
modern enough, for their themes were allegedly drawn from the Western expe-
rience of modernity, nor as representing authentic Islam, which was, according

41 Salvatore, “Tradition and Modernity,” 14; he agrees in p. 31 that this is a relative weakness
of Islamic civilization vis-à-vis the encroaching West.
42 Masud and Salvatore, “Western Scholars,” 50. On German Orientalism during the first two
decades of the 20th century, which informed Max Weber’s sociologizing of Orientalism,
see Salvatore, Islam and the Political Discourse, 97–107.
43 Masud and Salvatore, “Western Scholars,” 37.
44 On their ideas, see Masud and Salvatore, “Western Scholars,” 40–1, 45–8, respectively.
45 Masud and Salvatore, “Western Scholars,” 40.
46 This is a Western term. In Islam, the terms of “revival” (iḥyāʾ) and reform (iṣlāḥ) are used.
47 Masud and Salvatore, “Western Scholars,” 45.

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12 Introduction

to them, the preserve of conservative ʿulama‌ʾ.48 In addition, the Orientalists

held that Islamic Modernism was apologetic.49
Between the 1950s and the 1970s, a shift from Orientalist interpretations of
Islam to the analysis of Muslim societies by modernization theorists50 took
place. Modernization theorists adopted Orientalist views of Islam vis-à-vis
modernity—that Muslim societies have no choice but to modernize and that
they could do so only by adopting the Western model—51 but transformed
them according to the expectations commanded by their theoretical approach.
Where the Orientalists were convinced of the fact that Islam as a comprehen-
sive, backward-looking traditional culture constituted an obstacle to Muslims’
efforts to cope with modernity, the modernization theorists turned the argu-
ment around and proposed that Islam inspired social forces engaged in a fierce
battle with an emerging secular leadership. Within this dynamic picture, Islam
itself appeared as more ambivalently positioned towards modernity than
shown by earlier analysis: while modernization theorists predicted the demise
of Islamist forces, they also hypothesized that some elements of Islamic tradi-
tions could enliven the forces of change.
The terms of the debate changed when a new wave of scholarship by young-
er Islamologists and historians of Islam (e.g. Peter Gran and Reinhard Schulze)
in the late 1970s started to reframe the issue of Islam’s relation to modernity.
They showed that key elements of innovative social activities and thought
emerged within the Muslim societies of the 18th century, prior to their encoun-
ter with the forces of European colonial modernity. This thesis was aimed to
refute the argument of both Orientalists and modernization theorists accord-
ing to which modernity has come to Islam only from the West. They offered the
possibility of interpreting the issue of Islam and modernity less as an oxymo-
ron that requires adaptations and responses than as a theme in its own right,
inherent in the history of Islam and in its strained relations with the West, both

48 The question of who speaks for Islam is very crucial to Western scholars. For most of
them, the legitimate speakers are undoubtedly the conservative ʿulama‌ʾ. See Masud and
Salvatore, “Western Scholars,” 48.
49 Masud and Salvatore, “Western Scholars,” 45, 47. Masud and Salvatore argue (ibid.,
47) that any apologetic attitude on the part of the Modernists is directed not towards
Western criticism but in the first place towards Muslim conservatives, as well as towards
Westernized Muslims. Addressing the conservative, the Islamic Modernist is defending
the authenticity of his interpretation of Islam, and to the Westernized Muslim he is justi-
fying his view that that modernity is achievable while remaining Muslim.
50 Mainly Daniel Lerner (d. 1980) and Manfred Halpern (d. 2001). On their ideas, see Masud
and Salvatore, “Western Scholars,” 42–3.
51 Masud and Salvatore, “Western Scholars,” 40.

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Introduction 13

before and after the onset of modern colonialism. While this interpretation
remains controversial,52 it has contributed to opening up the analysis of Islam
and modernity by critically reconsidering all older standards and themes and
so bringing it closer to the framework of multiple modernities.
Both Oriental Islamologists and modernization theorists based their analy-
sis of the relationship between Islam and modernity on a perception of tradi-
tion as a rigid and static entity. Traditions, often identified with religions, have
often been considered, from the viewpoint of Western modernity, as little more
than remnants of earlier societies and cultures. Put differently, tradition was
viewed as a mechanism that excludes a capacity of innovation and prevents a
transformation of communitarian cohesion into more abstract and differenti-
ated forms of the social bond, those considered proper to modern societies.
Seen in that way, traditions would have to be either absorbed or destroyed in
the course of modernization. From this theoretical perspective, the relation
between Islam and modernity can be only one of deficiencies (measured by
Islam’s alleged insufficient capacity to supersede traditions), dependencies
(on Western modernity) and idiosyncrasies (in terms of distorted outcomes of
a dependent modernization).53
An understanding of tradition as a framework facilitating social agency and
the changes and adjustments that a tradition makes continuously in order to
create the semblance of permanence could have taken shape only after the
collapse of the “modernization theory.”54 Current revisionist ideas view the
relationship between tradition and modernity as dialectic and dynamic and
emphasize the role of tradition as an agent of modernization, tradition being a
modality of change.55 Salvatore proposes viewing traditions “as bundled tem-
plates of social practice transmitted, transformed and reflected upon by argu-
ments and discourses across cultures and generations. In this sense, traditions
are relevant both within pre-modern communities and—in a starkly mutated
form—within modern or modernizing societies.”56

52 Masud and Salvatore, “Western Scholars,” 49–51, referring to the critiques of Fred De Jong
(in 1982) and Bernd Radtke (in 1994) of Gran and Schulze.
53 Salvatore, “Tradition and Modernity,” 31.
54 Masud and Salvatore, “Western Scholars,” 44.
55 Waldman, “Tradition,” 318–40. See also Brown (Rethinking tradition, 2–3), who holds that
tradition both changes and is used to justify change. For the continuous intellectual value
of tradition for the construction of communities of meaning and cultures of authority,
see Abou El Fadl, Speaking, 31, 104, 121–5.
56 Salvatore, “Tradition and Modernity,” 6.

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14 Introduction

Tradition is therefore not the opposite or the internal limit of modernity, in-
tended as the manifestation of human autonomy and creativity. Tradition and
modernity are neither antithetical modes of social being, nor typologically dis-
tinct social formations, but forms of the social bond that are different but can
become organically connected in various ways. It is the combination of certain
types of tradition with given processes of transformation that produces dis-
tinctive societies that we call ‘modern.’ Modern societies can be related to each
other and form civilizational clusters to the extent they are premised on simi-
lar combinations of traditions and modern patterns.57 Moreover, a conception
of civilizations as unique constellations of culture and power, in which a tradi-
tion is the dynamic cultural dimension of a civilization, has helped overcome
Eurocentrism and allows us to conceive of different pathways to modernity in
the form of multiple modernities.58
Dale Eickelman and James Piscatori apply these observations on the fluid-
ity of tradition to modern Islamic history. Moreover, they claim that since we
do not have any access to the “real” or “authentic” past, any tradition-based
claim is necessarily an invented interpretation and has a political character.
The political use of traditional claim-making is the result of the fragmentation
and the democratization of religious authority (see below), which enabled
the public to talk back to religious and political authorities. The increasing
awareness of the numerous interpretations of the Islamic revealed texts have
enabled various Islamic groups to make authoritative claims in the name of
tradition. Thus, Islamic reformers and Islamists have often used the concept of
tradition to justify innovations. They have argued that the latter represent the
Islamic essence and have to be heeded in the framework of the general obliga-
tion to obey God, His messenger and the communal holders of authority.
How is it possible to maintain the conceptual fiction regarding the constancy
of Islamic doctrine while admitting its numerous interpretations? Eickelman
and Piscatori argue that this is possible because of the objectification of Islam
as a system of rules and perceptions that cover the entire spectrum of human
life, abstracted from culture and community. This objectification and abstrac-
tion make it possible to argue about the “true” Islamic interpretation. When
this claim of authenticity is connected to the determination that each aspect of
life is tested according to doctrinal rules, it is possible to explain how Islamists

57 Salvatore, “Tradition and Modernity,” 5–7, drawing on the work of Alasdair MacIntyre and
Craig Calhoun.
58 Salvatore, “Tradition and Modernity,” 8–11.

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Introduction 15

succeed in justifying their desire for a comprehensive social reform, based on

allegedly traditional claims.59
Hussein Ali Agrama criticizes Eickelman and Piscatori for their interest not
in Islamic tradition per se but in the “positive” role of tradition as a manipula-
tive tool for convincing Muslims to accept as traditional practices and rules
that are not actually part of their tradition. Moreover, Eickelman and Piscatori
allegedly misconstrue the features of contemporary Islamic religiosity as prob-
lems, rather than comprehending that the modern concepts and assumptions,
which they use for understanding this religiosity and regulating it, are problem-
atic. As an alternative scholarly project, Agrama suggests, first, to distinguish
between referencing the past as an authority, and referencing past authorities,
which is what Islamists do and is different from a traditional claim. In addition,
instead of viewing contemporary Islamic religiosity as a problem or as an aber-
ration that one has to explain, scholars are advised to seek an understanding of
how this religiosity is lived and experienced, paying attention to the reasoning
styles that Muslims have found persuasive and felt compelled to respond to.60
Relying on these current scholarly understandings of the concept of “tradi-
tion” as a dynamic entity, I further argue in the conclusion that Qaradawi’s
juristic enterprise, by creating an intensive, sincere and bold dialogue with the
classical Islamic juristic heritage, forms an authentic part of Islamic juristic
tradition and brings it to bear on modern developments and needs.

Classical Legal Methodology and Its Operation in the Classical

Islamic World

Legal methodology is a theoretical, methodological and hermeneutical system

that underlies the means by which jurists derive legal norms and rules. In any
complex culture, law is self-conscious and necessarily is anchored in a theoreti-
cal discourse that rationalizes and justifies its prescriptions, methods, precepts
and rationales.61 In Islamic law, legal theoretical thinking, starting from the 8th
century, aimed to transform the process of “understanding Allah’s (the formal
legislator’s) will” from an intuitive and spontaneous one, based extensively on
logical reasoning, to a more disciplined and structured and thus less arbitrary
one. The jurists aimed to establish the most reliable way to find Allah’s will, a

59 Eickelman and Piscatori, Muslim Politics, Ch. 2, especially 44–5. See also Agrama,
Questioning Secularism, 11–13.
60 Agrama, ibid., 17–19.
61 Hallaq, Shariʿa, 501.

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way or a method upon whose main characteristics Muslim jurists could agree,
thereby instilling uniformity in the process of deriving the law. The theory of
uṣūl al-fiqh provided the answer for that.62
Based on textual interpretation (Allah’s will is embedded in texts—the
Qurʾan and to a lesser extent the hadith), the application of uṣūl al-fiqh could
not and was not intended to produce uniformity of the positive legal rules.
Interpretive strategies were diverse; while some jurists, “followers of the ha-
dith” (ahl al-ḥadīth), tended to rely on the textual sources, others, “follow-
ers of reason” (ahl al-ra‌ʾy), inclined towards rational tools (mainly analogy).
Moreover, the existence of a variety of legal practices in different geographical
areas led to the development of a diversity of legal opinions and eventually to
the crystallization of four law-schools in Sunni Islam. Each of these schools,
which was an independent theoretical and doctrinal entity, had its own posi-
tive law, which often differed considerably from the laws of other schools.
If the process of ijtihād, i.e. derivation of new legal rules based on uṣūl al-
fiqh, did not pretend to bring about the uniformity of such rules, how did the
Islamic legal system attain the reasonable level of uniformity that any legal
system needs? Starting from the 10th century, a stage in which the fiqh as a
doctrine was already fully developed, the legal theorists of each school of law
devised tools for handling the variety of school opinions.63 The development
of these tools was essential for determining the preponderant opinion on each
topic within each school, which was essential for the school’s survival and suc-
cess. The duty of each generation of jurists to rely in their legal interpretation

62 It is important to note that the development of the fiqh preceded that of uṣūl al-fiqh.
Thus, “uṣūl al-fiqh seek to capture the normatively preferable methods of interpretation
and reasoning employed in the world of fiqh law and its interaction with the social and
judicial world.” As a result, for the part of the fiqh that was developed prior to the 10th cen-
tury, uṣūl al-fiqh have a descriptive value, while for the part of the fiqh that was developed
subsequent to that century, they have a prescriptive value; see Hallaq, ibid., 73–4.
63 Hallaq, Shariʿa, 76–7. The first main tool was “giving preponderance” (tarjīḥ), i.e. a sys-
tematic comparison of legal opinions, based on weighing the evidence supporting each
opinion. The second tool was “making something correct” (taṣḥīḥ), meaning a herme-
neutical process by which an opinion is established, among all the competing opinions,
as the most authoritative in the school. There is no need here to get into the scholarly
debate about whether the process of ijtihād ended in the 10th century. It seems that most
students of Islamic law currently agree that the number of jurists capable of independent
ijtihād decreased considerably after the 16th century, see Hallaq, “Gates of ijtihād,” 29–34.
In any case, the transformation from ijtihād to taqlīd was far from meaning the stagnation
of Islamic law. Rather, the latter was able to preserve its dynamics and viability through-
out the period of taqlīd.

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Introduction 17

on the latest authoritative doctrinal interpretation existent in their school se-

cured the stable continuity of school doctrine from one generation to the next.
Thus, the law within each school was largely predictable.
If the process of ijtihād itself, based on uṣūl al-fiqh, was not able to result in
complete uniformity of legal opinions, what it did provide was accountabil-
ity. Each jurist who practiced ijtihād had to pass a certain threshold of juristic
knowledge, and in addition, he had to convince, by both his oral and written
products, that he followed the sequence of uṣūl al-fiqh sincerely and meticu-
lously before handing down his legal opinion. In that way, he was accountable
for his juristic products.64

The Renewed Interest in the Textual Sources of Islamic Law

The dominance of the law-schools meant that each school’s jurisprudential lit-
erature became the primary legal source for the jurists affiliated to that school.
In this framework, the Qurʾan and the hadith became residual legal sources.65
However, in 17th-century Arabia, a movement that demonstrated renewed in-
terest in ijtihād based on direct interpretation of the textual sources, especially
the hadith, emerged. The Neo-Ahl al-Hadith movement, largely influenced by
the juristic thought of the Hanbali scholar Taqi al-Din b. Taymiyya (d. 1328),
emphasized three legal sources: the Qurʾan, the hadith and the consensus of
the Salaf. This trend continued in the 18th century in which, against the back-
ground of a sense of moral and social decline, the Hanbali perception that
the Prophetic tradition must be the benchmark for deciding on the validity
of legal rules, gained weight. Carrying the banner of reviving the Prophetic
sunna, scholars affiliated with this trend were no longer satisfied with study-
ing their school’s legal literature; instead, they studied hadith collections and
based their ijtihād on that material.66
Muhammad b. ʿAbd al-Wahhab (d. 1791), the founder of a militant movement
that fought against popular practices of worship that it perceived as infringing
on the unity of Allah (Wahhabism, the “mother” of all modern revivalist move-
ments), was a student of the above-mentioned scholastic network. He held
that the jurists of his age were not entitled to conduct the most innovative and
independent type of ijtihād (ijtihād muṭlaq) once performed by the eponyms

64 Abou El Fadl, Speaking, 45–7. See also ibid., 35, where he states that the earmark of classi-
cal juristic legitimation was consistency, authoritative reference and predictability.
65 Mayer, “Methodology,” 184–5.
66 Brown, Rethinking tradition, 22–7.

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of the law-schools. Rather, he supported the reevaluation of the latter’s legal

rules according to the strength of the textual indicators (adilla, sing. dalīl) sup-
porting each rule. He added that practicing taqlīd to a particular school was
not legitimate for certified jurists but permissible for nonprofessionals (practi-
cally speaking, Wahhabi jurists have performed taqlīd to the Hanbali school).67
In the 18th century, two figures stood out in their call for renewed ijtihād
based on the hadith corpus. The first was the Indian Shah Wali Allah (d. 1762),
who himself studied hadith in Arabia. The second, the Yemenite Muhammad
al-Shawkani (d. 1834), claimed not only that ijtihād was permissible to the ju-
rists of his age, but that the practice of ijtihād had become easier because the
hadith and the legal literature, already collected and sorted out, was now more
accessible to jurists than it had been for earlier generations. From the legacy
of Wali Allah and Shawkani the 19th-century Ahl al-Hadith movement in India
developed. Its followers held that each text in the Qurʾan or the sunna allows
for only one interpretation, they rejected analogy altogether and restricted the
consensus to that of the companions (to the Prophet).68

Modern Trends in Islamic Legal Interpretation

Islamic revivalist trends in the 17th and 18th centuries were the result of reli-
gious intellectual tensions and developments that were internal to Muslim so-
cieties. However, Islamic reformist movements in 19th-century India and Egypt
were mainly a reaction to European culture, introduced to Middle Eastern and
Indian Islamic societies in a colonial framework of overwhelming technical,
military and economic superiority. From the point of view of the ʿulama‌ʾ, this
process had a number of direct and immediately devastating results. The es-
tablishment of centralist and bureaucratic modern states on Muslim territories
involved the introduction of state-sponsored civil education systems and the
foundation of civil legal systems, applying legal codes largely imported from
Europe. These developments deprived the jurists of their traditional monopoly
in the educational and legal fields, which had been their main source of social
status and economic strength.
Reformist ʿulama‌ʾ recognized the dangers that European political and cul-
tural hegemony posed to their own societies, yet they wished to partake in
“the European age.” Most of their writing aimed to prove that Islam was ca-
pable of absorbing European institutions and social patterns. They legitimized

67 Vogel, Islamic Law, 72–7.

68 Brown, Rethinking tradition, 22–32.

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Introduction 19

secular European institutions by reinterpreting Islamic tradition.69 A major

part of this reinterpretation process referred to Islamic legal theories, which
had to be rearticulated in order to be suitable to the ever-changing conditions
of modernity.
The two most prominent figures of this Islamic reformism were the Indian
Sayyid Ahmad Khan (d. 1898) and the Egyptian Muhammad ʿAbduh (d. 1905).
Until the 1870s Khan was a follower of the Neo-Ahl al-Hadith movement, but
then, probably due to the European scholarly critique of the authenticity of
the hadith corpus, he changed his mind and supported the restriction of the
hadith’s importance as a legal source.70 Using the classical differentiation be-
tween the Qurʾan as a “recited revelation” (waḥy matlū) and the hadith, which
was not, he upheld the view that the sunna was inferior to the Qurʾan and
subordinate to it. Consequently, he argued that, in addition to the Qurʾan, only
multiply-transmitted Prophetic reports (ḥadīth mutawātir) constituted a legal
source. Suspecting Islamic classical hadith criticism, he argued that the ele-
ments of the hadith material that relate to daily life are not part of revelation
and therefore are not legally binding. He emphasized that the Qurʾan is in-
dependent from the hadith and that interpreting the former solely according
to the latter limits the significance of the Qurʾan to a specific historical era
and thus abolishes its universal and eternal meaning. Finally, he claimed that,
rather than the hadith, the main tools for interpreting the Qurʾan were reason,
nature and philology.71
Khan’s approach led to the establishment of the Ahl al-Qurʾan movement in
Punjab in the early 20th century. The initial claim of the movement was that
only the Qurʾan could serve as an example, because of its eternal character, and
that it included all the essential features of Islam.72 At a later stage, the Indian
Ahl al-Qurʾan adopted opinions that were even more radical. They claimed
that expecting to find every element of Islamic practice within the Qurʾan was
unrealistic because the Qurʾan included only general principles. Thus, the ex-
traction of specific legal rules from these principles was the task of the politi-
cal authority and had to follow reason. Their Qurʾan exegesis was rational and
speculative and they held that the various parts of the Qurʾan interpret each

69 Dallal, “Appropriating the past,” 335–7.

70 On the modern critical trends in European academia concerning the authenticity of the
hadith, see Brown, Hadith, Ch. 8.
71 Brown, Rethinking tradition, 32–7, 44, 64, 66, 88, 97. For ʿAbduh’s attitude towards the
hadith, see ibid., 37, 64, 66, 74, and 130.
72 For example, they argued, against Islamic consensus, that the number of daily prayers
was three, according to the Qurʾan, and not five, as indicated by the hadith.

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20 Introduction

other (tafsīr al-Qurʾān bi-l-Qurʾān). In Egypt, a small number of thinkers held

similar views regarding the Qurʾan, but their impact on the juristic discourse in
that country was negligible when compared to that of the Indian movement.73
The Egyptian Islamic reformists, inspired by Jamal al-Din al-Afghani (d.
1897) and his disciple ʿAbduh, called for reopening the gates of ijtihād in the
field of human transactions (muʿāmalāt, as opposed to the field of worship,
ʿibādāt),74 meaning “the articulation of new legal norms on matters not settled
by definitively known indicants in the [foundational] texts.”75 They wished to
institutionalize the process of ijtihād and the mechanism of consensus. In clas-
sical times, ijtihād was an endeavor of an individual jurist and consensus was
that of the jurists of a particular school of law, which established itself only
retrospectively and informally. In contrast, the reformists suggested placing
ijtihād collectively in the hands of a council composed of the leading jurists of
the age and nominated by the ruler. According to this line of thinking, it would
be possible to ascertain the consensus among the council’s members immedi-
ately and such consensus would bind the entire Muslim community.76
The combination of the Neo-Ahl al-Hadith movement and the Western-
influenced reformist movement created, in the first three decades of the 20th
century, modern Salafism, associated mainly with Rida, ʿAbduh’s leading disci-
ple. Salafism in this context signifies the rejection of the authority of the medi-
eval law-schools and the insistence on unmediated access to the foundational
texts as the source of all norms. In addition, this trend emphasizes reliance on
the example of the “pious forefathers,” as contrasted with understandings of
Islam “distorted” by centuries of legal, theological, and mystical debates, self-
serving ʿulama‌ʾ, and despotic rulers.77 Without going into much detail here,
Rida assigned the Qurʾan, the sunna and the consensus of the companions a
central role as legal sources, regarded analogy as a less important legal source
and welcomed the use of considerations of maṣlaḥa in the field of human
transactions, unless they contradicted clear textual orders.

73 Brown, Rethinking, 38–42.

74 The distinction between ʿibadāt and muʿāmalāt appears in the works of Ibn Taymiyya,
Najm al-Din al-Tufi (d. 1316) and al-Shatibi; see Opwis, Maslaha, 187, 217, 259 f., respectively.
75 Zaman, Modern Islamic Thought, 76.
76 On the crucial functions that the idea of collective ijtihād serves for the ʿulama‌ʾ, see
Zaman, “ʿUlama‌ʾ and contestations,” 227–9.
77 Zaman, Modern Islamic Thought, 7.

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Introduction 21

Scholars have criticized the various dimensions of the reformist-modernist

project heavily, often labeling it a failure.78 As for the legal component of this
project, the legal theories of ʿAbduh and Rida have not fared any better (an
extensive analysis of critiques of Rida’s legal theory is at the heart of Ch. 1).

The Fragmentation of Juristic Authority in Recent Decades and the

Current Map of Religious-legal Trends

The discourse analyzed so far has involved mainly professional jurists, wheth-
er those who upheld a literal interpretation of the textual indicators or those
who opted for a rational interpretation of the texts. This characteristic of the
discourse reflects the hegemony enjoyed by the ʿulama‌ʾ in the religious-legal
field.79 This hegemony started to break down, mainly as the result of the print
and the public education revolutions, which exposed a growing number of
Muslims to religious-legal knowledge by making the legal literature more ac-
cessible to them. The development of mass media (radio, television) and new
media (satellite television, the Internet and cellular phones), which enable the
rapid and efficient distribution of information and knowledge, uncontrolled by
any central agency, has transformed Islamic discourse into a global and more
popular one. Because of these changes, new “actors”, i.e. intellectuals with a
background of secular training and autodidacts, have started to take part in
the religious-legal discourse, especially from the 1970s onwards, parallel to the
strengthening of Islamist movements in the public sphere. On the one hand,
the unprecedented abundance of legal information and opinions creates a
chaotic reality and even a crisis of authority, in which there is no consensus
on the hierarchy of religious-legal interpretation.80 On the other hand, the dire
need to overcome the confusion created by the flood of legal interpretations
gives an advantage to certified jurists who are capable of using new media for
sorting out this confusion (as demonstrated by Qaradawi, see below).81

78 Dallal (“Appropriating,” 335, 337–8, 345, 347–9) provides a very useful concise portrayal of
this Orientalistic “failure” discourse, focusing on the works of Gibb, Elie Kedourie, Nadav
Safran, Charles D. Smith and especially Malcolm Kerr. Dallal, citing recent works by Talal
Asad and Mahmoud Haddad, rejects this discourse, which emanates in his view from
static and normative attitudes towards Islamic tradition.
79 For an illuminating analysis of the sources, structure and character of the ʿulama‌ʾ’s “per-
suasive authority” in classical Islamic law, see Abou El Fadl, Speaking, Chap. 2.
80 Bulliet, “Crisis of authority;” Turner, “Religious authority;” Taji Farouki, “Introduction,” 3,
13–15.
81 Zaman, “ʿUlama‌ʾ and contestations,” 229.

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22 Introduction

Among the new “actors” in the juristic discourse, one may find those the-
orists that Wael Hallaq labels the religious liberalists, e.g. the Egyptian civil
judge al-ʿAshmawi, the Pakistani-American academic Fazlur Rahman (d. 1988)
and the Syrian engineer Muhammad Shahrur (the last two focus on innovative
exegesis of the Qurʾan). According to Hallaq, while the religious utilitarian-
ists focus on considerations of maṣlaḥa, needs and interests, and value them
above the revealed texts, the religious liberalists develop a textual or contex-
tual method of interpretation, mainly of the Qurʾan, by which they emphasize
Islamic law as directed by the divine humanistic intention. In this manner, they
strive to create a dialectic between the spirit of the texts and modern realities.
Although some observers view the religious liberalist project as more refresh-
ing and intellectually impressive than that of the religious utilitarianists, the
latter have been more influential within modern state legislation. Because of
their secular educational and ideological background and their radical textual
interpretation, the influence of the religious liberalists upon the juristic dis-
course is insignificant and they are not considered to be within the consensus.82
Jonathan Brown83 discerns four main attitudes towards the textual sources
(especially the hadith) in modern Islamic thought, arranged from “liberal” to
“conservative”: (1) the Islamic Modernists and the “Qurʾan Only” movement
(equivalent to Hallaq’s religious liberalists), (2) the Modern Salafis (equivalent
to Hallaq’s religious utilitarianists), (3) the Traditional Salafis and (4) the Late
Sunni Traditionalists. Briefly, the first group, composed mainly of Western-
educated Muslim intellectuals, views the Qurʾan as a legitimate source of law
(which must be interpreted in light of rationalism, science and humanistic
ethics). They suspect the authenticity of the hadith and reject consensus as a
source of law.84 The second group, the Modern Salafis, holds that the Qurʾan
has preference over the hadith as a legal source, that only massively-transmit-
ted Prophetic reports can be relied upon, and that a hadith of individual nar-
rators (ḥadīth al-aḥād) maybe acceptable only if transmitted by well-known
jurists and does not contradict the Qurʾan and natural law.85 The third group,
the Traditional Salafis, reject adherence to the law-schools and claim that the
authentic message of Islam is located in the hadith and that only sound (ṣaḥīḥ)

82 Hallaq, Legal theories, 231–54; idem, Shariʿa, 519–42.

83 Brown, Hadith, Ch. 9.
84 Among the figures included in this group are Chiraj ʿAli (India; d. 1895), the founder of
the Ahl al-Qurʾan movement in India; Muhammad Tawfiq Sidqi (Egypt; d. 1920), Mahmud
Abu Rayya (Egypt; d. 1970), Fazlur Rahman, Amina Wadud (USA) and Fatima Mernissi
(Morocco).
85 Included in this group are Khan, ʿAbduh, Rida, Shaltut and Muhammad al-Ghazali.

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Introduction 23

hadiths are legally acceptable (hence, their strong emphasis on rigorous ex-
amination of the chain of transmitters, isnād, of each report).86 The fourth and
last group (in which Brown includes Qaradawi), the Late Sunni Traditionalists,
hold that the juristic corpus of the schools is the basis for adaptation of the
law to current needs. Generally, they accept the reliability of the canonic com-
pilations of the hadith and believe that scrutiny of the content of each hadith
(matn) should be included in hadith review. Finally, they argue that legal in-
terpretation based solely on the hadith (in the Traditional Salafi way) is naïve.
Thus, jurists and not hadith experts should decide on the weight of the hadith
within the process of legal interpretation.87

86 Brown counts in this group the Wahhabiyya movement, Muhammad b. Ismaʿil al-Sanʿani
(Yemen; d. 1768), al-Shawkani, Jamal al-Din al-Qasimi (Syria; d. 1914), Tahir al-Jaza‌ʾiri
(Syria; d. 1920), Wali Allah; the founders of the Ahl al-Hadith movement in India; and
Nasir al-Din al-Albani (Syria-Saudi Arabia-Jordan; d. 1999) and his followers.
87 Other figures included in this group are Muhammad Zahid al-Kawthari (d. 1951),
Muhammad al-Ghazali, ʿAli Jumʿa (Egypt), Mustafa Sibaʿi (Syria; d. 1964) and Sayyid Qutb
(Egypt; d. 1966). Notice that Brown categorizes al-Ghazali as both a Modern Salafi and a
Late Sunni Traditionalist. He explains that al-Ghazali’s attitude to the hadith is character-
istic of the Modern Salafis. However, the cultural and political atmosphere in which he
lived (turbulent Egypt between the 1970s and the 1990s) was more conservative religiously
than that experienced by Modern Salafis, such as ʿAbduh and Shaltut. Thus, in his rhetoric
and positions, al-Ghazali is close to the Late Sunni Traditionalists. As I demonstrate later,
this double categorization of al-Ghazali is suitable for Qaradawi as well.

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 Chapter 1

Rashid Rida and Academic Criticism of His

Juristic Thought

Background: The Concept of maṣlaḥa and maqāṣid al-sharīʿa in

Classical Islamic Legal Theory

Before we proceed to discuss modern trends in Islamic legal interpretation,

some background on the role of maṣlaḥa in pre-modern legal theory is nec-
essary, because this source of law occupies a central role in the teachings of
modern theorists in general, and of Rida, in particular.
Starting from the 8th century CE, the historical conflict about the sources of
Islamic law emerged from a fundamental theological-moral debate between
two intellectual positions regarding moral knowledge. The Muʿtazila, associ-
ated with what Opwis calls rational objectivity, held that actions are good or
bad as a matter of their nature and that human intellect is able to assess their
value unassisted by revelation. A good act is one that the human mind finds
beneficial, while a bad act is one that the human mind considers harmful. A
legal decision is therefore correct and legitimate, if it permits beneficial acts
and prohibits harmful ones. The Hanbalis, associated with theistic subjectiv-
ism, emphasized that human intellect is unable to achieve moral knowledge
independently of divine revelation. According to this position, an act is good
only if Allah obligated it or is bad only if Allah prohibited it. A legal decision
is therefore legitimate only if derived from the revealed law.1 Parallel to the
crystallization of the law-schools in the 10th century, the Ashʿarite theological
school settled this dispute by way of a compromise that inclined to the posi-
tion of the Hanbalis.
In the legal field, the acceptance of the Asharite compromise drove all law-
schools to accept the legal theory of Muhammad b. Idris al-Shafiʿi (d. 820).
The adoption of al-Shafiʿi’s system, which grants superiority to textual sources
(the Qurʾan and the hadith)2 over human-rational ones (consensus and anal-
ogy), demonstrated the victory of the supporters of the textual sources (ahl
al-ḥadīth) over the jurists who upheld reason as the main tool for identifying
Allah’s law (ahl al-ra‌ʾy). However, the law-schools accepted al-Shafiʿi’s theory

1 Opwis, “Maslaha,” 188–9.

2 On the legal functions of the hadith during the pre-modern period, see Brown, Hadith, Ch. 5.

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Rashid Rida and Academic Criticism of His Juristic Thought 25

with differences of emphasis. The Hanafis and Malikis, closer to the position of
ahl al-ra‌ʾy, although accepting in principle the superiority of textual sources,
expanded the mechanism of analogy by incorporating within it tools that in-
volve considerations of human interest, i.e., (Hanafi) istiḥsān (usually trans-
lated as “legal preference”)3 and (Maliki) istiṣlāḥ.4 The Shafiʿis and Hanbalis,
closer to the position of ahl al-hadith, restricted the mechanism of analogy and
seldom used it.
Maṣlaḥa has played a role in the operation of analogy. Analogy takes place
when two cases are “brought together” due to a common meaning (ratio legis;
in Arabic: ʿilla). In some cases, a divine text specifies the ratio legis.5 If the text
does not specify the ratio legis, the jurist must infer it. The most important
method of inference is “suitability” (munāsaba). The ultimate goal of suitabil-
ity is the protection of maṣlaḥa in accordance with the fundamental principles
of the law,6 and therefore suitability may be relevant (mulāʾim) or irrelevant
for the law. An example of relevant suitability is the waiving of the Qurʾanic
obligation to pray under circumstances of hardship. The ratio legis of hardship
is deemed relevant to the spirit and positive commands of the law, since a great
number of obligatory actions cease to be obligatory under extreme circum-
stances, such as illness and travel.7
It is because of this relationship between the ratio legis and suitability that
maṣlaḥa (and istiṣlāḥ, the act of reasoning based on maṣlaḥa) is treated as an
extension of analogy. One issue that arises in istiṣlāḥ relates to cases whose
rules are derived based on a rationally suitable benefit for which there is no
textual support (such a benefit is called maṣlaḥa mursala). Many jurists ap-
proved this method of reasoning if it could be shown that the feature of public
interest adopted in a case was suitable (munāsib) and relevant (muʿtabar) either
to a universal principle of the law or to a specific and particular piece of textual

3 In its mature form, accepted by theorists from all law-schools, istiḥsān is a ‘preferred’ form of
legal argument based in qiyās, an argument in which a special piece of textual evidence, con-
sensus or necessity (ḍarūra), gives rise to a conclusion different from that which would have
been reached by qiyās. An example in which a “preferred” rule outweighs, on the grounds of
necessity, a rule arrived at by qiyās, is the matter of ritually impure wells. See Hallaq, Theories,
108–10.
4 On the origins of these two concepts, see Opwis, Maslaha, 9–13.
5 Hallaq, Theories, 20. For example, the Qurʾan explains (4:43) that the reason for the prohibi-
tion of wine drinking is prevention of intoxication.
6 Hallaq (Authority, 119) explains that searching for the law school’s authoritative principles
and then attempting to apply them to concrete cases was one of the main features of taqlīd.
7 An example for an irrelevant suitability is the case of male guardianship over a divorced
woman who is a minor. See Hallaq, Theories, 88–9.

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26 Chapter 1

evidence. Thus, suitability and relevance are necessary conditions for a valid
conclusion of maṣlaḥa mursala.8 Therefore, subsequent to the crystallization
of the law-schools, jurists used maṣlaḥa as a means for applying the revealed
law to the entire human experience and in particular to legal fields not covered
by the textual sources.9
The incorporation of maṣlaḥa into the mechanism of analogy (e.g., by using
istiḥsān) enabled Muslim jurists to adapt the law to changing circumstances
by extending its rules to topics not covered by the revealed texts. It did not,
however, facilitate the “improvement” of the existing rules in specific situa-
tions. Starting from the 11th century, Muslim theorists searched for ways by
which to provide maṣlaḥa with a more independent role in the process of law
finding. Using the terminology of Weber, Opwis divides these jurists into those
who espouse formal rationality and those who espouse substantial rationality.
Formal rationality means that the jurist, in the process of reaching a decision,
follows a formal method (as in analogy). This kind of rationality seeks to mini-
mize arbitrariness in the process of law finding and to achieve high levels of
method, probability, stability and predictability. In contrast, substantial ratio-
nality means that jurists solve legal problems based on considerations of social
values. In the Islamic legal context, substantial rationality means that the jurist
uses maṣlaḥa as an independent legal norm or connects it to the intentions of
Allah’s law (maqāṣid al-sharīʿa, see below). Thus, formal rationality limits the
ability of a jurist to adapt the law to changing social circumstances, whereas
substantial rationality based on maṣlaḥa serves in extreme cases as a tool to
reject rules based on textual indicators.10
In the Islamic legal discourse between the 10th and the 14th centuries,
Opwis discerns four models of incorporating maṣlaḥa in the law-finding pro-
cess, arranged across the spectrum between formal rationality and substantial
rationality. For the purpose of this study, it suffices to discuss three theorists
(the Shafiʿi Abu Hamid al-Ghazali, the Hanbali al-Tufi and the Maliki al-Shat-
ibi) whose thought is particularly important in the modern context. The first
model, the one closest to formal rationality, is represented by al-Ghazali. Al-
Ghazali, by defining maṣlaḥa for the first time in a tangible, concrete and clear
way, set the characteristics of later interpretations of this concept. Al-Ghazali’s
basic claim is that the attainment of maṣlaḥa was Allah’s purpose in reveal-
ing His law. More precisely, Allah’s intentions or purposes (hence maqāṣid al-
sharīʿa) are to preserve five benefits that al-Ghazali induced from the text of

8 Hallaq, Theories, 112.

9 Opwis, Maslaha, 5.
10 Opwis, Maslaha, 62–4.

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Rashid Rida and Academic Criticism of His Juristic Thought 27

the Qurʾan and that are essential for human existence (al-ḍarūriyyāt al-kham-
sa), i.e., religion (dīn), life (nafs), intellect (ʿaql), progeny (nasab) and property
(māl).11 According to al-Ghazali, anything that safeguards these five necessities
constitutes maṣlaḥa, while anything that fails to prevent harm to these neces-
sities constitutes a cause of corruption and evil (mafsada).12
Al-Ghazali offers a hierarchal classification of maqāṣid al-sharīʿa. The first
level includes the above-mentioned five indispensable benefits. The second
level, consisting of the “needed” benefits (ḥājiyyāt), seeks to maintain an or-
derly society properly governed by the law.13 The third, and least important,
level is the “improvement” benefits (taḥsīniyyāt), which enhances the imple-
mentation of the intentions of the law.14
What makes al-Ghazali a formal rationalist is the fact that he poses strict
conditions for reasoning in accordance with textually unregulated benefits
(maṣāliḥ mursala). To reject a rule based on textual indicators, first, the textu-
ally unregulated maṣlaḥa must belong to one of the five necessities;15 second,
it must be certain (qaṭʿī); and third, it must be universal (kullī). The condition
of universality ensures that the law serves the interests of the Muslim commu-
nity at large, and not only those of individuals.16
While earlier theorists determined matters not addressed in the texts by
identifying benefits and harms through an unregulated use of their intel-
lect, al-Ghazali incorporated such benefits into the realm of the divine law by

11 The Qurʾan’s order to fight the infidels proves the necessity of protecting the Islamic re-
ligion. The principle of preservation of life emerges from the Qurʾanic punishment for
murder. The prohibition of alcohol to prevent intoxication establishes the principle of the
preservation of the intellect. The ḥadd (Qurʾanically mandated) punishment for adultery
establishes the principle of protecting progeny. Finally, the principle of protecting private
property is derived from the ḥadd penalty for theft. See Opwis, Maslaha, 68.
12 Opwis, Maslaha, 5.
13 E.g., ensuring the orderly and just functioning of society requires the appointing of a mar-
riage guardian for a female of minor age, which reflects concern for protecting the inter-
ests of minors; see nt. 7 above.
14 For example, Islamic law precludes a slave from acting as a witness in a court of law, be-
cause his servile status impedes his independent testimony. See Hallaq, Theories, 89–90.
15 Textually unregulated benefits at the rank of “needs” and “improvements” are not in
themselves valid rationes legis but must be supported by authoritative textual evidence—
and, thus, fall within the ordinary procedure of analogy; see Opwis, Maslaha, 72.
16 The classical illustration of this condition is the permission granted to a Muslim army to
attack Muslim captives who an army of unbelievers use as a human shield. The interest
of protecting the life of the Muslim community at large, which is certain and universal,
prevails over the more particular interest of protecting the lives of the captured Muslims.
See Hallaq, Theories, 112–13.

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basing them on maqāṣid al-sharīʿa.17 Formally speaking, however, al-Ghazali

did not consider maṣlaḥa to be an independent legal source. He emphasized
that maṣlaḥa did not constitute a fifth source of law and that whoever thought
so was wrong. Throughout his analysis, al-Ghazali connected maṣlaḥa to the
preservation of maqāṣid al-sharīʿa, as indicated by the authoritative sources
of this law.18
Unlike al-Ghazali, who was a formalist, al-Tufi is regarded as the extreme
representative of substantial rationality.19 His method is simplistic. Based on
his commentary on the solitary Prophetic report “Do not inflict injury or repay
one injury with another” (lā ḍarar wa-lā ḍirār), al-Tufi held that, in the realm of
human transactions, except for fixed ordinances, such as the Qurʾanic penal-
ties (ḥudūd), maṣlaḥa is the supreme source of law. Thus, maṣlaḥa is superior
to uṣūl al-fiqh.20 To become legitimate, a maṣlaḥa need not be a necessary one,
as required by al-Ghazali.21 How can one uphold a theory in which maṣlaḥa is
superior to the Qurʾan, the sunna and consensus, if this theory is only support-
ed by a probable Prophetic report? Al-Tufi responds that this solitary report is
corroborated by other textual indicators that render it strong; moreover, all the
indicants in the Qurʾan, the sunna and consensus attest to the truth and valid-
ity of the principle embodied in this report.
In al-Tufi’s theory, if there appears to be a contradiction between maṣlaḥa,
on the one hand, and the Qurʾan, the sunna and consensus, on the other, the
dictates of maṣlaḥa may supersede the other sources not by setting the textu-
al orders and consensus aside altogether but only through particularization
(takhṣīṣ) [my emphasis].22 For example, al-Tufi explains that Allah specified
the general prohibition to eat carrion (Q. 5:3) by the legal license (rukhṣa) that
permits eating it in a case of necessity.23

17 Opwis, Maslaha, 88.

18 Opwis, Maslaha, 77–8.
19 For a thorough analysis of Tufi’s legal theory, see Opwis, Maslaha, 200–46.
20 Opwis, Maslaha, 241.
21 Opwis, Maslaha, 242.
22 “Particularization” means the exclusion from a general statement in the Qurʾan or the
sunna of a part that was subsumed under that statement. A general word in the Qurʾan
or in the sunna may be particularized only by means of relevant words or statements in
these texts. By “relevant” is meant words or statements that apply to the same genus de-
noted by the general word; see Hallaq, Theories, 45–6.
23 Opwis, Maslaha, 236–8. Shihab al-Din al-Qarafi (d. 1285) held that license to transgress a
divine ruling is granted when following that ruling would entail more harm than benefit.
For example, if a Muslim is suffocating and wine is the only available beverage in his im-
mediate vicinity, he may drink it to save his life; see Opwis, ibid., 146.

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Rashid Rida and Academic Criticism of His Juristic Thought 29

To establish his argument about the supremacy of maṣlaḥa as a source

of law, al-Tufi first states that consensus is stronger than the Qurʾan and the
sunna, because nothing can abrogate it, unlike the Qurʾan and the sunna.24
Then he claims that maṣlaḥa is stronger than consensus, because the jurists
have debated the authority of consensus, rendering it a questionable source
of law. Put differently, maṣlaḥa is the focus of unanimous agreement, whereas
consensus and its authoritativeness are subject to disagreement. A second
claim by al-Tufi is that textual evidence contained in the Qurʾan, the sunna and
consensus may at times be contradictory, leading to disagreements among the
jurists. Maṣlaḥa, however, is subject to no disagreement and is thus conducive
to unity among Muslims, a unity that God has enjoined in a number of verses.
Finally, history has shown that a large number of influential personalities in
Islam, from the companions onwards, abandoned the evidence of the texts in
favor of decisions and opinions arrived at on the basis of maṣlaḥa.
Hallaq remarks that al-Tufi nowhere defines his concept of maṣlaḥa and
its scope in any detail and that, epistemologically, his theory was inferior to
the average theoretical discourse of his predecessors, contemporaries and suc-
cessors. He remarks that this may be one reason for the oblivion into which
al-Tufi’s work sank for centuries, until modern jurists rediscovered it in the
20th century, when maṣlaḥa became a main axis around which legal reform
revolved.25 Opwis shares Hallaq’s evaluation. She writes that both al-Tufi’s con-
temporaries and modern theorists have not welcomed his theory because of
the lack of formal criteria to determine which maṣlaḥa is the one safeguarded
by the law. Missing from al-Tufi’s concept of maṣlaḥa are measurements to
weigh it in concrete terms; without them, maṣlaḥa’s preponderance in a given
case is subjective and arbitrary. This lack of regulating criteria gives his con-
cept an air of utilitarianism.26 Opwis acknowledges, however, that al-Tufi ob-
jected to maṣlaḥa overcoming a specific directive given by one of the textual
sources or by consensus.27
On the spectrum between al-Ghazali’s formal rationality and al-Tufi’s sub-
stantive rationality, al-Shatibi is located in the middle. While al-Tufi’s maṣlaḥa
theories have not been appreciated highly, being too simple and mechanical,
Opwis states that

24 Opwis, Maslaha, 77–8.

25 Hallaq, Theories, 150–53.
26 Opwis, Maslaha, 245. Elsewhere (“Maslaha,” 221) she writes that, “[t]he drawback of al-
Ṭūfī’s model is its lack of accountability and its propensity to change the revealed law
permanently and to render its divine origin irrelevant.”
27 Opwis, “Maslaha,” 195.

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[a]l-Shāṭibī … articulates what can be seen as the culmination of the in-

terpretation of maṣlaḥa in the pre-modern period. By focusing on the
purposes of the Sharīʿa, he takes the concept of maṣlaḥa to new heights
and recasts the existing interpretations into a comprehensive and coher-
ent theory.28

A detailed review of al-Shatibi’s theoretical thinking in general and of his treat-

ment of maṣlaḥa in particular is beyond the scope of this study.29 Since his
work on maṣlaḥa draws on that of his predecessors, mainly al-Ghazali and
al-Tufi, I limit myself to presenting what seems to be his main novel contri-
butions. In al-Shatibi’s system, “[t]o arrive at the correct ruling for a concrete
case, jurists have to analyze the specific circumstances, how they relate to [1]
the universal and particular sources of the law, [2] the Lawgiver’s primary
and secondary intentions, and [3] whether the outcome of the act corre-
sponds to its intention.”30
Let us expand on each one of the three underlined ingredients. The univer-
sal sources of the law are the three types of benefits posited by al-Ghazali, i.e.,
ḍarūriyyāt, ḥajiyyāt and taḥsīniyyāt. Unlike al-Ghazali, al-Shatibi postulates a
general rule that any universal source may be the basis of a ruling without
requiring concrete textual evidence, because a universal source is certain. The
particular sources of the law are the particular rulings in the textual sources
that are subsumable under the universal sources, as well as unprecedented
rulings, based on the universal sources. Unlike the universal sources, the par-
ticular sources are probable.31 Shatibi applies his understanding that the law
includes universals and particulars to the different parts of the Qurʾan. He ar-
gues that the Meccan suras lay down the universal sources that the law intends
to preserve, namely the five ḍarūriyyāt, whereas the Medinian suras constitute
particulars, or particular legal indicants, that are subsumable under the more
general universal sources or are complementary to them.32

28 Opwis, Maslaha, 247. Regarding the historical context of Shatibi’s substantial rationalist
view of maṣlaḥa, see Opwis, Maslaha, 247–8, citing Masud, Islamic Legal Philosophy, 80.
According to Hallaq (Theories, 162–3), al-Shatibi’s legal theory is not only a “distinct reac-
tion to a particular worldly and social reality,” but the result of the high level of sophis-
tication reached in legal theory, including the interpretation of maslaḥa, which enabled
al-Shatibi to remold it in response to these changes.
29 For a detailed analysis of al-Shatibi’s theoretical thinking, see further Hallaq, Theories,
162–206; Opwis, Maslaha, 247–333. Earlier than Hallaq and Opwis, Masud dedicated a
monograph to al-Shatibi (Legal philosophy).
30 Opwis, Maslaha, 330.
31 Opwis, Maslaha, 253–4.
32 Opwis, Maslaha, 294.

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Rashid Rida and Academic Criticism of His Juristic Thought 31

As for the second element that jurists must consider in order to arrive at
the correct ruling for a concrete case, namely the primary intentions of the
law, they are those that are devoid of specific interests and inclinations of in-
dividuals. These intentions serve to preserve the five necessities of humankind
or they target matters necessary for the community as a whole, which makes
them complementary to the necessary intentions aimed at each individual.
The secondary intentions of the law target the personal interests and incli-
nations of the individual believer and they are therefore complementary and
subservient to the primary intentions.33 An illustration of the application of
the distinction between the law’s primary and secondary intentions comes
from the field of marriage. Marriage is intended primarily for procreation,
from which secondary intentions, or individual rights, follow, like the spouses’
co-habitation and mutual support in the enjoyment of the permitted benefits.
In the case of marriage to a triply-divorced woman, followed by an immediate
divorce, aimed by the “husband” solely to enable the former husband to re-
marry her (customarily known as taḥlīl marriage), the “husband” intends nei-
ther procreation nor any of the other secondary intentions that accompany
marriage. The act is contrary to what Allah intended and, consequently, legally
void.34
As for the third element in al-Shatibi’s prescription, the outcome of the ac-
tion, he observes that this outcome, which determines the legality of this ac-
tion, is not solely the result of the Lawgiver’s intention, but is also the result of
the intention of the actor and of the act’s impact on other people. Al-Shatibi
provides a typology of eight categories of human acts according to the effect
they have on others.35 When all three elements of al-Shatibi’s typology—the
Lawgiver’s intention, the intention of the actor and the act’s impact on other
people—entail maṣlaḥa, then the jurist must permit the act. However, when
the act is outwardly legal but the maṣlaḥa involved is contrary to the purpose
of the law, the jurist must render the act illegal.36
What are the implications of al-Shatibi’s system for the prospects of legal
change? He puts some restrictions on legal change by distinguishing between
two areas of the law: cases that the revealed law addresses explicitly or implic-
itly and other cases about which the texts are silent. The rulings for the former

33 Opwis, Maslaha, 270. Al-Shatibi lists four ways by which to know Allah’s intention. See
ibid., 280–6.
34 On taḥlīl marriage, see Shaham, Family, 101, 139, 144.
35 The first category refers to acts that attain maṣlaḥa or avert mafsada without harming a
third party, and consequently are legally permissible. The remaining seven categories deal
with acts that bring harm upon someone other than the actor.
36 Opwis, Maslaha, 287–92.

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are generally valid, binding and unchangeable, unless specific circumstances

require reforming them. This immutable part of the shariʿa includes those
cases and circumstances that are likely to have existed during the time of the
Prophet and those rulings that the early Islamic community acted upon, be-
cause such precedents are binding. Rulings from this category can be adapted
in specific cases only if they fail to achieve their intended maṣlaḥa; then they
may be set aside out of consideration that a different ruling will achieve the
intention of the Lawgiver.37
According to al-Shatibi, the jurist usually attains the flexibility he needs for
adapting the law on a case-by-case basis. He justifies it methodologically as
a “legal license” or a “particularization” (see above). Al-Shatibi employs the
concept of legal license, which he understands as particularization and as al-
leviation of need, in three different manners, all of which rationalize apparent
inconsistencies between the universals and particulars of the law.38
Rulings decided upon after the period of the Prophet and the companions
are open to new assessment if changed circumstances or social needs call for
a reconsideration and if there is no countervailing evidence for this measure
from a universal source. Social change brought about by differences in place,
time and circumstance necessitates new rulings based on considerations of
maṣlaḥa and requires jurists to adjust existing rulings accordingly when they
no longer fulfill their purpose of attaining maṣlaḥa. The same is true when the
textual sources are silent.39
Opwis concludes that,

[a]l-Shāṭibī’s theory of law opens up new ground for the concept of

maṣlaḥa … Al-Shāṭibī successfully maintains his simple two-level ap-
proach of universal and particular sources of the law throughout all
the aspects of law and the law-finding processes that he discusses …

37 Opwis, Maslaha, 327–8.

38 One function of legal license is to explain the validity of definite rulings in the authorita-
tive texts that do not correspond to the universal source of preserving maslaḥa for hu-
mankind, e.g., the ḥudūd punishments. For example, amputating the thief entails harm
for him as an individual, but it serves one of the five ḍarūriyyāt, i.e., the property rights of
the entire Muslim community. Another function of legal license is to sanction the permis-
sibility of customary practices (such as loans, sharecropping and exchanging unripe dates
for ripe ones), because these permissions specify the universal and general law that pro-
hibits risky business transactions; such specification is needed to preserve public welfare.
The third function of legal license is to avert harm and hardship to a specific individual,
e.g., a Muslim who is ill may receive license to remain seated during prayer.
39 Opwis, Maslaha, 328.

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Rashid Rida and Academic Criticism of His Juristic Thought 33

In al-Shāṭibī’s legal theory, interpreting and integrating the concept of

maṣlaḥa along a substantive legal rationality is brought to perfection.40

In spite of its comprehensiveness, successive generations of jurists did not

widely adopt al-Shatibi’s theory of maṣlaḥa and maqāṣid al-sharīʿa, which has
received renewed attention only in the contemporary period. The neglect of
al-Shatibi’s ideas by generations of jurisprudents may partly be attributable
to historical circumstances (the decline of Islam in general and of the Maliki
school in particular in al-Andalus) and partly to the content of his ideas, which
made him a controversial figure. Hallaq argues that al-Shatibi’s strong empha-
sis on the Qurʾan (and even further, on the early Meccan revelations), at the
expense of the hadith, was unacceptable to most jurists. Opwis adds another
factor that may have led scholars to neglect al-Shatibi’s theory of law: his in-
ability to clarify the relationship between universal and particular, between
general and specific, and between certain and probable, as well as their pre-
ponderance in the law-finding process in cases of conflict.41
In the period between the 11th and the 14th centuries, the tendency of sub-
stantial rationality was growing. Before closing this section, let us remind
ourselves that the crucial question in a theory of religious law is the interplay
and the possible conflicts between divine textual orders and considerations
of social necessity and public welfare. A successful legal theory should sup-
ply definite criteria for dealing with such conflicts. We have noticed that one
remedy provided by the theorists is the exclusion of maṣlaḥa considerations
from the realm of the rules of worship (aḥkām al-dīn), which are immutable.
As for legal rules relating to human transactions, theorists (such as al-Tufi)
who wished to preserve textually certain rulings argued that, the more specific
the textual order is,42 the more certain it is and the less likely it is susceptible
to change. Another way to preserve the validity of textually certain rulings,
such as the Qurʾanic punishments that do not attain maṣlaḥa for the indi-
vidual believer (see above the explanation about the thief), is to justify such
rulings either as legal license or as specification. They are, thus, exceptions to
the general divine rule, applicable under specific circumstances and target
Allah’s intention on a larger level. One may conclude then that even the most
far-reaching substantial-­rationalist theory of maṣlaḥa, that of al-Tufi, is not ar-
bitrary. Although he held that ­safeguarding maṣlaḥa as a general imperative

40 Opwis, Maslaha, 330.

41 Opwis, Maslaha, 331–2, citing Hallaq, “Primacy of the Qurʾan,” 76–7, 89.
42 E.g., the fixed shares of inheritance, and the length of the waiting period of the divorcee
or of the widow.

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has priority over other legal indicants, he did not envision its dominance as
absolute.43 This point is relevant to our discussion below of the Western cri-
tique of the work of modern writers on maṣlaḥa.

Rida’s Juristic Method

In the introduction, I discussed the principles of Modernist thought and the

Orientalist critique of the intellectual merit of this project as a whole. In this
context, Western scholarship has dealt extensively with Rida’s life and his in-
tellectual and political heritage, i.e., his search for a way that would enable
Islamic societies to modernize while preserving their religious authenticity.44
Recent studies present Rida as an exemplar of the modern Muslim intellectual,
a sub-group among the Arab intellectuals of the late-19th-century Arab revival.
Unlike secular-oriented intellectuals, the Muslim intellectuals were still con-
nected to the world of the madrasa, but they wanted to reform it. They took to
the new media and set up a specifically Islamic press.45
At this point, I wish to focus on the legal aspect of Rida’s thought and the
critique of that thought by academic observers. As one of the most enthusi-
astic supporters of the renewal of ijtihād in his time,46 Rida attacked taqlīd

43 Opwis, Maslaha, 217–8, 347–8.

44 On Rida’s biography in its wider historical context, see now Zaman, Modern Islamic
Thought, 4–11.
45 Skovgaard-Petersen, “Portrait,” 94–6. The author demonstrates how Rida, through
his work—Muḥawarat al-Muslih wa-l-muqallid [The Debate of the Reformer and the
Traditionalist], serialized in his journal al-Manar in 1901—uses a fictional framework
to create a model of reformist intellectual with whom the readers of the new Muslim
press could identify. Rida’s reformer adores Abu Hamid al-Ghazali, Ibn Taymiyya, Ibn al-
Qayyim and the Egyptian reformer ʿAli Mubarak (d. 1893). See ibid., 102. Hamzah takes
the argument concerning the new press in relation to Rida to its extreme. She seems to
contradict herself by insisting, on the one hand, that Rida was a journalist and not a jurist
(“From ʿilm to sihafa,” 91, 95, 114), and by arguing, on the other hand, that a journalist has
no juristic authority and that Rida therefore needed his authority as a religious scholar to
legitimize his arguments (ibid., 108). The fact that Rida issued fatwas demonstrates that
he considered himself a certified jurist.
46 According to Zaman (Modern Islamic Thought, 106), Rida’s position on the scope of
the required ijtihād was a compromise between the Modernist perception of ijtihād as
all-­inclusive and the minimalist view of ijtihād, i.e., that the wide coverage of the re-
vealed sources leaves only a narrow legal spectrum open for ijtihād. The Indian thinker
Muhammad Iqbal (d. 1938) represented the first position while the Indian Deobandi ma-
drasa represented the second.

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Rashid Rida and Academic Criticism of His Juristic Thought 35

vehemently. He held that rigid adherence to the law-schools had divided the
community into opposing factions and caused the jurists to worship the epon-
ymous founders of the schools almost as gods (thereby harming pure Islamic
monotheism). Taqlīd had blocked the independent thinking of Muslims and
their direct access to the revealed sources, and, finally, it had enabled rulers,
supported by corrupt ʿulama‌ʾ, to maintain their despotism.47
The most comprehensive analysis of Rida’s legal theory appears in the
works of Malcolm Kerr. Kerr was the first to criticize Rida for the alleged logical
contradictions in his theory, for its naturalistic and utilitarian character48 and
finally, for its failure to bridge the gap between the conservative worldview of
the ʿulama‌ʾ and the secularist tendencies that flourished in Rida’s generation.
Aharon Layish and Hallaq continued this line of criticism. Because Hallaq’s
analysis of Rida’s theory is the most recent, and due to his authoritative posi-
tion in Western scholarship on Islamic law, I use his texts on Rida as the basis
for my discussion. I therefore divide the remainder of the chapter into two
parts. In the first, I portray Rida’s theory. In the second, I study Hallaq’s criti-
cism of Rida’s theory and suggest an alternative viewpoint that situates Rida’s
enterprise as a continuation of pre-modern juristic theoretical discourse.
According to Hallaq, ʿAbduh’s new theology provided his student, Rida, with
the necessary tools to appropriate from traditional legal theory certain con-
cepts for rationalizing the materialist exigencies of modernity. The cornerstone
of his thesis, and the theses of many after him, rests on the notion of maṣlaḥa,
an important but controversial concept among pre-modern legal theoreti-
cians. Whereas in traditional theoretical discourse maṣlaḥa was connected

47 Zaman, Modern Islamic Thought, 77, 81. Zaman (ibid., 83) holds that, for Rida, the topic of
ijtihād and taqlīd was a useful way to promote his life-long commitment to reforming the
school-bound position prevalent among the majority of al-Azhar’s ʿulama‌ʾ.
48 See also Lombardi (State Law, 83–91), who defines Rida as the founder of “utilitarian neo-
ijtihād,” following Kerr and Hallaq’s analysis. Hamzah too argues that the only rationale
for Rida’s enlisting of Shawkani, the Salafis and analogy to support his ideas was utili-
tarianism, that he coerced tradition into saying what was needed (“From ʿilm to sihafa,”
93–4), and that his discussion of al-Tufi and al-Shatibi “constitute nothing but editorial
strategies of affiliation (ibid., 111). Johnston (“Epistemology,” 262–6) argues that Rida wa-
vers between regarding the attainment of maslaḥa as the main purpose of Islamic law
and viewing it only as an extension of analogy. Abou El Fadl (Speaking, 17, 172) agrees with
Kerr and Hallaq that, generally, the intellectual product of the Modernists was superficial.
He however indicates that Rida, in addition to a very few other scholars, such as Shaltut
and Muhammad al-Ghazali, are exceptional, because they made original and creative
use of the traditional methodologies of classical Islamic law and were not apologetic,
Westernized or demagogic.

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and interwoven with legal causation (taʿlīl)—i.e., part of the mechanism of

analogy—Rida needed to extract maṣlaḥa from its larger theoretical context,
thereby making it stand on its own feet.49 We recall that at the beginning of
the 20th century, it was Rida and his Syrian colleague al-Qasimi who revived
al-Tufi’s concept of maṣlaḥa by editing his text and publishing it in the journal
al-Manar, edited by Rida.50
Rida’s first step was to argue that the decline of Islam started and Islamic
unity lost when the ʿulama‌ʾ abandoned the pure form of Islam, based on the
Qurʾan, the sunna and the consensus of the companions, causing the Muslim
community to split into schools and sects.51 The pre-modern jurists created
a highly technical law that was difficult to comprehend and even more diffi-
cult to implement. These difficulties, Rida argued, brought about by the jurists’
over-use of reason, led in the 19th century to the importation of Western codes
into Muslim countries, signifying the jural colonization of the Muslim world.
Another aspect of the problem was that the jurists wished to find answers to
every real and imaginary problem, with the result that Islamic jurisprudence
became rigid and intolerant. This ambition of the jurists contradicted the
Qurʾan’s call to Muslims not to inquire into any issue that the Prophet had not
touched.
Arguing that Islam is a religion of ease and leniency, Rida posits a number
of premises. First, the Qurʾan is the foundation of Islam, but it includes only
general principles that relate to the social and economic transactions of every-
day life (muʿāmalāt). Two, the Prophetic instructions pertaining to muʿāmalāt
are not impeccable, because the Prophet admitted a number of mistakes he
had made in this realm52 This deficiency of the two textual sources must lead
to the conclusion that the details of muʿāmalāt are within the boundaries of

49 Hallaq, Shariʿa, 504.

50 Opwis, Maslaha, 200 n. 88. Opwis (“Maslaha,” 197–201) claims that Rida and Qasimi
viewed maslaḥa, as interpreted by al-Tufi’s substantial-rationalist model, as a juristic plat-
form justifying their endeavor to purify Islam, revive Muslim societies and unite them.
This endeavor was supposed to restore the ʿulama‌ʾ to their position of communal leader-
ship. Opwis follows Hallaq’s line of argument. She claims that Rida chose al-Tufi’s model
from among alternative pre-modern models of maslaḥa, because this model in particular,
by viewing maslaḥa as an independent juristic source, and by freeing it from the require-
ment to be integrated in formal juristic categories and procedures, allowed the modern
reformer a great measure of flexibility.
51 Hallaq, Shariʿa, 504.
52 On Rida’s strong opposition to the reliance on weak Prophetic reports and his wish
to cleanse the canonical corpus of hadith from such reports, see Brown, “Unreliable
Hadiths,” 34–5.

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Rashid Rida and Academic Criticism of His Juristic Thought 37

man’s discretion and that the jurists must rule on them according to reason.
Third, because Islam is a religion of leniency, the legal assumption in the field
of muʿāmalāt is that Islamic law permits everything.53 The last consensus that
may serve as a root of law is that of the companions,54 because after their gen-
eration the misuse of analogy brought about division among the community.
In setting forth these premises, Rida appears to prepare the ground to steer
a middle course between the ʿulama‌ʾ, who advocate the preservation of the tra-
ditional law, and the secularists, who overuse free thought and rationality and
wish to abolish Islamic law and replace it with state law.55 Hallaq quotes Rida
as associating himself with “moderates who affirm the possibility of reviving
Islam and of renewing its true identity by following the book, the sound sunna,
and the guidance of the Salaf.”56 However, Hallaq does not cite the ending of
Rida’s saying: “and by seeking the help of the teachings of the Imams of all
law-schools, without cleaving to particular sectarian books of law and theology
around which the first group [the conservative ʿulama‌ʾ] has solidified.”57 This
ending is important because it indicates that Rida did not ignore the rich heri-
tage of Islamic law, as did a number of his strict Salafi contemporaries. Instead,
following Ibn Taymiyya and especially his student Ibn al-Qayyim, he viewed
the literature of the four Sunni law-schools (without committing himself to the
teachings of one school in particular) as a resource from which to draw guid-
ance and inspiration for adapting the law to changing circumstances.58
According to Hallaq, Rida did not deny the status of analogy as a legal
source, yet he viewed it as a problematic and restrictive source of law and

53 Hallaq, Shariʿa, 505.

54 Hallaq (Theories, 219) argues that by limiting the consensus to that of the companions,
Rida ignored practices that jurists legitimized over the course of Islamic history based on
the classical legal theory.
55 According to Soage (“Rida’s legacy,” 5–6), due to the intensified secularization process
that took place in Egypt during the first decades of the 20th century, Rida transformed the
focus of his attacks from official ʿulama‌ʾ to “Westernized” intellectuals.
56 Hallaq, Shariʿa, 506.
57 In Arabic: wa-l-istiʿāna bi-ʿulūm a‌ʾimat al-madhāhib kullihā bi-dūn iltizām shayʾ muʿayyan
min kutub al-fiqh wa-l-kalām al-madhhabiyya alladhī jamuda ʿalayhā al-farīq al-awwal.
See Kerr, Reform, 191, translating Rida, Yusr, V.
58 Rida placed the four eponyms of the law-schools at the apex of the juristic pyramid, yet
he claimed that Ibn Taymiyya was in practice more relevant for the modern period, due
to the passage of time and the accumulation of knowledge between their times and his;
see Skovgaard-Petersen, “Defining,” 73–4. For more on Rida’s attraction to Ibn al-Qayyim’s
juristic thought, see ibid., 75–7.

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therefore curtailed its use,59 compensating for this by relying on his own en-
larged concept of maṣlaḥa. This compensation allowed Rida “to jettison the
centuries-old and highly principled methodology of doing law.” Aware of the
need to garner legitimacy for his theory, he attempted to place himself within
the mainstream doctrine pertaining to maṣlaḥa in legal theory. He argued that
it is a common misconception that the majority of traditional theorists ques-
tioned the validity of maṣlaḥa as a legal source; in fact, he affirmed, they re-
garded maṣlaḥa as a method integral to the processes of determining the ratio
legis in the framework of analogy, by means of “suitability” and “relevance.”
This reasoning, Rida claimed, acceptable to al-Ghazali and al-Shatibi, among
others, in the framework of their theory of maqāṣid al-sharīʿa, perfectly ac-
corded with the type of maṣlaḥa that has been universally accepted by Muslim
jurists down the centuries.60
Rida makes a claim, acknowledged by Kerr to be historically reasonable,61
that the only reason that the ʿulama‌ʾ “concealed” their use of maṣlaḥa within
the mechanism of analogy, instead of declaring it as an independent source of
law, was

[T]heir fear … that tyrannical leaders would take it as an excuse for fol-
lowing their own desires and imposing their absolute power on the prop-
erty and persons of the population. The ʿulamāʾ therefore thought to
guard against this by tracing all laws back to revealed sources, even when
this necessitated recourse to [so-called] hidden analogies. They convert-
ed the notion of maṣāliḥ mursala into one of the most technical forms of
the ʿilla in qiyās, so that it was not subject to the interpretation of princes
and governors. This fear was justified at the time, but the community did
not thereby guard itself sufficiently against the desires of its rulers, for
every tyrant could always find corrupt ʿulamāʾ to prepare the way for him
to follow his own inclinations to some extent.62

59 Unlike Hallaq, Dallal (“Appropriating,” 346) argues that Rida sought a middle way be-
tween those jurists who denied analogy altogether “and those who apply it loosely by
inferring far-fetched causes (ʿilal) and that he wrongly ascribed this middle way to al-
Shawkani, arguably the last of the great traditional reformers, who actually permitted
only a minimal use of analogy.” In addition, Rida preferred analogy as a way to introduce
state legislation (ibid., 356).
60 Hallaq, Shariʿa, 506–7.
61 Kerr, Reform, 196, n. 21.
62 Kerr, Reform, 195, translating from Rida, Yusr, 75–6.

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Rashid Rida and Academic Criticism of His Juristic Thought 39

This concealment of the open use of maṣlaḥa as a legal source is redundant in

the modern era, Rida argues. Instead of denying the principle of maṣlaḥa or
restricting its use, the political structure should be reformed so that decisions
of public law and policy rest in the hands of qualified persons—“those who
loosen and bind,” ahl al-ḥall wa-l-ʿaqd, or “those in authority,” ulū al-amr—
acting in consultation with one another, with the ruler accountable to them.
Placing political authority in the hands of the ʿulama‌ʾ will ensure that they will
no longer consider themselves the sole guardians of the law against govern-
mental corruptions. Released from this burden, they will be able to simplify
their highly technical methodology.63
Rida linked his concept of consensus directly to his envisioned agency,
entrusted with the task of implementing the process of reinterpretation of
Islamic law. By this agency, he means a body, including the electors of the ca-
liph (the above-mentioned “those who loosen and bind”), the participants in
the process of consultation (shūra), “those in authority,” and the leading ju-
rists. This body, whose executive is the caliph, represents the sovereign powers
of the community; the body is both legislative and judicial, because its agree-
ment to institute particular ordinances has the force of consensus, in the sense
that it is an authoritative pronouncement of law valid for its particular time
and place. According to Kerr, this incorporation of consensus into a formal
institution would be a new departure unprecedented in Islamic history.64

63 Kerr, Reform, 195–6. ʿAbduh’s opinion, followed by Rida, that the Qurʾanic term (4:59)
“those in authority” refers to both political-military and religious elites, is a middle posi-
tion between those who argued that it referred solely to the political-military elite and
those who claimed that it was particular to the religious elite. It was ʿAbduh who identi-
fied the Qurʾanic term “those in authority” with the term “those who loosen and bind,”
used by classical jurists to denote those political and religious dignitaries who were au-
thorized to elect the caliph and to remove him from office. See Zaman, Islamic Modern
Thought, 49, and Ivanyi (“Who’s in charge?” 175–95), who argue that Rida placed the indi-
vidual duty of “ordering the good and prohibiting the evil” (Q. 3:104) in the hands of “those
in authority” and “those who loosen and bind.”
64 Kerr, Reform, 197–8. To ʿAbduh’s list of those included in the term “those who loosen and
bind”—the political and religious dignitaries—Rida added others, such as economic,
commercial and industrial entrepreneurs and leading journalists. This extension of the
group of “those who loosen and bind” beyond the circles of the ʿulama‌ʾ is interpreted by
Zaman as an attempt by Rida to deprive the certified ʿulama‌ʾ of their exclusive public au-
thority, by placing modern professional groups as sharers of this authority who partake in
determining public consensus and welfare. See Zaman, Islamic Thought, 50. On Rida’s call
for the shaping of a new “enlightened” elite, see Zaman, ibid., 150. On ʿAbduh’s and Rida’s
perceptions of modern consensus and the impact of their ideas on other thinkers, such as
the Indian Iqbal and the Egyptian Shaltut, see Zaman, “Consensus,” 156–62.

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40 Chapter 1

Hallaq’s Critique of Rida’s Juristic Method

In Western scholarship, there are two types of criticism directed at Modernist

legal theories in general and at Rida’s theory in particular. The first type is its
poor intellectual merit, i.e., its detachment from Islamic theological values,
its inner logical contradictions, and its ambivalence and apologetic character.
The second type of criticism relates to the negative impact that this theory has
had on the status of Islamic law in the modern state. In Kerr’s words, Islamic
Modernism is an “intellectual and political failure.”65 I focus on the first type of
criticism, which is relevant to Rida’s legal theory, a criticism that Hallaq sum-
marizes in one sharp paragraph:

Riḍā’s doctrine amounts to a total negation of traditional legal theory.

What is interesting about the way in which he achieves this task is that he
draws extensively on a highly limited and minor concept in that theory in
order to suppress the rest of it. The concepts of necessity and interest …
were traditionally of a limited use, and only a small minority of theoreti-
cians gave these concepts prominence in their writings. The ideas of this
minority, consisting mainly of Ṭūfī and Shāṭibī,66 became in Riḍā’s theory
the standing paradigm. Thus, aside from matters of worship and religious
ritual, which were to remain within the purview of revelation, Riḍā up-
held a legal theory strictly anchored in natural law,67 where consider-
ations of human need, interest and necessity would reign supreme in
elaborating a legal corpus. Any revealed text, however epistemologically

65 Kerr, Reform, 210.

66 Cf. Hallaq, Shariʿa, 508, where he says that “Riḍā appropriated their [al-Tufi’s and al-­
Shatibi’s—RS] discourses for his own needs—which is to say that he takes their theses
out of their historical contexts.”
67 Here Hallaq follows Kerr’s observation. See Hallaq, Theories, 218, citing Kerr, Islamic
Reform, 201–2. Zaman (Modern Islamic Thought, 113–14) follows Kerr in arguing that Rida
may have been uncomfortable with some of the implications of his own views, i.e., “with
seeing the divine and sacred dimension of the sharia dissipated by the emphasis on its
continuing responsiveness to human interests.” Apparently, Zaman (ibid., 118) shares
Kerr’s and Hallaq’s criticism of Rida. Referring to the fact that, oddly, Rida is not men-
tioned by Qaradawi in his discussion of maslaḥa, he writes that “it is tempting to think
that his [Rida’s] absence here reflects a degree of distaste [on Qaradawi’s part] for Rida’s
position on maṣlaḥa, whereby it had essentially become a non-too-subtle means of
circumventing the legal tradition itself” [my emphasis]. Eventually, in fact, Qaradawi
does mention Rida as one of his “teachers” on maqāṣid, see Qaradawi, Maqasid, 12; ʿAwda,
Maqasid, 27.

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Rashid Rida and Academic Criticism of His Juristic Thought 41

evincive it may be, could be set aside if it contravened such consider-

ations. It would seem that Riḍā was preparing the ground for the total
dissociation of religion from strictly non-religious, mundane matters. But
his was a theory that constituted a radical shift from the religious values
of the law, values that the Muslim world found difficult to abandon. It
found it difficult because the alternative that Rida provided lacked both
true religious foundation and a theoretical depth [my emphasis] that
could successfully compete with, and match, the impressive intellectual
achievements of traditional legal theory.68

The two main deficiencies of Rida’s legal theory, then, are its supposed lack
of true religious foundation and of theoretical depth. By the absence of a true
religious basis, Hallaq means the lack of a dialectical relationship between
the demands of the revealed texts and modern realities. Rida leaves us “with
an almost exclusive reliance on the concepts of necessity and maṣlaḥa, with-
out articulating a methodology in respect of how these principles should
work interpretively in light of (a) the demands of revelation [the Qurʾan and
­hadith—RS] and how such demands might be methodologically and methodi-
cally explained away.”69 This deficiency demonstrates that Rida “pays no more
than lip service to Islamic legal values.”70
Hallaq further argues that the features of Rida’s legal theory render it am-
bivalent; the ambivalence is a result of “the tenacious grip of traditional legal
theory and the attractiveness of what amounts to pseudo-religious ideas ex-
pressed in the concepts of necessity and interest.”71 Rida’s theory is also sub-
jective and relativist, to the extent of being arbitrary, because reliance on the
concepts of maṣlaḥa and necessity amounts to nothing short of subjectivism.
To speak of these concepts without a methodology that can control the prem-
ises, conclusions and lines of reasoning required by these concepts is a highly

68 Hallaq, Theories, 219–20; idem, Shariʿa, 508.

69 Hallaq, Shariʿa, 510.
70 Hallaq, Theories, 231. This accusation brings to mind Kedourie’s claim that ʿAbduh, be-
neath the mask of an Islamic reformer, was a “free thinker”; see Kedourie, Afghani and
Abduh, 20, and ibid., 12–13, 51.
71 Hallaq, Theories, 220. Before Hallaq, Kerr claimed that Rida’s ideas were ambiguous. He
argued that, on the one hand, Rida altered the character of Islamic legal mechanisms,
such as consensus, in the spirit of Western positivism and formalism. On the other hand,
as an Islamic apologist he was not willing to acknowledge that the legal rules derived from
such consensus lacked divine inspiration. See Kerr, Reform, 203–4. For another reference
to this “duality” of Rida, see ibid., 211.

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42 Chapter 1

relativist venture.72 Finally, Rida’s theory is arbitrary; to accept, on the one

hand, the revealed texts’ affirmation of welfare, interest and necessity, and, on
the other, to reject nearly all other rules and precepts, without proper theoreti-
cal justification, amounts to nothing less than sheer caprice.73
Before Hallaq, Kerr expressed the above-mentioned claim of the arbitrari-
ness of Rida’s theory in sarcastic words, i.e., that the Modernists are “engaged
in establishing the comprehensive relevance of the Qurʾān and Sunna, yet for-
ever seeking permission from the Qurʾān and Sunna (and, happily, obtaining
it) not to be bound too restrictively by the Qurʾān and Sunna.”74 What both
Kerr and Hallaq mean here is that, while Rida based the legitimacy of the idea
of maṣlaḥa on the Qurʾan, he ignored other clear-cut injunctions of the Qurʾan,
probably those related to the shares of inheritance, polygyny and interest
(ribā). Kerr and Hallaq however do not substantiate their claim with a refer-
ence to any legal opinion in which Rida contravened a Qurʾanic injunction.75
Notice that Hallaq bases his main claim, i.e., that Rida regarded maṣlaḥa
as superior to the revealed texts, on only one paragraph from Rida’s work Yusr

72 Hallaq, Theories, 231. Hallaq follows here the argument of Fazlur Rahman. See Hallaq,
Shariʿa, 527, where he quotes Rahman’s “Reformulating,” 223.
73 Hallaq, Theories, 224. One wonders how many “certain” texts there were in classical
Islamic law. If the number is small, as argued by many modern theoreticians (including
Qaradawi, see below), then the chances of a contradiction between such texts and con-
siderations of necessity or maṣlaḥa are also small, and the problem is negligible. From
another angle, for such disqualification of Rida to be sufficiently authoritative, one would
not only have to consult his one work on legal theory, but also to study his fatwas, to see
how he treated such contradictions.
74 Kerr, Reform, 211. Whereas Hallaq uses biting words, Kerr was more cautious. Like Hallaq,
he interpreted Rida’s idea as meaning that, if maslaha is taken as an independent legal
source, analogy may often be dispensed with, and positive rules may be decided directly
upon utilitarian grounds. Unlike Hallaq, Kerr admitted that “these [conclusions] are only
implications, and they are not spelled out by Rida himself [my emphasis] … when such
conclusions were explicitly drawn by others from premises similar to his own, he was
often moved to object strenuously.” See Kerr, Reform, 197.
75 See Ch. 4, in which I mention that Rida retreated from his early support of ʿAbduh’s claim
that polygyny must be restricted, if not abolished altogether. Rida’s final opinion was that
the Qurʾanic permission for polygyny was permanent. As for ribā, Rida, like his mentor
ʿAbduh, asserted that Muslims may not lawfully enter into money-lending contracts that
pay a fixed interest rate, but they may open savings accounts that pay out a fixed percent-
age of any investment profits to which their money gives rise. See Lombardi, State Law,
165–6, n. 20; Mallat, “Tantawi on Banking Operations,” 286–7.

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Rashid Rida and Academic Criticism of His Juristic Thought 43

al-Islam.76 Rida claimed there77 that modern jurists must base their ijtihād
in the field of human transactions on five types of evidence, in descending
order of priority. The first and most weighty type is what concerns us here. In
Hallaq’s words,78 this type is

[T]he revealed language that enjoys certainty in signification and trans-

mission [qatʿī al- riwāya wa-l-dalāla—RS]79 and which therefore yields
rulings and legal values that are likewise certain. No other evidence
may override such language unless it is a more weighty revealed text
[The Arabic text of Rida corresponding to the underlined text reads as
follows: mā lam yuʿāriḍuhu mā huwa arjaḥ minhu min al-nuṣūṣ al-khāṣṣa
bi-mawḍūʿihi—RS].

Up to this point, Hallaq is faithful to Rida’s original text. Now he starts para-
phrasing Rida:

Curiously, Riḍā also argues that such clear and soundly transmitted lan-
guage may be superseded by a principle derived from a general survey
of the Sharīʿa, which Shāṭibī had called “inductive corroboration.”80 One
such principle is that of necessity (ḍarūra) … by elevating the concept
of necessity to an inductively drawn principle, the Quran and the Sunna
would be subordinated to the maṣlaḥa principles inferred from maqāṣid
al-sharīʿa.

This is not exactly what Rida said. Rather, after stating that a clear and sound-
ly transmitted text may be superseded only by a specific text that is more

76 This work is a collection of pieces published earlier by Rida in his journal al-Manar.
77 Rida, Yusr, 76–9.
78 Hallaq, Shariʿa, 507–8.
79 Already the classical theorists ranked textual indicators that were certain in terms of their
authenticity and meaning as the supreme type of legal evidence, although they viewed
some less-than-certain types of textual injunctions (e.g., injunctions based on solitary
Prophetic reports) as obligatory as well. See Lombardi, State Law, 25, citing from Zysow,
Economy of Certainty, 90–1. Indeed, by viewing legal rules not based on certain textual
indicators or the companions’ consensus as non-binding, Rida considerably reduced the
number of binding legal rules.
80 Al-Shatibi’s system requires the jurists to construct general principles and universal
truths (kulliyyāt) based on accumulation of probable instances or partial statements in
either the Qurʾan or the hadith that strengthen each other to the degree of certainty; see
Hallaq, “Inductive corroboration,” 27, 30.

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44 Chapter 1

preponderant concerning the matter at hand (see above), he adds that such a
clear and soundly transmitted text may also be superseded

[b]y a general text (aw [al- nuṣūṣ] al-ʿāmma).81 These general texts re-
late to the rejection of distress (ka-nafī al-ḥaraj), the rejection of causing
damage and counter-damage (nafī al-ḍarar wa-l-ḍirār), and the permis-
sion of prohibited actions in a situation of duress, following Allah’s say-
ing: ‘except what was necessary for you.’82

In other words, Rida does not speak about principles derived from a general
survey of the shariʿa that supersede clear-cut texts, but rather about general
texts in the Qurʾan or the sound hadith that permit the believers to prevent
damage to themselves or to commit prohibited actions in a state of necessity,
i.e., when life is in danger.83 Furthermore, he concludes that the extent of per-
mission should be proportional to the scope of necessity and that the permis-
sion lapses when the situation of necessity ends.
The difference between the term “principle” used by Hallaq in reference to
Rida’s argument and the “[revealed] text” that Rida actually uses may seem at
first sight trivial, a matter of semantics. This is not the case, however. This is
because the probative weight of a principle inferred from a text is inferior to
that of a clear-cut text. In Rida’s eyes, it seems, the competition here is between
two types of text, one specific to the matter at hand and the other a general one
that refers to a situation of duress. For Rida, the situation is not one in which
an inferior type of evidence (a principle derived from a text) supersedes a text,
but a situation in which a text that establishes a general principle supersedes
a specific one. He permits such a scenario only in a situation of dire need, not

81 I add the word “texts” (al-nuṣūṣ) before the word “general” (al-ʿāmma) because it re-
lates to the beginning of the sentence, where Rida refers to “the specific texts” (al-nuṣūṣ
al-khāṣṣa).
82 Rida, Yusr, 78. The verse he refers to is Q. 6:119: “And why should you not eat of that upon
which the name of Allah has been mentioned while He has explained in detail to you
what He has forbidden you, excepting that to which you are compelled.” The verse refers
to a life-threatening situation of starvation, in which the believer is permitted to eat pro-
hibited foods, such as pork or carrion.
83 Dallal (“Appropriating,” 354–5) also understands the term al-nuṣūṣ al-ʿāmma as “gener-
al injunctions” [not principles], which include all the indicants extracted from specific
texts. Based on these indicants, the jurists designated principles (such as maṣlaḥa) that
they permitted themselves to apply, without resort to formal procedures such as analogy.
According to Rida, “these general principles also have the effect of direct textual injunc-
tions, and certain and binding rulings are derived from them (i.e., from the principles).”

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Rashid Rida and Academic Criticism of His Juristic Thought 45

in any situation in which someone seeks to achieve a certain benefit, as stated

by Hallaq. Moreover, when Rida discusses al-Tufi’s position on maṣlaḥa, he is
careful to indicate that preferring maṣlaḥa over the divine texts and the con-
sensus must be justified by specification (takhṣīṣ) and explanation (bayyān) of
the texts and abstaining from acting contrary to or betraying the texts, thereby
suspending them (lā bi-ṭarīq al-iftiyāt ʿalayhā wa-l-taʿṭīl lahā).84 In other words,
in his treatment of the relationship between the revealed texts and maṣlaḥa,
Rida adheres to the criteria and mechanisms, e.g., “specification”, defined by
pre-modern jurists such as al-Tufi and al-Shatibi.
The second main deficiency of Rida’s theory, according to Hallaq, is its lack
of theoretical depth. Here Hallaq means the lack of “philosophical, moral and
hermeneutical controls, among others, with which any policy of public in-
terest should be fitted.”85 Without this theoretical depth, Rida provided only
“juristic devices.”86 It is clear that Hallaq views modern legal theories as the
opposite and negative mirror picture of the traditional legal theory. While the
latter’s “intellectual complexity and exquisite theorization”87 allowed Islamic
law to enjoy “a long history of accommodating itself to changing social needs
without allowing itself to abandon its hermeneutical ties to revelation,” mod-
ern legal theorists have failed “to provide indigenous solutions to the epistemic
havoc wrought by modernity.”88
This claim of lack of theoretical depth presupposes that Rida intended to
replace the traditional uṣūl al-fiqh system with a new legal theory built from
scratch. In Hallaq’s words, in seeking to revive the shariʿa, modern Muslim
intellectuals expected “a new uṣūl al-fiqh … to arise out of the ashes of the
old system, an uṣūl theory that is suitable to the ever-changing conditions
of modernity.”89 However, this is not necessarily what Rida intended. One

84 Rida, Yusr, 72. This statement of Rida’s, i.e. that the revealed texts are superior to maṣlaḥa,
seriously puts into question Hamzah’s claim (“From ʿilm to sihafa,” 114) that Rida “is actu-
ally promoting maṣlaḥa to the level of arch-principle of legislation, subsuming de facto
in the process all other canonical sources.” This statement also makes doubtful her claim
(ibid.) that his promotion of maṣlaḥa is not “theoretically expounded but carried out on
the basis of a free-floating concept.”
85 Hallaq, Shariʿa, 510.
86 Hallaq, Theories, 231.
87 Hallaq, Shariʿa, 73.
88 Hallaq, Shariʿa, 542.
89 Hallaq, Shariʿa, 501. Cf. Dallal, (“Appropriating,” 341) who, based on an article that Rida
published in al-Manar in 1931, argues that Rida held that the criterion against which the
success of a religious reform is judged is not the intellectual quality of the reformer’s
teachings or the extent to which the public accepts his ideas. Rather, the crucial criterion

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46 Chapter 1

may explain the supposed lack of theoretical depth by the fact that Rida’s
theory was not in fact “a total negation of traditional legal theory,” as argued
by Hallaq. It was rather a combination of elements taken from a number of
earlier theorists, mainly al-Tufi and al-Shatibi. As Opwis has shown, al-Tufi
and al-Shatibi continued a line of distinguished jurists, including inter alia al-
Ghazali, Fakhr al-Din al-Razi (d. 1210), al-Qarafi and Ibn Taymiyya, who wrote
on maṣlaḥa from the 10th century onwards. In the words of Opwis, “[o]ver the
course of four centuries [10th–14th—RS] jurists increasingly used maṣlaḥa
as a resource for legal change” [my emphasis].90 Rida explicitly declared his
reliance on al-Ghazali and al-Shatibi in using maṣlaḥa within the framework
of analogy. It seems that Rida felt that the classical theorists had sufficient-
ly elaborated the “philosophical, moral and hermeneutical controls …with
which any policy of public interest should be fitted.” Thus, he thought that
he did not have “to start from scratch,” that he was conversing with the rich
traditional legal theoretical literature and that, as members of that tradition,
his learned readers shared the same heritage and were able to rely on it and
consult its writings.
It seems that Hallaq’s critique of Rida’s legal theory is actually a critique
of al-Shatibi and, even more so, of al-Tufi. It was al-Tufi and al-Shatibi who
elevated the concept of necessity to an inductively drawn principle, which,
under certain circumstances, may supersede an injunction of the Qurʾan or
the sunna. Assuming that al-Tufi and al-Shatibi, in their understanding of
maṣlaḥa, were a minority among Islamic legal theoreticians, does the fact that
Rida chose to rely on their legal theories necessarily constitute “a total nega-
tion of traditional legal theory”? Is not the fact that Rida appropriated the dis-
courses of al-Tufi and al-Shatibi for the needs of his own time what a juristic
reform is all about and should not be regarded as taking their theses out of
their historical contexts, as argued by Hallaq?
Revisionist definitions of tradition, which I discussed in the introductory
chapter, may help us understand Rida’s legal theories as a development within
the scope of Islamic tradition. The handing down of tradition—“a deposit of
knowledge or truth, originating with a past authority”91—across generations
within a religious community does not mean that the deposit remains the
same. Rather, it is continuously reshaped to reflect the ways in which the com-
munity in each period reads into its tradition its changing understandings of

is the extent to which the Islamic community needs these reformist ideas at a certain
point in time.
90 Opwis, Maslaha, 352.
91 Brown, Rethinking, 1–2.

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Rashid Rida and Academic Criticism of His Juristic Thought 47

reality and its circumstances, making the traditional texts relevant to its cur-
rent needs. As an argument that continues across time, what characterizes
tradition is the history of the argument and the discussion concerning cer-
tain basic doctrines, conducted through a common language and a common
discursive style. In this respect, tradition is not static but rather a means for
a continuous negotiation of socio-cultural values within the community. The
concepts of justice and rationality carry a commonly accepted meaning only
within the framework of a specific tradition. In spite of disagreements within a
tradition, there is broad agreement over which of these disagreements is criti-
cal and about the framework within which it is possible to argue about them.92
When analyzing Rida’s legal theory, one may raise a number of questions:
Did Rida use the language and discursive style of Islamic juristic tradition?
Did he abide by concepts of justice and rationality shared by members of his
society? Was he aware of the critical disputations within classical Islamic legal
theoretical works? Was he familiar with the limits of argumentation with re-
gard to these critical disputations? If the answers to these queries are in the
affirmative, as I believe they are, then one is justified in arguing that Rida’s
writings on Islamic legal theory are part of a continuous re-articulation of
Islamic tradition.

92 Zaman, Ulama, 4. On tradition as a “substance of change,” see also Taji-Farouki,

“Introduction,” 1–2.

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 Chapter 2

Qaradawi’s Program for the Renovation

of Islamic Law

General Outlines

Qaradawi holds that the renewal of the fiqh is necessary for the establishment
of a true Islamic society. He rejects the Salafi claim (e.g., the one made by Qutb)
that the fiqh is not relevant to the modern period, since it was constructed
for the circumstances of the past. Qaradawi responds to that claim by arguing
that the separation that some people make between the shariʿa and the fiqh is
artificial, because the shariʿa, which is divine inspiration, is embedded in the
fiqh, which is the product of the Islamic human intellect. The part of the fiqh
that draws on clear-cut texts is the shariʿa itself. As for the other and major
part of the fiqh, the contested one, modern jurists must select from it those
elements that are adequate to maqāṣid al-sharīʿa and to the texts and spirit of
the shariʿa. Is it conceivable that someone today engages in ijtihād without first
reading the works of the classical Qurʾan and hadith exegetes, as well as the
classical works that specify those Qurʾan verses and hadith reports that have
legal content, Qaradawi asks rhetorically? Anyone who does not consult these
works deprives himself of the benefit of an enormous treasure of knowledge
and ends up reaching conclusions that run counter to consensus.1
The renewal of ijtihād is the main component of Qaradawi’s program for the
renovation of the fiqh. He praises the virtues of the fiqh: its religiosity, human-
ity, comprehensiveness, moralism, universality, objectivity, moderation and
the balancing between individual and public interests.2 Some people fear that,
because of the fiqh’s divine source and its religious character, it does not pro-
vide room for human reason and is thus doomed to stagnation. This is a mis-
take, because in the fiqh there is a balance between stability and flexibility: the
fiqh’s general principles are immutable, yet its specific rules are flexible. Allah,
who left a wide legal field for human consideration, grants that flexibility. The
majority of the Qurʾan and hadith texts discuss general principles and not de-
tails. As for the detailed texts, only a few of them are consensual, while the
larger part of these texts is prone to various interpretations due to linguistic

1 Qaradawi, al-Ijtihad fi al-shariʿa, 205–6.

2 Qaradawi, al-Asala wa-l-tajdid, 7–22.

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Qaradawi ’ s Program for the Renovation of Islamic Law 49

problems and to different exegetical attitudes.3 It is an accepted principle that

law changes with the changing of time, place, circumstances and social cus-
tom. Finally, the fiqh takes into consideration necessities, excuses (aʿdhār, sing.
ʿudhr) and exceptional circumstances.4 The claim of Orientalist Islamologists
that the fiqh does not allow for the operation of reason is rejected by the major-
ity opinion among Muslim jurists who have held that everything in the shariʿa
is reasoned and in accordance with analogy.5
The pace of ijtihād has indeed slowed down during the last centuries,
Qaradawi admits. The jurists however have continued to provide solutions to
legal problems in a way that is practically equivalent to ijtihād. There is no
contradiction between renovating the fiqh and maintaining its authenticity
(aṣāla), if the fiqh develops from within itself and in its own style, maintain-
ing its original character and its unique nature. The meaning of renovation is
preserving the essence of the ancient, similarly to renovating an old historical
building.6
In addition to the renewal of ijtihād, the project of renovating the fiqh must
be based on the following outlines:

1. Classifying the fiqh (tanẓīr al-fiqh or ta‌ʾṣīl al-fiqh) according to wide cat-
egories (naẓariyyāt kulliyya ʿāmma) that will function as the general prin-
ciples (al-uṣūl al-jāmiʿa) from which the specific rules must be derived,
similar to Western law.7
2. Comparative research, which will include two main parts:
(1) Comparing the opinions of the various law-schools to find out
which opinion is the most adequate to current needs and explain-
ing away contradictions between different opinions when possible.
By “law-schools,” Qaradawi does not mean only the four Sunni ones
but also the Shiʿi schools and other opinions included in the juristic
heritage. In the comparison process, the legal methods and opin-
ions of the early Muslims should have priority over those of later ju-
rists, because the companions were the closest to the genuine spirit

3 Cf. Abou El Fadl (Speaking, 4), who argues that the ambiguity of the authoritative Islamic
texts (mainly the Qurʾan, but also the hadith) is purposeful.
4 Qaradawi, al-Asala wa-l-tajdid, 83–6.
5 Ibid., 88–90.
6 Ibid., 18–22, 28–30. As a reference for an authentic renovation of the law, Qaradawi mentions
ʿAbd al-Razzaq al-Sanhuri (d. 1971), the founder of modern civil law in the Arab world.
7 Ibid., 31–2. Again, Qaradawi gives as an example Sanhuri, who argued that it is possible to
extract from fiqh materials an Islamic general theory of contracts.

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of Islam. According to the same logic, the early fiqh works should
be preferred over the late interpretations of these works. This com-
parison process must not ignore the late juristic literature, since it
contains useful knowledge.8
(2) A comparison between the fiqh and Western laws (the Roman,
French and especially the German)—such comparison will verify
that the fiqh is deep-rooted and that it is independent from other
laws, as well as refute the Orientalist claim that the fiqh was influ-
enced by Roman law. The comparison will also prove the compre-
hensiveness of the fiqh and its ability to cope with new challenges
even better than other legal systems. In addition, the comparison
will clarify the legal fields in which the fiqh lags behind Western
laws because of its late stagnation. In this context, there is no wrong
in a partial borrowing (iqtibās juzʾī) of Western legal materials, as
long as the Muslim jurists inject their spirit to the borrowed ma-
terial, thereby making it an integral part of the fiqh. Finally, this
comparison will contribute the treasures of the fiqh to universal
comparative law.9
(3) Codification of the fiqh (taqnīn al-fiqh)—the purpose of the codifi-
cation, which is based on the above-mentioned stages of classifica-
tion and comparison, as well as on the renewal of ijtihād, is to make
the fiqh accessible to judges, lawyers and the general public. The
spread of the codification movement was caused primarily by glob-
al economic and commercial developments that have affected the
Muslim world. As an example, Qaradawi mentions the Mejelle, the
Ottoman codification of Hanafi civil law within the framework of
the Tanzimat reforms, which, despite its recognized shortcomings,
facilitated the work of legal practitioners. The same is true of the
civil codes, designed by the Egyptian lawyer Sanhuri for a number

8 Ibid., 33–8. As early legal works, Qaradawi mentions those of Muhammad al-Shaybani (d.
805, the disciple of Abu Hanifa, d. 767) in the Hanafi school, al-Mudawwana in the Maliki
school and Kitab al-Umm in the Shafiʿi school. Khatib (Qaradawi, 197) comments that
Qaradawi tolerates conflict of opinion among the law-schools more than Ibn Taymiyya and
Ibn al-Qayyim. Qaradawi holds that richness of opinions is necessary and a blessing from
Allah, and expects it to become a source of diversity within the Islamic community rather
than a source of internal strife.
9 Ibid., 39–41.

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Qaradawi ’ s Program for the Renovation of Islamic Law 51

of Arab states; these codes failed to base their rules entirely on the
fiqh, yet they made a considerable step in that direction.10

Qaradawi supports a kind of codification that is based on an integrative treat-

ment of the fiqh and objects to codifying the rules of a particular law-school. A
particular school’s opinions are not binding like the Qurʾan and the Prophetic
hadith. The early jurists often changed their opinions with the change of social
circumstances and needs. Moreover, a number of the opinions of the found-
ers of the law-schools were rejected by their students and contemporaries.
Fanatical devotion to a particular school eventually led to the shariʿa losing its
relevance and brought about the demise of the law-schools themselves. One
should also consider that nowadays the competition is not among the law-
schools but between the entire shariʿa and the invasive state law, which has de-
prived the shariʿa of its pre-modern status. As a result, the codification process
should pick that school opinion that is the most adequate to the requirements
of our time, guided by the Qurʾan and the sunna, the general principles of the
shariʿa (qawāʿid al-sharīʿa al-ʿāmma), the spirit of Islam, the example of the
Salaf and a lenient attitude.11
A number of contemporary ʿulama‌ʾ fear codification for three main reasons.
One, by limiting the judge to the implementation of one opinion, the legal
code “freezes” the judge’s ijtihād. Two, because the code continues to be bind-
ing even if, after a certain period of application, it is found to be inadequate.
Three, because the code detaches the judge from the fiqh works and their com-
mentaries, on which it is based. There is no doubt that these considerations
are weighty, admits Qaradawi, yet they are outbalanced by considerations that
are more critical. One, most judges lack the training that would enable them to
choose between alternative fiqh opinions. To prevent them from going astray
and to make their judicial decisions consistent, it is preferable that they follow
one opinion, chosen and formulated by the best jurists and legal experts. Two,
applying one opinion to each matter will assure the predictability of judicial
decisions. Three, there is no fear that judges will be detached from the fiqh
literature, because when they apply the code they must consult its explanatory
memorandum, as well as the commentaries on the code. Finally, the judge will
be obliged to consult the fiqh sources in matters on which the code is silent.12

10 Ibid., 49–53, 75–81. Studies on Sanhuri’s project are abundant, see, for example, Lombardi,
State Law, 92–9.
11 Qaradawi, al-Asala wa-l-tajdid, 55–8.
12 Ibid., 58–62. Qaradawi’s position is corroborated by Musa (“Colonialism and Islamic law,”
176) who remarks that while many traditional ʿulama‌ʾ objected to codification, “they did

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The shariʿa-based codification to which we look forward, Qaradawi con-

cludes, is one that utilizes the rich materials of all four Sunni law-schools (e.g.,
the Ottoman Family Rights Law from 1917), as well as alternative legal opinions
that are not part of the doctrines of the law-schools. This codification would
opt for the more lenient opinion, according to the spirit of the shariʿa. Finally,
it would preserve the option of adapting the codes to changing circumstances
and needs.13 As a codification-related project that has its own merit, Qaradawi
recommends presenting the fiqh in the framework of an encyclopedia, written
in a plain language, easily accessible to the modern lay reader, who expects
to find the data he is interested in rapidly, easily and in a computerized form.
In this context, Qaradawi calls for completing the publication of al-Mawsuʿa
al-Fiqhiyya, an encyclopedia on the fiqh initiated by the Kuwaiti Ministry of
Awqaf, as well as for continuing the publication of scientific editions of fiqh
texts and manuscripts.14

The Renewal of ijtihād: General

Qaradawi claims that, although the ʿulama‌ʾ are well aware of the necessity of
ijtihād today, they fear the entrance of charlatans to the legal field (he calls
them “swindlers and intruders,” adʿiyāʾ wa-ṭufayliyyūn), those who have a
ready answer for every question and do not bother to do research and consult
knowledgeable people. More dangerous are those who wish to introduce to
the shariʿa elements that are foreign to its nature and values. The worst among
these charlatans are those who “sell” their knowledge to state authorities in
return for worldly considerations. It is possible that the desire to block char-
latans is what has brought the ʿulama‌ʾ of the latest generations to object to
ijtihād, based on the juristic mechanism of “eliminating pretexts,” or, literally,
“preventing the means [for a forbidden act]” (sadd al-dharāʾiʿ).15 According
to this mechanism, whenever a formally legal transaction leads to something
contrary to the purpose of the law, that transaction is considered illegal and
void. The exaggerated operation of eliminating pretexts however inflicts heavy
damage, because it silences those ʿulama‌ʾ who are worthy of ijtihād and conse-
quently intensifies the stagnation of Islam. In addition, the blocking of ijtihād

nevertheless find an elective affinity to the practice, ordered symmetry, procedures and
positivist features of colonial laws.”
13 Ibid., 62–5.
14 Ibid., 66–75.
15 Opwis, Maslaha, 63.

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Qaradawi ’ s Program for the Renovation of Islamic Law 53

is practically impossible in our age of open media and freedom of speech. The
number of those who demand the right to practice ijtihād for themselves is
on the increase, whether we like it or not. Therefore, Qaradawi concludes, it is
better to define the framework and rules for a balanced ijtihād, suitable for the
Islamic “middle community” (ummat al-wasaṭ).16
Currently, ijtihād is essential due to the immense technological, scientific,
social and economic developments that have taken place in the modern era.17
On the one hand, Muslim extremists wish to justify anything in Islamic terms,
even if it contradicts Islamic teachings, by an exaggerated resort to maṣlaḥa
at the expense of textual orders. On the other hand, conservative hardliners
ignore the circumstances, needs and obstacles of our time. Their conservativ-
ism is rooted either in adherence to a particular law-school (which is redun-
dant, because even the founders of the law-schools prohibited their followers
to imitate them blindly) or to the traditions of early Islam. Other opponents of
change are detached from the language and culture of the present times or live
among pious Muslims like themselves, unaware of surrounding social practic-
es that require juristic categorization as good or bad. This conservatism makes
the lives of the believers hard, while Allah intends the shariʿa to be lenient.18
It is incumbent that contemporary ijtihād, especially with respect to public
topics, be collective (jamāʿī), in the form of a juristic council (majmaʿ ʿilmī),
which includes the best scholars and makes brave decisions, detached from
any political and social pressures. The individual ijtihād of any council’s mem-
ber would form the basis for a collective brain storming, thereby securing a
good result. A unanimous agreement on a legal rule by the council’s members
will be counted as the consensus of “the mujtahids of the age;” such a consen-
sus is binding (lāzim) for any future decision-making and legislation. If the
council’s members differ, the majority’s opinion would serve as the preponder-
ant opinion (al-arjaḥ).19
For ʿulama‌ʾ such as Qaradawi, the idea of collective ijtihād serves a num-
ber of crucial functions. First, it allows them to evade their longstanding res-
ervations about undertaking ijtihād on the grounds that they are not qualified
to do so. Second, collective institutional ijtihād offers possibilities for filling

16 Qaradawi, al-Ijtihad fi al-shariʿa, 173–4.

17 Ibid., 101–7.
18 As an example for an unjustified hardening of the believers’ lives, Qaradawi mentions
(ibid., 153–5, 174–8) the total rejection of artificial insemination. He explains that modern
medicine enables the use of the husband’s semen and the wife’s ovules for fertilization
through a safe procedure that prevents any doubts about the child’s paternity.
19 Ibid., 96–7, 182–4.

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some of the space opened up by the weakening of the traditional law-schools.

Third, it offers prospects for political influence, even of resisting the state’s in-
tervention in matters of religion. Fourth, collective institutional ijtihād may
be seen as a response to the fragmentation of authority, since it enables the
distancing of intellectuals who are not professional ʿulama‌ʾ from the process
of ijtihād. Finally, it serves as a mechanism for fostering new networks among
the ʿulama‌ʾ.20
As the first priority, current ijtihād must focus on novel topics. The second
priority is to re-discuss old topics to strengthen the rules governing them or to
adapt them to current circumstances. By old topics, Qaradawi does not refer
only to those on which the revealed texts are silent and which were decided
based on customs or temporary benefits that are not relevant anymore; he
means topics that jurists decided upon based on probable textual evidence, as
well. One may expect, Qaradawi argues, that the present mujtahid will come
upon legal indicators that were either not discovered by scholars of the past,
or skipped over and consequently forgotten, or rejected by most scholars or by
certain political forces.21
Current ijtihād must be conducted in three ways: by state legislation, by is-
suing legal opinions and, finally, by academic research. Legislation on matters
not regulated by the shariʿa is necessary, according to Qaradawi, for the proper
regulation of a modern society. Discretionary punishments (taʿzīr)—that is,
punishments not specifically stipulated by Islamic law and left instead to the
discretion of the ruler—need to be legislated to curb interest, usurpation of
the rights of orphans, neglecting prayers, harassing or assaulting women in the
streets and other evils. One may say that Qaradawi’s call for penalizing Qurʾanic
moral injunctions by way of state legislation amounts to “positivization of the
shariʿa.”22 According to Qaradawi, an international body of collective ijtihād,
free from pressures on the national level, must approve any draft of legisla-
tion, prepared in the framework of the above-mentioned project of codifying
the fiqh. The issuance of legal opinions would be conducted by individuals or
by bodies, such as the Egyptian Dar al-Ifta‌ʾ; the Fatwa Council and Majmaʿ al-
Buhuth al-Islamiyya at al-Azhar; and Majmaʿ al-Fiqh al-Islami subordinated to

20 Zaman, “Ulama and contestations,” 227–9.

21 Qaradawi, al-Ijtihad fi al-shariʿa, 96–7.
22 Cf. Layish, “Modernists,” 264. According to Zaman (Modern Islamic Thought, 115–16),
through this strategy of Qaradawi, “the distinction between sin and crime, between moral
and legal infractions [that exists in the Qurʾan], collapses …Qaradawi seeks the regula-
tion of both through new legislation, and he sees the justification for such initiatives in
maṣlaḥa.”

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Qaradawi ’ s Program for the Renovation of Islamic Law 55

Rabitat al-ʿAlam al-Islami in Saudi Arabia. Academic research includes works

written by ʿulama‌ʾ, as well as academic studies that meet the required juristic
standards and focus on a particular and well-defined topic (Qaradawi calls this
kind of ijtihād “partial,” i.e., ijtihād juzʾī).23

The Qualifications for Practicing ijtihād in the Present Generation

For Qaradawi, the exemplary figure of a mufti is that of Rida, combining su-
perlative juristic knowledge, proficiency in the problems challenging the in-
dividual and the public, and responsibility to reform Islam and to disseminate
it.24 The consensual qualifications for ijtihād include knowledge of the Qurʾan
and of the sunna, proficiency in the Arabic language, knowledge of the con-
sensual rules of the fiqh, knowledge of Islamic legal theory and of maqāṣid al-
sharīʿa. Some scholars hold that knowledge in theology, logics and all fiqh rules
(including the disputations between the law-schools) are also required, but
Qaradawi holds that they are needed only for conducting the supreme level of
ijtihād (ijtihād muṭlaq) and are not necessary for lower levels of ijtihād.25
The claim of ultra-orthodox Muslims that no one today meets the required
level of knowledge necessary for ijtihād is wrong, Qaradawi argues. This re-
quired level of knowledge is attainable, similarly to the expertise required for
any other profession. A number of modern ʿulama‌ʾ proved their qualifications
for ijtihād, e.g. ʿAbduh, Rida, Shaltut, the Egyptian ʿAbd al-Wahhab Khallaf
(d. 1956), the Tunisian al-Tahir b. ʿAshur (d. 1973) and the modern Egyptian
jurist and lawyer Muhammad Abu Zahra (d. 1974). The invention of print has

23 Qaradawi, al-Ijtihad fi al-shariʿa, 134–8. The idea that ijtihād is not limited to those jurists
who possess superb and comprehensive legal knowledge, but is permissible in a limit-
ed form also to jurists who are expert in a specific field or theme, was expressed by Ibn
Taymiyya. See Rapoport, “Ibn Taymiyya,” 201–2.
24 Qaradawi, al-Indibat wa-l-tasayyub, 12–14. See also al-Khateeb (“Qaradawi as an
Authoritative Reference,” 102), who holds that this mixture of the role of the jurist and
that of the intellectual who elaborates on topics of public interest is the trademark of
Islamic reformism, starting with ʿAbduh.
25 Qaradawi, al-Ijtihad fi al-shariʿa, 32–62. The qualifications for ijtihād mentioned by Rida
are fewer than those stated by Qaradawi. They include “an understanding of the Qurʾan
and the normative example of the Prophet, as well as knowledge of the purposes of the
law (maqāṣid al-sharʿ) [and] cognizance of people’s customs and circumstances, for
the rulings of the sacred law, especially those that concern human interaction, turn
on the common good.” See Zaman, Modern Islamic Thought, 77, quoting from Rida’s Kitab
muhawarat al-muslih wa-l-muqallid, 134.

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made the life of the current mujtahid easier than that of past ones.26 In any
case, the current mufti must be thorough, cautious and modest. He must do
his utmost to search for the truth, without hurry, to consult other jurists on
difficult topics, and, if necessary, to pass a legal query directed to him to anoth-
er scholar whom he thinks is more qualified to treat this particular question.
There is no shame for a scholar to say that he does not know the response to a
certain question.27
Qaradawi conceives himself not only as a mufti but also as a teacher, a phy-
sician, a reformer (muṣliḥ) and a spiritual guide (murshid). The mufti must
display a spirit of fatherhood, fraternity and compassion towards his public
and abstain from accusations and condescending attitudes. The public should
view the mufti as a caring and friendly figure, rather than as a policing one.
The mufti is sometimes a lawyer who defends his clients and at other times
a judge who decides between them justly. The mufti must also treat his ques-
tioners like a psychologist, in order to make them trust him and open their
hearts to him.
In addition to juristic knowledge, the mujtahid must have general acquain-
tance with current human life (including state laws and the various sciences).
The application of the fiqh in specific circumstances requires a thorough un-
derstanding of actuality. Immersion in the juristic literature that deals with
past problems is not enough for the contemporary mufti. To understand reality
and to analyze it correctly, he needs to conduct detailed investigations and to
look for established facts, being cautious of suspected sources and propaganda
material. In this context, Qaradawi welcomes the integration of professionals
from various academic fields in the process of juristic decision-making.28
Acquaintance with human life necessitates sensitivity to people’s problems
and the writing of legal opinions in a language that is typical of the period,
characterized not only by the use of certain expressions but also by certain
ways of thinking and understanding. The mufti therefore must write and talk

26 Qaradawi, al-Ijtihad fi al-shariʿa, 109–12.

27 Qaradawi, “Man huwa al-muʾahhal li-l-fatwa,” 100.
28 Qaradawi mentions acquaintance with contemporary reality (al-wāqiʿ al-muʿāṣir) as the
fourth jurisprudential source, following the Qurʾan, the sunna and the juristic literature.
See Qaradawi, Jihad, 26–9. Caeiro and al-Saify (“Qaraḍawi in Europe,” 116–17) mention
the concept of fiqh al-wāqiʿ in the context of Qaradawi’s providing of pragmatic non-­
textual justifications for Muslim life in the West. In one of his fatwas (“Jihad al-Dafʿ,”
485), Qaradawi objects to the fatwa of the Saudi state mufti ʿAbd al-ʿAziz b. Baz (d. 1999),
which supported the Oslo Accords between Israel and the Palestinians. He claimed that
Ibn Baz’s confusion in this matter was not the result of his lack of proficiency in the legal
texts, but of his wrong understanding of the political situation.

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in a plain and precise style, devoid of overuse of technical terms and of dif-
ficult or odd expressions; he must simplify his response by explaining in detail
points that are difficult for understanding and by using clarifying examples.
Finally, the mufti must write logically and abstain from trying to arouse feel-
ings of affection among his audience by using exaggerations, since the Qurʾan
itself is logical and respectful of knowledge.29
Because intellectual skepticism is a salient characteristic of the modern age,
the mufti must compose reasoned legal opinions, in which he explains how
his opinion fits the general logic of Islamic legislation (ḥikmat al-tashrīʿ). A
legal opinion is meaningless, dry and hard to digest for many people, unless
the mufti discusses the evidence (dalīl) that supports the opinion and reflects
its spirit and beauty. The mufti must also discuss the counter-arguments that
one may raise against his opinion to prevent the questioner from objecting to
the fatwa. Over the course of his career as a mufti, Qaradawi has found that
it is useful to compare the position of the fiqh on the matter at hand to the
positions of other religions, schools or philosophies, to demonstrate the su-
premacy of the Islamic solution. If the mufti prohibits an act that the ques-
tioner thinks is permissible, he must direct the questioner to a permissible
alternative (e.g., “Islamic banking” instead of deposits paying fixed interest rate
in regular banks). Finally, the mufti must tie his opinion to other legal rules to
demonstrate its justice and beauty.30
Why must the mufti be righteous and God-fearing? Is not his juristic excel-
lence a sufficient requirement for his job? Qaradawi explains that the ʿulama‌ʾ
have always insisted on this requirement to immunize the mufti from follow-
ing his personal desires. In his work, the mufti must strive to satisfy Allah alone,
not the ruler or the public. In Qaradawi’s eyes, Ibn Taymiyya was an exemplary
figure in this respect. His conservative opponents, who were stagnant imita-
tors, incited the Mamluk rulers against him, which resulted in his imprison-
ment for long periods and eventually led to his death. However, his personal
suffering did not deter him from uncompromising insistence on his legal opin-
ions, following his conscience and the legal evidence he found.31

29 Qaradawi, “Nahji fi al-ifta‌ʾ,” 13–4, 24, 35.

30 E.g., the fact that females get half the share of males in inheritance may seem like legal
deprivation of females. Nevertheless, a thorough examination of the financial obligations
of both sexes shows that inheritance rules are just and balance the rights and obligations
of all family members. See Qaradawi, ibid., 15, 24–8.
31 Qaradawi, “Man huwa al-muʾahhal lil-fatwa,” 100; al-Indibat wa-l-tasayyub, 10–12, 38–44.

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The Fields and Themes Opened for ijtihād

1 Ijtihād in the Field of Legal Theory

Some argue that uṣūl al-fiqh are certain (qaṭʿī) and therefore are not open for
ijtihād. Qaradawi rejects this claim and holds that there is an extensive room
for such ijtihād, as a follow-up to the works of al-Shatibi and al-Shawkani. There
are still three main theoretical disputations among the ʿulama‌ʾ, Qaradawi ar-
gues. The first is where to draw the line between the legal part of the sunna
and the “non-legal” parts of it. Within the legal part, theorists still debate as
to which Prophetic orders are eternal and which are temporary, and dispute
whether the Prophet performed a specific act out of divine inspiration or in his
mundane capacity as the leader of his community. The second main theoreti-
cal dispute concerns the validity of consensus, especially the “silent” (sukūtī)
one, as well as of consensus based on benefits that are no longer relevant to
modern realities. The third dispute relates to the validity of analogy, istiḥsān,
istiṣlāḥ and maṣāliḥ mursala, the proper time for using these mechanisms
and the rules and limits regulating their operation.32 These observations of
Qaradawi are brave, because, as one of the leading muftis in the Muslim world
today, he admits to being puzzled by a number of important components of
Islamic legal theory.

2 Ijtihād in the Field of Positive Law (furūʿ al-fiqh)

The basic distinction made by Qaradawi is between rules of worship (aḥkām
al-dīn) and mundane rules. The religious rules are either permanent or change-
able. The permanent kind comprises three categories: (1) theological rules
(ʿaqāʾid); (2) rules pertaining to worship (the general principles of these rules
are permanent, but their details are open for ijtihād); and (3) moral values.
There are two levels of rules that regulate mundane life, e.g., family law,
inheritance, economic transactions, in addition to penal, criminal, constitu-
tional, administrative and international law. The first level, representing sta-
bility and continuity, involves fundamentals, principles and rules of general
character established by the Qurʾan or the sunna, which are definite both in
terms of their authenticity and their meaning (al-nuṣūṣ al-qaṭʿiyya al-thubūt
al-qaṭʿiyya al-dalāla). The meaning of these texts is consensual, and the rules
based on them are epistemologically certain and unaffected by the change of
time, place and circumstances33 (e.g. the prohibitions on drinking wine, eating

32 Qaradawi, al-Ijtihad fi al-shariʿa, 68–70, 97; al-Asala wa-l-tajdid, 42–3; “Tajdid usul al-fiqh,”
152–60.
33 Qaradawi, “al-Thabit wa-l-mutaghayyir,” 184.

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pork, taking interest, the thief’s punishment and the rules of inheritance). Put
differently, such a rule is “known from religion by necessity” (maʿlūm min al-dīn
bi-l-ḍarūra). This means that many pieces of evidence support the rule, to the
extent that it is already anchored in the conscience of the entire Islamic com-
munity and does not need to be supported by evidence anymore.34 Qaradawi
warns forcefully against doubting these definite rules, because doing so will
leave the Islamic community without a supportive authoritative reference
and without a scale against which its actions can be measured (bi-dūn marjaʿ
yuʿawwal ʿalayhi wa-lā miʿyār yuḥtakam ilayhi).35 Moreover, these rules protect
the conceptual and behavioral unity of the Islamic community.36
The second level of rules that regulate mundane life relates mainly to the
application and the procedural aspects of the specific rules. Here definite texts
are unavailable, only probable ones (ẓanniyāt), or the revealed texts are silent,
so that this type of rules is open for ijtihād. The silence of the revealed sources
(especially the Qurʾan) on such issues is not the result of divine negligence, but
rather the outcome of Allah’s mercy towards the believers, who need flexibility
to adapt these rules to the changing circumstances of human life.37 Qaradawi
insists that in the battle against secular inclinations in their societies, the
Islamists must focus on the “certain” rules of creed and law rather than on the
“probable” rules that are prone to contradictory interpretations.38
It is important to note that Qaradawi does not view the division, made by
the Modernists ʿAbduh and Rida, between rules of worship, which are eter-
nal, and rules pertaining to human transactions, which are changeable by way
of ijtihād, according to the change of time and clime, as the most important
one. The significant division, according to Qaradawi, is between certain rules,
which are based on definitive revealed texts, and therefore are eternal, and
other rules, which are based on probable texts or no texts at all and there-
fore are temporary and prone to change by way of ijtihād. What emerges from
Qaradawi’s division is that, on the one hand, ijtihād that pertains to the details
of the major worship obligations is legitimate. One such example is the duty
of almsgiving (zakat)—the Qurʾan discusses only its general principles and
therefore its details are open for ijtihād (as exemplified by Qaradawi himself
in his doctoral thesis on the zakat). On the other hand, there are rules pertain-
ing to human transactions that are not prone to ijtihād, because they draw on

34 Qaradawi, Awlawiyyat, 52.

35 Qaradawi, al-Ijtihad fi al-shariʿa, 178; Maqasid, 197–8.
36 Qaradawi, “al-Thabit wa-l-mutaghayyir,” 186.
37 Qaradawi, ibid., 184; al-Ijtihad fi al-shariʿa, 65; Maqasid, 198–9.
38 Qaradawi, Awlawiyyat, 52–3.

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definite and certain revealed texts. Thus, for example, Qaradawi holds that the
Qurʾanic verses on polygyny are definite revealed texts and therefore the per-
mission for polygyny is unchangeable.

Selective vs. Creative ijtihād

Qaradawi distinguishes between two types of required ijtihād, an easy and a

more difficult one: a selective ijtihād that decides between existing fiqh opin-
ions (ijtihād tarjīḥī intiqāʾī, see the comparative research mentioned above)
and an original-creative ijtihād (ijtihād ibdāʿī inshāʾī). The first type, consider-
ing that most of the materials included in the fiqh are controversial, involves
a selection from among fiqh opinions by evaluating the quality of the textual
evidence that supports each opinion, according to the rules of preponderance
(tarjīḥ).39 The jurist must prefer opinions that are more suitable to current
needs, are more lenient and better serve the attainment of maqāṣid al-sharīʿa
and the maṣlaḥa of the believers. The range of selection between fiqh rules
covers the opinions of the law-schools, including minority opinions, because
even within each law-school the preponderant opinions changed from time to
time. The current mujtahid must choose only one opinion, to prevent leaving
his readers and listeners embarrassed.40 Qaradawi supports the integration of
a number of legal opinions originating in various law-schools within one legal
question or topic, explaining that such integration is not a “patchwork” (talfīq,
i.e., a combination of elements taken from a number of law-schools that, in
its final form, is not recognized by any of the schools).41 While talfīq is arbi-
trary, what Qaradawi means is a selection informed by the rules of preponder-
ance and by weighing the force of the textual evidence. It is also permissible
to select opinions of the Salaf, which preceded those of the founders of the
law-schools.42

39 Rida believed that taqlīd did not mean blind imitation but the adoption of that opinion
among the law-schools’ opinions that was best supported by evidence from the revealed
sources; see Skovgaard-Petersen, “Defining,” 74, 131–2.
40 Qaradawi, al-Ijtihad al-muʿasir, 25.
41 On the use of talfīq in modern Egyptian state legislation, see Shaham, Family, 14. Krawietz
(“Cut and paste”) has demonstrated that the term was not coined in the 20th century, as
argued by Noel Coulson, but was used in pre-modern and early-modern juristic literature.
42 Qaradawi, al-Ijtihad fi al-shariʿa, 115–9. See also Qaradawi, “Ikhtilaf al-a‌ʾima,” 139–40.

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Qaradawi ’ s Program for the Renovation of Islamic Law 61

In a long legal opinion, titled “Is it permitted to apply a [juristic] opinion

that contradicts the [opinions of the] law-schools,”43 Qaradawi permits the
adoption of a juristic opinion that was considered odd (gharīb) by a specific
law school, if it is found that such an opinion is based on evidence that is stron-
ger than that supporting the popular (mashhūr) opinion of the same school.
In addition, the jurist may choose such an opinion if he finds it more appropri-
ate to current needs than the preponderant school opinion. Qaradawi explains
that in the age of the founders of the law-schools, other scholars who were
as good as they were, perhaps even better, lived; there were also great schol-
ars in the generations that preceded those of the founders of the law-schools.
The latter did not claim to be immune from error; they prohibited other jurists
from imitating them blindly,44 and often changed their opinions when com-
ing across new evidence. It is a fact that in the juristic literature one finds dif-
ferent opinions on the same topic attributed to the founder of a law-school.45
Disputing an opinion of a founder of a law-school does not mean doubting his
supreme scholarship; even the companions sometimes erred. There is no evi-
dence to support the claim that taqlīd to a particular law-school is obligatory
or even recommended. On the contrary, adherence to someone who is, unlike
the Prophet, not immune from error is a clear mistake and a deviation from the
instructions of the Salaf during the formative period of Islam.46
The eccentricity of certain legal opinions is relative, Qaradawi contin-
ues, and may change in new circumstances.47 There is no place to fear that

43 Qaradawi, “Hal yajuz al-ʿamal,” 119–31.

44 Rida held the same opinion, see Skovgaard-Petersen, “Defining,” 74, 130.
45 Qaradawi mentions in that fatwa that the two great students of Abu Hanifa, Abu Yusuf
(d. 798) and al-Shaybani, often contradicted their master after stumbling upon legal evi-
dence with which he had not been familiar.
46 Qaradawi supports his position by referring to the Hanafi Abu Zayd al-Dabbusi (d. 1039)
and the Zahiri Ibn Hazm (d. 1064), who both objected to taqlīd. According to Khatib
(Qaradawi, 196), Qaradawi agrees with al-Shawkani that ʿulama‌ʾ must not practice taqlīd,
but, while al-Shawkani held that ordinary Muslims may practice taqlīd, Qaradawi thinks
that, because laymen usually follow the opinion of a mufti in every case, they are permit-
ted to move from one school of law to another.
47 Qaradawi provides two examples in support of his claim: the first is the juristic opinion
that a conditional divorce, by which the husband wishes to force his wife to act according
to his wish, does not count as a divorce (because the husband lacked intention to di-
vorce). Until the 20th century, jurists considered this opinion (attributed to Ibn Taymiyya,
see Rapoport, “Ibn Taymiyya,” 219) odd, but since then it has become acceptable and ad-
opted by the legislations of a number of Muslim states. The second example is the grand-
father’s “obligatory bequest” in favor of his orphaned grandchildren. See Shaham, Family,
201, 220; and n. 55 below.

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d­ ifferences of opinion regarding the details of legal rules will split the Islamic
community, because such differences of opinion existed even among the
companions.48 In conclusion, Qaradawi determines that any jurist today must
act as a “captive of the legal indicator and evidence” (asīr al-dalīl wa-l-ḥujja),
i.e. to rate each legal opinion solely according to the strength of the textual
evidence supporting it. The jurist must adopt an eccentric legal opinion that
is proved stronger than the preponderant opinion even if the former is more
lenient, because Islam is the lenient religion.
In another place, Qaradawi points out that a jurist, upon choosing between
legal opinions, must consider three contemporary factors: (1) local and inter-
national social and economic changes—in the field of family law, a number of
minority or rejected fiqh opinions are more appropriate for our generation, due
to the general improvement in the status of women.49 In the economic realm,
the jurist must adopt opinions that support the poor and contribute to the
narrowing of socioeconomic gaps. In the political field, because democratic
conceptions are prevalent, the jurist must accept the majority opinion among
the shūra50 members as binding and the government must apply that opinion.
Finally, in the contemporary era of international cooperation and globaliza-
tion, the jurist must reject the validity of the traditional Islamic division of the
world into “the territory of Islam” and “the territory of war” and the perception
of “holy war” (jihad) that emanates from such division, and support Muslim life

48 Qaradawi refers in this context to the refusal of Malik b. Anas (d. 795) to accept the pro-
posal by the Abbasid caliph to legislate Malik’s work, al-Muwatta‌ʾ, as state law, because
it was impossible to settle the disputes among the jurists of that time. The caliph had to
accept Malik’s refusal. See Vogel, Islamic Law, 314–16.
49 Qaradawi cites two examples: the first is that, today, when women enjoy free access to the
public sphere, it is improper to apply the preponderant opinion that prohibits women
from praying at mosques. The second example is the prevailing opinion among the ma-
jority of the law-schools that a woman needs a male marriage guardian for conducting
her first marriage, even if she has already reached her maturity. This opinion, Qaradawi
argues, is not adequate to modern conditions, in which women are educated and form an
important part of the workforce; thus, it is required to adopt the Hanafi position, accord-
ing to which a major bride is free to choose her partner without needing the approval of
her closest male relative. Unlike Qaradawi, Rida argued in a 1904 legal opinion that the
requirement of a woman to have a marriage guardian is valid and binding, because it is a
normative Islamic position and had been a consensual practice among the companions.
See Zaman, Modern Islamic Thought, 195–6.
50 The shūra was originally the council of leading men who elected the third caliph,
ʿUthman. Rida used the term for his proposed council of leading jurists that advises the
ruler on issues of legislation (See Ch. 1). Generally, in modern Islamic discourse the term
shūra has been often associated with democracy. See Shavit, “Shura.”

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Qaradawi ’ s Program for the Renovation of Islamic Law 63

in the Western world. The new challenges of Muslim life in the West requires
selecting that fiqh opinion that is more beneficial to Muslims, keeps them from
danger and prevents them from doubting their Islamic belief;51 (2) the modern
development of the natural sciences that has revolutionized human knowl-
edge about the universe. This development requires Muslims to opt for those
fiqh opinions, even minority or rejected ones, which modern science proves
to be correct;52 and (3) the needs and necessities of the current generation of
Muslims, which requires the jurist to be lenient in his decisions.53
“Creative ijtihād,” usually dealing with phenomena created by modern de-
velopments and technologies, leads to the formulation of a juristic opinion
that did not exist in the past. If there are two different opinions regarding an
old topic, “creative ijtihād” may formulate a third one.54 Another possibility is a
combination of “selective” and “creative” ijtihād, i.e. selecting one fiqh opinion
and then adding to it a novel element.55

51 Qaradawi, al-Ijtihad fi al-shariʿa, 119–23.

52 As an example, Qaradawi argues that the maximum duration of pregnancy according to
the preponderant opinions of the majority of the Sunni law-schools is much longer than
the nine-month duration established by modern science (the Hanafis specify two lunar
years, the Shafiʿis four years and the Malikis five years). It is therefore required today to
opt for the minority opinion of Ibn Hazm (nine months) or of ʿAbd Allah b. ʿAbd al-Hakam
(d. 829; he prescribed 1 year); the latter’s opinion was adopted by modern Muslim states in
the framework of family-law legislations (for the Egyptian legislation on this matter, see
Shaham, Family, 156). In addition, the juristic opinion that a child may be affiliated to two
fathers must be rejected in favor of al-Shafiʿi’s opinion, proven by modern science, that a
child can have only one biological father. See Qaradawi, al-Ijtihad fi al-shariʿa, 123–5.
53 E.g. if allowed by her husband, a woman may take a regular air flight, even if unaccom-
panied by a male relative. This permission is based on an opinion by Ibn Hazm, who was
more lenient than other pre-modern jurists regarding a female’s freedom of movement;
see ibid., 125–6.
54 As an example, Qaradawi (ibid., 126–8) refers to his own innovation concerning the pay-
ment of zakat on rented land. In the fiqh, some jurists imposed this obligation on the
land’s owner while others imposed the payment on the renter. Qaradawi formulates a
third opinion, dividing the obligation between the two, according to novel criteria.
55 In the Qurʾan, there seems to be a contradiction between the “verses of inheritance,” pre-
scribing fixed shares of the deceased’s estate to specific relatives of his, and the “verse of
bequest,” ordering the believer who foresees his death to provide for his relatives by way
of a bequest. The traditional Qurʾan exegetes, applying the mechanism of “abrogation”
(naskh), ruled that the “verses of inheritance” abrogated the “verse of bequest.” As a result,
the fiqh prescribes that making a bequest is voluntary and that, if made, it must not ex-
ceed a third of the estate and must not be designed in favor of a legal heir. An isolated fiqh
opinion was that of the literalist Ibn Hazm, who, interpreting the Qurʾanic text verbally,
prescribed that, if the deceased did not write a bequest, a share must be deducted from

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64 Chapter 2

In this chapter, I have analyzed Qaradawi’s general vision of the renewal of

Islamic law by way of ijtihād. The next chapter provides the scheme by which
he practically applies his general vision, by detailing the ways in which uṣūl
al-fiqh function in his system. Because both chapters complete each other
thematically, the conclusions relating to them appear in the end of the next
chapter.

his estate as a bequest. Ibn Hazm did not specify either the size of this share or the exact
identity of the recipients of the bequest. In the modern period, legislators relied on Ibn
Hazm’s opinion to ameliorate the status of the deceased’s orphaned grandchildren, who,
according to the inheritance rules, are entirely excluded from the inheritance by their
uncles. The element added by modern legislators to Ibn Hazm’s opinion is the size of the
“obligatory bequest” (the share to which the orphans’ father was entitled had he outlived
his father, up to one third of the estate) and the identity of the recipients of this share (the
deceased’s orphaned grandchildren). See Qaradawi, al-Ijtihad fi al-shariʿa, 129–33.

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 Chapter 3

The Proper Use of the Classical Sources of Islamic

Jurisprudence in the Modern Age

As argued in the introductory chapter of this book, Qaradawi locates himself,

as the leader of the Wasatiyya, between two trends that he views as extrem-
ist and with each of which he conducts bitter debates. The first trend is the
modern Ahl al-Hadith, whom Qaradawi calls the New Literalists (al-Zahiriyya
al-Judud), because their literal interpretation of the Qurʾan and especially
of the hadith is reminiscent of the medieval Zahiri school, which, due to its
extremism, did not survive the test of history and vanished from Islamic or-
thodoxy. The second trend is Western-oriented Muslim intellectuals, named
by Qaradawi the New Deniers (of Allah’s attributes, al-Muʿattila al-Judud), be-
cause of their disregard of the revealed texts. His choice of the name Deniers
for them indicates the similarity that he sees between them and the Muʿtazila
rationalist theological trend that Islamic orthodoxy rejected, as it did with
the Zahiris.1

The Qurʾan

The central place that the Qurʾan and the sunna occupy in Qaradawi’s juristic
method, and the preference he grants to these two sources over fiqh rules es-
tablished by the law-schools, is considerably influenced by the Azhari scholar
Sayyid Sabiq, the author of the voluminous work, Fiqh al-sunna, published
in 1945.2 The Qurʾan, according to Qaradawi, constitutes a program (manhaj)
that shapes the life of the Muslim in terms of belief and worship and his rela-
tions with fellow Muslims and with non-Muslims. The measure of importance
attached to various topics must be proportional to the Qurʾan’s measure of

1 Qaradawi, Maqasid, 13, 40; Gräf, “Wasatiyya.” See also Abou El Fadl (Speaking, 99–100), who
criticizes some Muslim intellectuals who, by using Western theories carelessly, impose artifi-
cial categories on the historical and intellectual experience of Muslims.
2 The freedom from taqlīd to a particular law-school, preached by Sabiq in this work, as well
as his uncomplicated style of writing, aiming to make his texts accessible to a wide range of
readers, and his lenient legal approach, seeking to cause Muslims to love their religion, influ-
enced Qaradawi’s first work, al-Halal wa-l-haram fi al-Islam (Khatib, Qaradawi, 180).

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66 Chapter 3

interest in each one. A topic on which the Qurʾan is silent must be regarded by
the jurist as marginal, left by Allah to be discussed by the sunna or by a rational
ijtihād. Focusing the Islamic mind on marginal Qurʾanic topics, at the expense
of more central topics, reflects the deterioration of Islamic belief.3
Qaradawi declares that the Qurʾan and the sunna are the two most impor-
tant sources of Islamic jurisprudence. This declaration finds support in the
title of one of his works, “The Qurʾan and the sunna are the supreme sources
of authority in Islam” (al-Marjaʿiyya al-ula fi al-Islam li-l-Qurʾan wa-l-sunna).
In addition, he composed a comprehensive monograph on the Qurʾan, titled
“How do we deal with the glorious Qurʾan” (Kayfa nataʿamal maʿa al-Qurʾan
al-azim).4 It is an Islamic duty to enforce Allah’s law and whoever neglects this
duty lives in a situation of infidelity.5 It is incumbent upon Muslims to accept
and apply all the rules of the Qurʾan and not only the parts that serve the inter-
ests of a certain individual or a group. Believing in one part of the Qurʾan and
rejecting other parts is similar to the sin of the People of Israel and constitutes
the pitfall in which today’s secular people are trapped.6

3 As an example, Qaradawi refers to the exaggerated interest of the jurists in the rules of ritual
purification, discussed by the Qurʾan in only one verse, compared to their relative neglect
of the duty of jihad, to which the Qurʾan dedicates a number of full chapters. See Qaradawi,
Qurʾan, 418–23, 451, and 453–7. This criterion set by Qaradawi for rating the importance of
various Qurʾanic topics is also central to his “fiqh of priorities.” See Qaradawi, Awlawiyyat,
65–6.
4 It is worth noting that Muhammad al-Ghazali published a work under the same title in 1991,
i.e. before Qaradawi (the first edition of Qaradawi’s work appeared in 1998). In another work
on the Qurʾan, published in 1995, The thematic interpretation of the chapters of the distin-
guished Qurʾan (al-Tafsir al-mawduʿi fi suwar al-Qurʾan al-karim), al-Ghazali supports a holis-
tic and thematic exegesis of the Qurʾan; see Baker, Islam without Fear, 100–3. Qaradawi adopts
the methodology of thematic exegesis of the Qurʾan, as indicated by his three monographs
on forbearance, reason and knowledge in the Qurʾan; see Khatib, Qaradawi, 149–50. A thor-
ough comparison of Ghazali’s and Qaradawi’s works on the Qurʾan is beyond the scope of
this study.
5 This claim echoes Sayyid Qutb’s concept of the New Jahiliyya.
6 For example, Qaradawi criticizes those Muslims who abide by the Qurʾanic rules of worship
yet reject its orders concerning retaliation, seeking to replace it by alternative, supposedly
less cruel, punishments, such as imprisonment. From a theological perspective, Qaradawi
argues, both rules of worship and of retaliation are divine, and Allah knows better than hu-
mans do. From a social perspective, rejecting the Qurʾanic rules of retaliation is not consid-
erate towards the victim’s family; also, that criminals do not have to pay with their lives for
their crimes will have a negative effect on the entire society. See Qaradawi, Qurʾan, 14, 426,
and 442–4.

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The Proper Use of the Classical Sources 67

Qaradawi admits that the Qurʾan deals with issues of belief and worship
more than with legal topics, yet he argues that the Qurʾan does not neglect legal
topics and supplies a number of rules on matters of worship, family, and civic
and political organization. This divine legislation is obligatory for Muslims at
all times and in all places, because Allah knows best how to benefit them and
to bring about their success in this world and the next. The practical rules con-
tained in the Qurʾan are extremely important, Qaradawi argues, because they
differentiate the Muslims from members of other cultures and religions and
create the “Islamic personality,” which is distinguished by its values and char-
acteristics. Among the rules that constitute unique Islamic cultural character-
istics are the five Pillars of Islam, the ordering of good and prohibiting of evil,
Islamic propaganda, jihad, the ḥudūd and returning a deposit to its owner. Also
included are the prohibitions on interest, adultery, sexual deviations, female
adornment, murder, wine drinking, gambling, spending one’s money in vain
and spreading evil in the land. It is understood from Qaradawi’s argument that
he ascribes extreme importance to the practical rules of the Qurʾan, not only
because of their actual moral and social merits but also as symbols of Islamic
identity, which distinguish Muslims from members of other cultures. These
identity symbols are extremely important for defending Muslims against the
Western secular cultural onslaught, especially when Muslims reside as a mi-
nority in non-Muslim states.
According to Qaradawi, the Qurʾan does not include concrete rules on mat-
ters that are prone to change across time, space and circumstances, such as the
issues of governance and judicial procedures. Thus, as a constitution for gov-
ernance (dustūr al-ḥukm), the Qurʾan includes only the basic principles, e.g.
the duty of the ruler to consult knowledgeable people from the Islamic com-
munity about political and social issues (this principle is called shūra), judicial
justice and the preparation of a force for fighting the enemy. The specification
and application of these principles are left to human consideration, in light of
the basic principles.7 The Qurʾan however does sometimes specify on matters
that do not change considerably across time, place, custom and circumstances,
e.g. family law and the ḥudūd punishments.
The laws of the Qurʾan are lenient and aim to release the Muslim believers
from the burdens that Allah placed on their predecessors (mainly the Jews).
This leniency is reflected by the Qurʾan’s concern for states of emergency
and necessity, which results in lessening the burden of religious duties. The
Qurʾanic law is logical, reasoned, not arbitrary and directed towards realizing
the welfare of the believers (Q. 2:216), as is proven by the historical record: the

7 Qaradawi, ibid., 424.

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Qurʾan permits divorce, while in the West, [Catholic] Christians are forced to
desert their religion in order to obtain a divorce. The Qurʾan permits polygyny,
while in the West it is legally prohibited but is practiced in the form of im-
moral concubinage that does not provide the mistress with legal rights. The
Qurʾan prohibits interest, which Western economists regard as responsible for
all economic problems [sic!], as well as adultery and sexual deviations, which
have brought about AIDS, a disease that endangers the existence of humanity,
and, finally, alcohol and gambling, which are a source of grave problems in the
Western world.8
Because there exists a universal consensus that every single word of the
Qurʾan is divine, its authenticity is definitely undisputed ([the Qurʾan is] qaṭʿī
al-thubūt). There are only a few Qurʾanic verses that are clear-cut (these verses
are called muḥkamāt) and definite in their meaning (qaṭʿī al-dalāla), thereby
providing certainty about Allah’s specific intention. The majority of Qurʾanic
verses are prone to a number of interpretations (they are called mutashabbihāt)
and therefore are only probable (ẓannī) in terms of their meaning. What are
the tools needed for deciding which Qurʾanic text is definite and which is am-
biguous? Qaradawi distinguishes between two types of Qurʾan exegesis: one
that is informed by the sunna (al-tafsīr bi-l-ma‌ʾthūr or al-tafsīr bi-l-riwāya) and
another that draws on reason (al-tafsīr bi-l-ra‌ʾy or al-tafsīr bi-l-dirāya). The first
type, based on Prophetic reports, is problematic because some reports are
weak or fabricated. In addition, reports are often contradictory and a number
of reports represent the personal opinion of their authors, who were not im-
mune from error. Finally, the corpus of reports is not systematic, because it
does not interpret each Qurʾanic chapter and verse in an orderly sequence.9
Qaradawi specifies eight principles for a worthy interpretation of the Qurʾan:

1. A combined reliance on the sunna and on reason. Qaradawi argues that

this combination was the exegetic style of Muhammad b. Jarir al-Tabari
(d. 923).10 He distinguishes between the Qurʾanic term al-kitāb (the
Book), which represents the text of the Qurʾan, and the term al-mīzān
(the Scales), which appears a number of times in the Qurʾan close to al-
kitāb. According to Qaradawi, al-mīzān constitutes the moral values that
humanity inherited from the prophets, as well as the human scales pro-
vided by al-kitāb for knowing the truth by way of analogy and through the
derivation of detailed rules from general principles. In this way, divine

8 Ibid., 53–7.
9 Ibid., 206–7.
10 Ibid., 217–19.

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inspiration meets reason, religion meets knowledge, and each element

sheds light on the other.11
2. Interpretation of the Qurʾan by the Qurʾan (tafsīr al-Qurʾān bi-l-Qurʾān).
Qaradawi argues that the best Qurʾan exegetes, such as Ismaʿil b. Kathir
(d. 1373), asserted that anything mentioned by the Qurʾan in a general
or unlimited sense in one place is detailed or qualified by the Qurʾan in
another place. In addition, any matter that is ambiguous in one place in
the Qurʾan is clarified in another.12 It is worth noting that the exegeti-
cal principle of “interpretation of the Qurʾan by the Qurʾan” has been
used by Muslim Modernist thinkers (some of whom were affiliated with
the Ahl al-Qurʾan movement), such as Wali Allah and especially Fazlur
Rahman. The latter held that, instead of the traditional atomistic way of
interpreting the Qurʾan verse by verse, the exegete must identify broad
themes that are discussed in the Qurʾan in various places (e.g. the sta-
tus of women). Then, the exegete delineates the general attitude of the
Qurʾan towards this theme through an integrated analysis of the material
appearing in all these places. The principles of this general attitude of the
Qurʾan must be used to elucidate isolated verses that belong to the same
theme (this hermeneutical move by Fazlur Rahman is called “the double
movement”). It seems that Qaradawi uses this exegetical principle in a
much narrower sense than the above-mentioned Modernists do, because
he does not refer to extracting general principles from the Qurʾanic text
but only to the clarification of the meaning of ambiguous words or sen-
tences by clearer ones.13
3. Interpretation of the Qurʾan using the authentic sunna. Qaradawi accepts
Ibn Taymiyya’s perception of the centrality of the sunna, whose source is
divine, similar to the Qurʾan, the difference being that the Qurʾan was
recited to the Prophet by the angel Gabriel (hence, waḥy matlū, recited
divine inspiration), while the sunna was not (waḥy ghayr matlū).14 The

11 Ibid., 429–30.
12 As an example, Qaradawi refers to two ambiguous words that appear in the opening
chapter of the Qurʾan—al-ʿālamīn (the worlds) and anʿamta ʿalayhim (You bestowed fa-
vors on them)—which are clarified by other verses of the Qurʾan. See ibid., 220–3.
13 Qaradawi composed only one interpretation of a complete Qurʾanic chapter (Sura 13,
al-Raʿd). Although this chapter is relatively short (approximately 40 verses), Qaradawi
used more than a thousand verses from other chapters of the Qurʾan to interpret it.
14 A proof for the divine source of the sunna brought by Qaradawi is that the Prophetic re-
port “it is forbidden to make a last will and testament in favor of a legal heir” abrogates the
Qurʾanic recommendation to the believer, when his death approaches, to make a bequest
in favor of his relatives.

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sunna provides the historical contextualization of the Qurʾanic text (i.e.

reports from the genre of asbāb al-nuzūl, the circumstances in which a
Qurʾanic revelation “came down” from heaven to the Prophet, see more
below), as well as specifying general Qurʾanic orders.15
4. Interpretation of the Qurʾan using the interpretation of the companions
and the followers (tābiʿūn). Influenced again by Ibn Taymiyya, Qaradawi
claims that the interpretation of the Qurʾan by the companions and the
followers is the closest to the Prophet’s spirit, and that therefore their
consensus is certainly rooted in the sunna and must be followed. If the
companions differ, it indicates that their opinions on that matter are the
result of their individual ijtihād that is not immune from error; it is per-
mitted therefore to choose one of their opinions and even to create a
new one.16
5. Following the absolute meaning of the [Arabic] language (al-akhdh bi-
muṭlaq al-lugha). Qaradawi argues that the interpretation of a Qurʾanic
word or term must follow its meaning at the time in which the Qurʾan
was revealed, since there are many such terms that have changed their
original meaning over time. In addition, the exegete must consider the
specification and limitation given to Qurʾanic terms.17 Finally, the exegete
must understand a Qurʾanic word according to its aims.18
6. Considering the context in which words appear in the Qurʾan. Certain
Qurʾanic words, such as kitāb or āya, change their meaning according to
the context in which they are mentioned. Alternatively, there are different

15 E.g., the sunna contains detailed rules about the main ritual obligations, which the Qurʾan
mentions only in a general manner. In addition, the sunna determines specific rules of
inheritance that are not included in the Qurʾan, e.g. the ban on an infidel inheriting from
a Muslim. See Qaradawi, Qurʾan, 224–8.
16 Ibid., 229–31.
17 E.g., one of the aims of the zakat tax, according to the Qurʾan, is to serve “the cause of
Allah” (fī sabīl Allāh). This term must be understood according to the meaning ascribed to
it by the Prophet and the companions.
18 E.g., in the context of dealing with wine, the Qurʾan uses the term “stay away from it”
(ijtanibūhu). Some exegetes have argued that this term does not imply total prohibition,
unlike the term “it is forbidden for you” (ḥurima ʿalaykum). However, Qaradawi argues
that, if all the Qurʾanic appearances of the term ijtanibūhu are studied, the conclusion
is inevitable that it expresses absolute prohibition, because it relates to infidelity and to
other grave sins (such as adultery). Moreover, this term is stronger than “it is forbidden
for you,” because while the latter prohibits only the actual committing of a certain action,
“stay away from it” prohibits even approaching it. See Qaradawi, Qurʾan, 232–7.

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words that have the same meaning, e.g. furqān and dhikr as synonyms of
the word Qurʾan.19
7. Consideration of asbāb al-nuzūl. Only a small part of the legal material of
the Qurʾan “came down” as a response to a question posed by the Prophet
or in the context of a specific episode in which the Prophet was involved.
It is however impossible to understand the Qurʾanic legal material prop-
erly without knowing its context.20 That a verse has specific asbāb al-
nuzūl does not imply that the validity of the rule contained in this verse
is restricted to this event. Rather, if such a verse is formulated in a general
manner, the rule contained in it has general applicability.21 Overall, the
exegete must be certain that he connects verses to their true asbāb al-
nuzūl; also, he must be very cautious in using traditions belonging to this
genre, because the major part of these reports is not authentic.22
8. The Qurʾan must be treated as a guiding source and not as a guided one.
Thus, the exegete must not subordinate the text of the Qurʾan arbitrarily
to any juristic or philosophical school.23

Parallel to the eight principles for correct Qurʾan interpretation, Qaradawi

presents eight evils that the exegete must refrain from committing:

1. Specification of rules based on verses that are ambiguous (mutashabbihāt,

see above) while ignoring clear-cut verses or expressions (muḥkamāt).

19 Ibid., 238–47. Qaradawi’s last assertion implicitly challenges one of the basic claims
made by Shahrur, one of Qaradawi’s bitter enemies, namely that it is impossible that two
Qurʾanic words have the same meaning. See Christmann, “Shahrour,” 271.
20 E.g., Q 60:10–11 deals with marriage between Muslim men and the wives of the infidels.
One must understand these verses only in the context of the years that followed the
Hudaybiyya treaty between the Prophet and his Meccan enemies, concluded in 628.
Following the treaty, a number of Meccan married women deserted their husbands and
migrated to Medina to convert to Islam and join the Muslim community. This new situ-
ation created the question whether Muslim males in Medina were allowed to take these
women as wives.
21 E.g., Allah proclaimed the punishment for false accusation of adultery (qadhf) in the con-
text of a case that involved the Prophet’s beloved wife, ʿAʾisha (d. 678), but the applicabil-
ity of the punishment is general. In contrast, in Q 33:53, the instruction to the believers
that, when asking something from married women, they should do it from behind a cur-
tain (ḥijāb), was specific, according to Qaradawi, to the Prophet’s wives, and thus does not
have general applicability.
22 Qaradawi, Qurʾan, 249–55.
23 Ibid., 257–60.

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Qaradawi quotes Q 3:7 to the effect that verses categorized as muḥkamāt

are the “Mother of the Book” (umm al-kitāb) while the rest of the verses
are mutashabbihāt. Muḥkam is an expression whose language (lafẓ), more
precisely the semantic force of its language, as well as its meaning, are
not doubtful. The mutashabbih is difficult to interpret due to its similar-
ity to another expression in terms of its language or meaning, or in terms
of both (this division between muḥkamāt and mutashabbihāt applies
also to the hadith). Quoting the work of the Qurʾan exegete al-Raghib [al-
Isfahani] (d. 1108), Qaradawi concludes that since the muḥkamāt do not
need to be compared to other texts in order to be understood, they can
form the basis for comprehending the mutashabbihāt. Put differently, the
mutashabbihāt may be understood in light of the muḥkamāt (this is por-
trayed by the legal maxim: “to trace the probable back to the certain or
the ambiguous back to the clear-cut;” radd al-muḥtamalāt ilā-l-qawāṭiʿ
aw al-mutashabbihāt ilā-l-muḥkamāt). There exists “real comprehensive
ambiguity” (tashabbuh kullī ḥaqīqī), whose meaning is known solely to
Allah, and only deviant Muslims claim to understand; and “secondary
partial ambiguity” (tashabbuh juzʾī iḍāfī), which forms the major part of
the mutashabbihāt and which the knowledgeable scholars are able to un-
derstand by comparing it to the muḥkamāt.24
According to Qaradawi, the critical mistake committed by some
Muslims, who ignore the warnings of the Qurʾan and of the sunna, is to
neglect the muḥkamāt and act upon the mutashabbihāt. The scholars
are well aware that no ambiguous text may serve as a legal indicator. The
deviants who follow the mutashabbihāt seek either to create intellectual
strife within the community (e.g. the philosopher Ibn al-ʿArabi (d. 1240),
who based himself on ambiguous texts to claim that all religions are the
same) or to interpret the texts to suit their interests and whims. In the
current generation, these deviants are the proponents of Westernization,
who seek to free themselves from the legal restrictions placed on Muslims
by the muḥkamāt by permitting what is prohibited by the Qurʾan and
vice versa.25

24 Qaradawi, Qurʾan, 267–71.

25 Ibid., 271–5. Qaradawi provides two examples to support his accusation. The first is the
topic of interest, where the “Westerners” quote Q 3:130 as evidence that the Qurʾan pro-
hibits only the corrupt usury which was practiced by the Arab merchants prior to Islam,
and not the balanced interest that is practiced by modern banks. Qaradawi rejects this
claim altogether, based on the comprehensive study of the Azhari scholar Muhammad
Darraz (d. 1958). See Qaradawi, ibid., 277–80 and idem, al-Ijtihad fi al-shariʿa, 159–61. The

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2. Wrong metaphorical interpretation (sūʾ al-ta‌ʾwīl). The use of metaphori-

cal interpretation (ta‌ʾwīl) without the support of direct or circumstantial
evidence requiring such use is a mistake, because the scholars of Islamic
legal theories presumed that every text must be interpreted according to
its plain meaning, unless there is an indication that metaphorical expla-
nation is needed.26
3. Supporting a certain position with an irrelevant Qurʾanic text. As ex-
amples, Qaradawi brings the Modernist claim that proper understanding
of the “polygyny verses” (Q 4:3 and 129) must conclude that the Qurʾan

second example refers to the Qurʾanic term “stay away from it” (ijtanibūhu) as equivalent
to a prohibition. See Qaradawi, Qurʾan, 280–1 and n. 18 above. It is worth mentioning that
with regard to ribā, Qaradawi differs with Rida, who, following Ibn al-Qayyim, argued that
since the Qurʾanic prohibition on ribā was meant to avoid the ruinous forms of usury, it
might be reversed if serving the common good so requires. See Zaman, Modern Islamic
Thought, 121–2.
26 Qaradawi, Qurʾan, 284–7. As an example for the wrong use of metaphorical interpreta-
tion, Qaradawi indulges in a long discussion (ibid., 310–2) of what he considers a wrong
interpretation of the ḥudūd verses. According to this Modernist interpretation, the mean-
ing of the phrase (Q 5:38) “cut off (aqṭaʿū) their [the thieves’] hands” and of the phrase
(Q 24:2) “lash (ijlidū) each one of them [the adulterers] with a hundred lashes” is of per-
mission rather than an obligation. This is in analogy to Q 7:31 (“O Children of Adam! Look
to your adornment at every place of worship, and eat and drink, but be not prodigal”),
where “eat and drink,” although in the order form, must be understood as a permission
rather than as an obligation. According to this analogy, the penalties of amputation or
one hundred lashes are the severest penalties for theft and adultery, but the ruler may
apply less severe penalties, according to the circumstances of time and place.
 Qaradawi rejects this analogy, citing the Azhari scholar Muhammad Husayn al-­
Dhahabi (d. 1977, author of al-Tafsir wa-l-mufassirun). He argues that the obligatory na-
ture of the ḥudūd punishments is epistemologically certain (amr qaṭʿī), because such an
understanding of the Qurʾanic text is supported by the sunna and by the consensus of the
entire Islamic community. Thus, the ḥudūd have become “known from religion by neces-
sity.” Qaradawi adds that the last parts of Q 5:38 (“It is the reward of their own deeds,
an exemplary punishment from Allah”) and of Q 24:2 (“and do not be taken by pity for
them in the religion of Allah”) support the obligatory nature of the order form in the first
part of these two verses. Moreover, the Prophet was reported as saying that if his beloved
daughter Fatima committed theft, he would have cut off her hand.
 Finally, Qaradawi (citing al-Shatibi’s Muwaffaqat 1:130 ff.) argues that, unlike Q 5:38
and 24:2, “look to your adornment” and “eat and drink” in Q 7:31 mean at the same time
an “obligation in the general manner” (wājib bi-l-kull) and “partial permission” (mubāḥ bi-
l-juzʾ). This means that, generally, the believer must not refrain from dressing, eating and
drinking, although he may abstain from them on certain occasions (undressing when in
bed and fasting in Ramadan).

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prohibits polygyny (for an extensive discussion of this topic, see Ch.

Five). A second wrong claim is that the Qurʾan prohibits the democratic
multi-party system, because it distinguishes only between “the party of
Allah” and “the party of Satan” and because it states that the majority may
be wrong.27
4. An unfounded claim of abrogation (naskh). Qaradawi presents a middle
position between those who apply abrogation too hastily and those who
reject the principle of abrogation altogether.28 He claims that the first
four generations of Muslims used the term naskh in a much larger sense
than the latter ones, i.e. not only for the total abrogation of a legal rule,
but also for the specification or restriction (takhṣīṣ and taqyīd) of the
meaning of a certain verse by another one. Qaradawi adds that the lexi-
cal meanings of expressions have changed over time, obliging Muslims
to ignore their later meanings and to stick to their meanings at the time
Muhammad received the Qurʾan.29
5. Ignorance with respect to reports from the Prophet and from the com-
panions. Qaradawi strongly criticizes contemporary Muslim intellectuals
who ignore the sunna as a source for explaining the Qurʾan and interpret
the latter to suit their own interests.30 He emphasizes that today, Muslims
still need the guidance of the Prophet and of the companions, and that
the modern exegete must follow their general interpretive attitude, their
understanding of the aims of the Qurʾanic text and the ways they connect
particular texts to general ones.31 Parallel to his opposition to those who
do not respect the sunna as a reference for Qurʾan exegesis, Qaradawi

27 As for the last claim, Qaradawi clarifies that the Qurʾanic argument that the majority is
wrong refers only to the pre-Islamic society of Mecca. See Qaradawi, Qurʾan, 318–24.
28 According to Qaradawi, a proper use of abrogation relates to the gradual development of
the duty of fasting within the Qurʾan. In contrast, an improper application of abrogation
is the claim that Q 9:5 and 36 (“And when the sacred months have passed, then kill the
polytheists wherever you find them …”) abrogate dozens of other Qurʾanic verses that
preach tolerance and the propagation of Islam in peaceful ways. Qaradawi claims that
these verses were specific to the pagan Meccan enemies of the Prophet and therefore
must not dictate a general Qurʾanic rule. See Qaradawi, Qurʾan, 326–30.
29 Ibid., 333–6.
30 For example, Qaradawi (Qurʾan, 335–44) argues that the Modernist claim that the severity
of the ḥadd punishment on theft was meant to deter thieves of camels (since the latter
was an essential source of livelihood for the Arab nomads) is disproved by the fact that
the sunna hardly mentions any episodes of camel theft.
31 Ibid., 350–2.

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condemns those who interpret the Qurʾan in light of fabricated and weak
traditions.32
6. Interpreting the Qurʾan in light of untrusted reports, taken from Jewish
and Christian sources (Isrāʾīliyyāt).33
7. Straying from the consensus of the community. Qaradawi argues that one
of the most dangerous mishaps suffered by the Islamic community at
present is the disregard by some of its members of the consensual Islamic
tradition of Qurʾanic exegesis and the desire to start this exegesis from
scratch. The consensus to which Qaradawi refers here is not only the ju-
ristic one (ijmāʿ uṣūlī), the existence of which is controversial, but mainly
a much deeper one, representing the intellectual, mental, dogmatic and
behavioral orientation of the community (ittijāh al-umma al-ʿaqlī wa-l-
nafsī, al-iʿtiqādī wa-l-sulūkī). This orientation has passed across genera-
tions and has become part of the intellectual and emotional entity of the
community (kiyān al-umma al-fikrī wa-l-shuʿūrī) and therefore deviation
from this orientation is forbidden. That a legal rule, consensual among
all the law-schools, established itself as part of legal practice (ʿamal) ren-
ders the consensus on the rule epistemologically certain. In other words,
consensual topics of such magnitude are proven as fixed and clear-cut
(thawābit qatʿiyya) and have the capacity to transform Muslims into one
community.34
Qaradawi stresses that although the renewal of ijtihād is essential and
welcome today, no Muslim is permitted to undermine categorically the
Islamic way of thinking and the Islamic conscience that have crystallized
over the course of fourteen centuries. For Qaradawi, a negative example
for such general undermining is the Syrian intellectual and Qurʾan ex-
egete Shahrur, who explicitly stated that the understanding of the Qurʾan
by the companions is not of interest to him. Shahrur’s call for a new

32 Qaradawi accepts al-Albani’s position that it is prohibited to use weak reports, not only in
legal works but also in any work of religious character; see Brown, “Unreliable Hadiths,”
44–5.
33 Qaradawi, Qurʾan, 345–9.
34 Ibid., 350–2. As examples for such certain and fixed rules, Qaradawi brings the permission
for a Muslim male to marry a wife from the People of the Book (ahl al-kitāb, e.g. a Jewish
or a Christian wife), while a male from the People of the Book is forbidden from marry-
ing a Muslim wife. A second example is that the Qurʾanic term “infidels” (kuffār) refers to
both the pagans and the People of the Book. See Qaradawi, al-Ijtihad fi al-shariʿa, 148–9.
Rida had a similar idea regarding the hadith. He held that only “practical sunna” (sunna
ʿamaliyya), i.e. practices (mainly ritual) that were transferred across generations and kept
continuously, was legally binding; see Brown, Rethinking tradition, 41.

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reading of the Qurʾan and of the sunna is actually a call to replace Islam,
because such a call does not pay any attention to Islamic traditional
scholarship. The result of this call will be a creation of a new law, differ-
ent from the Prophet’s law, which has been passed from generation to
generation through a multi-channeled transmission that is epistemologi-
cally certain (tawātur yaqīnī). If Shahrur’s position is accepted, there will
be different Islams for different communities across time and place. If
granted, Shahrur’s total neglect of the Islamic intellectual heritage, which
he defines as a “dead tradition,” will bring about a situation in which the
Qurʾan will no longer be able to serve as a source of authority in times of
controversy, as the Qurʾan itself demands. This is because each Muslim
will have his own individual interpretation of the Qurʾan. To prevent this
danger, Muslims must follow the sunna of the Righteous Caliphs, who,
albeit not always correct, had a unique general understanding of Islam
and of the actions needed to promote it.35
8. The weak formation of knowledge. Qaradawi claims that a few Muslims
who pretend to be Qurʾan exegetes possess weak knowledge of the Arabic
language and of Islamic law, which leads them to follow certain opinions
without understanding.36

The Sunna

Intellectual engagement with the sunna in the modern period is important

because the sunna serves as a universal factor of legitimization. The debate
about Prophetic authority and the legal significance of the hadith is not neces-
sarily a conflict between tradition and modernity and/or between revelation
and reason. Rather, it is a contest among various Islamic trends (e.g. orthodox
ʿulama‌ʾ, Ahl al-Hadith and Ahl al-Qurʾan) over the authority to speak in the
name of the Prophet and to serve as the guardian of tradition.37
According to Brown’s categorization (see the Introduction), Qaradawi
is a Late Sunni Traditionalist.38 Indeed, in principle, Qaradawi supports the

35 Qaradawi, Qurʾan, 353–9.

36 Ibid., 361–6.
37 Brown, Rethinking tradition, 80, 133, 138–9.
38 Cf. Brown (ibid., Ch. 6, especially 110–12, 134, 141), who categorizes Muhammad Ghazali
and Qaradawi as Islamic revivalists. Brown argues that this trend remains obliged to the
Prophetic authority without being strictly tied to the classical corpus of the hadith. Put
differently, this trend seeks to secure the hadith’s authenticity without abandoning the

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c­ anonical hadith corpus. He defends it from accusations of being contradicto-

ry to clear Qurʾanic injunctions39 and holds that the rigorous classical science
of hadith criticism made it possible for the experts of this science to identify
reports supported by a superbly fabricated chain of transmitters (isnād), and
consequently to reject them.40 Qaradawi composed two works on the hadith.
The first, a long article titled “The legislative aspect of the sunna” (al-Janib al-
tashriʿi fi al-sunna), was published in 1988, and the second, a monograph titled
“How do we deal with the Prophetic sunna” (Kayfa nataʿamal maʿa al-sunna al-
nabawiyya), was published a year later.41 Qaradawi has however been sincere
and brave enough to admit that he is not one of the great hadith scholars of his
age. He declares that he relies on the works of the early hadith experts, whose
strict critical method he favors, as well as on the works of modern hadith schol-
ars, such as al-Shawkani, the Egyptian Hadith expert and jurist Ahmad Shakir
(d. 1958)42 and al-Albani, the leader of the Neo-Ahl al-Ḥadith movement.43
Defending himself from accusations by Albani that he relied on weak had-
iths in his book “The permitted and prohibited in Islam” (al-Halal wa-l-haram
fi al-Islam), Qaradawi admits that he is a follower (muqallid) of the classical
hadith experts. He claims that he included in his work only reports that the
canonical compilations of hadith had categorized as “sound” (ṣaḥīḥ) or “good”
(ḥasan). There is no wrong in a jurist relying on the expertise of hadith experts,
Qaradawi argues, because no jurist can possess all the knowledge required for
conducting ijtihād. Paying respect to al-Albani as one of the prominent had-
ith scholars of the modern age, he notes that newly discovered evidence on
the biographies of the early generations of hadith reporters enables scholars
such as al-Albani to challenge the conclusions arrived at by the great medieval
compilers of hadith. However, even al-Albani changed his own views about the

flexibility to adapt Islamic law to current needs. In terms of their attitude towards the
hadith, Brown places the revivalists between Neo-Ahl al-Hadith and Ahl al-Qurʾan.
39 Qaradawi, “Difaʿ ʿan sahih al-Bukhari,” 90–105, in which he defends al-Bukhari’s Sahih.
40 Qaradawi, “al-Mujtariʾun ʿala-l-hadith,” 26–35.
41 Notice that Muhammad al-Ghazali’s book on the sunna appeared in the same year and
drew most heated positive and negative reactions. According to Khatib (Qaradawi,
219, 161–2), the International Institute of Islamic Thought in Herndon, Virginia, asked
Qaradawi to write his monograph on the hadith to calm the storm created by al-Ghazali’s
book. The impact of al-Ghazali’s work on Qaradawi is noted by Brown (Rethinking tradi-
tion, 108, 119–20), who holds however that Qaradawi is more cautious than al-Ghazali in
allowing hadith criticism based on the Qurʾan.
42 On his juristic thought, see Shaham, “Shakir.”
43 Qaradawi, Sunna, 43–4. On al-Albani, see Shaham, “Rhetoric,” and the sources mentioned
there in n. 9.

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credibility of a number of reports after discovering new evidence. Moreover,

a number of other modern hadith experts often disagree with al-Albani’s
conclusions.44
Qaradawi emphasizes the dire need to connect the studies of fiqh and had-
ith, because, on the one hand, fiqh experts do not know enough about the had-
ith, which often causes them to rely on rejected reports or to ignore authentic
ones. On the other hand, hadith experts do not pay sufficient attention to the
content of the reports, because they are not interested in the fiqh and in legal
theory, without which conducting proper ijtihād is impossible.45 Accepting the
claim of Neo-Ahl al-Hadith, Qaradawi admits that because medieval jurists
were not proficient enough in the science of hadith, there is a current need
to review the fiqh literature and to point out those legal rules based on weak
reports.46 The reviewers must consult the entire gamut of hadith sciences, i.e.
not only the six canonical collections of hadith from the 9th century but also
later hadith works.47

44 Qaradawi, “Hawl ahadith kitab al-halal wa-l-haram,” 104–16. The other modern hadith ex-
perts that Qaradawi mentions are the Indian Habib al-Rahman al-Aʿzami (d. 1995) and
the Syrians Shuʿayb al-Arnawut and ʿAbd al-Fattah Abu Ghudda (d. 1997). Al-Ghazali also
defended himself from attacks by al-Albani on similar grounds; see al-Ghazali, Sunna, 128.
45 Before Qaradawi, Wali Allah expressed the idea of combining the efforts of hadith ex-
perts and jurists (Brown, Rethinking tradition, 24). He may have influenced Muhammad
al-Ghazali (Sunna, 19–21, 32, 135, and 202), who argues strongly in favor of integrating the
work of fiqh and hadith experts and the superiority of the former (the “engineers”) to the
latter (the “builders”). See also Brown, Rethinking tradition, 112–13 and 116–17. The supe-
riority that jurists (calling themselves “physicians”) felt towards hadith experts (called
“pharmacists” by the jurists) goes back to the pre-modern period; see Abou El Fadl,
Speaking, 49. It is worth mentioning that Qaradawi—in his work “The selected [reports]
on the incitement [to do good] and the intimidation [from sinning]” (al-Muntaqa min-l-
targhib wa-l-tarhib), based on an earlier work by ʿAbd al-ʿAzim al-Mundhiri (d. 1258)—
inspected, in addition to the chains of transmission of the relevant hadiths, the contents
of the reports. His aim was to find whether these hadiths were in line with the general
principles of Islam, its certain legal rules and definite logical and scientific truths; see
Khatib, Qaradawi, 168–9.
46 As an example, Qaradawi presents the question: Should the amount of blood money
(diya) paid for a non-Muslim be equal to that paid for a Muslim or less than that (some
scholars held it should be a third or a half)? He argues that all the juristic opinions regard-
ing this question, including that of Abu Hanifa (who held an egalitarian position), are
based on less than authentic reports. See Qaradawi, Sunna, 69–76.
47 Such as those of ʿAbd al-Razzaq al-Sanʿani (d. 827), the Hanafi scholar Abu Jaʿfar al-Tahawi
(d. 933), the Shafiʿi Ahmad b. al-Husayn al-Bayhaqi (d. 1066), Ibn Daqiq al-ʿId (d. 1302), Ibn

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The Proper Use of the Classical Sources 79

Qaradawi presents eight principles for correct understanding of the hadith,

similarly to what he does with regard to the Qurʾan (see above).48 Among these
principles is that the scholar must consider the lexical meanings of the Arabic
language and the report’s context and the circumstances in which the Prophet
said it, because some reports were meant to solve temporary and local prob-
lems and thus become irrelevant if their underlying cause no longer exists.49
In addition, the scholar who uses a certain report must study other relevant
Qurʾanic or hadith texts and evaluate the import of the report in light of the
general principles and intentions of the shariʿa.50 This statement by Qaradawi
clarifies that he subordinates the use of the hadith as a legal source to superior
criteria, such as the general principles of the shariʿa and the general purposes
of Islam, criteria that are prone to various interpretations. Moreover, it is neces-
sary that the scholar make a distinction between that part of the sunna whose
purpose is to deliver the faith (tablīgh al-risāla) and the other part that the
Prophet did not designate for this purpose. In other words, the scholar must
not confuse between the legislative part of the sunna (mā kāna min al-sunna
tashrīʿan) and other parts and, within the legislative part, between the part that
is general and permanent and the part that is specific and temporary.51 This
confusion between the different parts of the sunna has been the main source
of the deficiencies in understanding it correctly.52

Taymiyya, Ibn al-Qayyim, Ibn Hajar al-ʿAsqalani (d. 1448), and al-Shawkani. See Qaradawi,
al-Ijtihad fi al-shariʿa, 139–43, 180; al-Asala wa-l-tajdid, 35–6.
48 Qaradawi, Sunna, 113–200. According to Brown (Rethinking tradition, 125–6), among reviv-
alist scholars, Qaradawi’s is the most thorough exposition of the ways to use the hadith for
legal purposes.
49 On the consideration of the context of the report by pre-modern jurists, see Brown,
Rethinking tradition, 19.
50 According to Brown, this position was held by Rida (Rethinking tradition, 115) and is char-
acteristic of the Islamic revivalist trend (ibid., 116).
51 As an example for this confusion, Qaradawi presents the debate between those jurists
who argue that Muslims must eat with their hands while sitting on the ground, following
the Prophet’s example, and others who argued that dining practices may change with
time. Qaradawi holds that the first group is wrong in viewing the Prophet’s personal man-
ners as binding in itself; the second group is wrong, too, in arguing that there is noth-
ing binding in dining practices, because the Prophet is reported as ordering the use of
the right hand for eating. Indeed, this Prophetic order is binding, because this dining
manner is an Islamic identity mark, which differentiates Muslims from non-Muslims. See
Qaradawi, “al-Janib al-tashriʿi,” 29–31.
52 Qaradawi, Sunna, 44–5, where he adds that stronger legal indicators supersede the import
of a solitary report. In another place (ibid., 76) he explains that if the topic discussed is of

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It seems that Qaradawi’s main concern is to sort out this confusion between
the legal and non-legal parts of the sunna. He admits that distinguishing
between these two parts is a complicated topic that has challenged Muslim
scholars for centuries.53 Qaradawi holds that jurists must deal with this issue
in a balanced way and in light of the clear Qurʾanic and hadith texts, the aims
and principles of the shariʿa and the understanding of the Salaf.54 As expected
from his Centrist inclination, Qaradawi’s position is located between the one
holding that all the material included in the sunna is of legislative nature and
that holding that the entire corpus of the sunna is devoid of any legal signifi-
cance. Qaradawi reviews the historical sequence of prominent scholars who
contributed to the research on this topic, starting with medieval ones, such
as (ʿAbd Allah b. Muslim) Ibn Qutayba (d. 889), the Maliki al-Qarafi and the
Hanbali Ibn al-Qayyim, and ending in modern ones, e.g., Wali Allah, Rida, Ibn
ʿAshur and Shaltut.55
According to Qaradawi, Shaltut, using the work of his predecessors, has
elaborated a good categorization.56 After specifying three categories of reports
that are not legislative,57 Shaltut divided the legal material in the sunna into
three sub-categories:

1. All the material that the Prophet, in his capacity as the messenger of
Allah, delivered to his believers as law (tablīgh)—i.e. his interpretations
of the Qurʾan and his explanations of the general and the specific in it, as
well as his instructions on worship-related issues and morality—forms
an eternal general legislation.

grave social importance, a solitary report is insufficient as the basis for a legal ruling and
that a number of reports are required for this purpose.
53 According to Brown (Rethinking tradition, 18, 62), the majority of Islamic theologians, in-
cluding Ibn Qutayba, supported this division. For the modern debate on this topic, see
ibid., Ch. 4.
54 Qaradawi, “al-Janib al-tashriʿi,” 17–25.
55 Ibid., 33–61.
56 On Shaltut’s juristic methodology, see Zebiri, Shaltut, 82–8, 95–103 (pp. 83–4 deal with his
attitude towards the hadith).
57 The first category is issues connected to human needs, such as food and drink, sleep and
walking; conflict resolution among individuals through customary channels and bargain-
ing in commercial transactions. The second category consists of issues conducted accord-
ing to experience and social practice, such as agriculture, medicine and styles of dressing.
The third category includes issues prone to human regulation according to specific cir-
cumstances, such as military tactics.

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The Proper Use of the Classical Sources 81

2. Everything that the Prophet said or did as the Muslim community’s

leader (imām)—sending the army to war, regulation of the state treasury,
nomination of governors and judges, division of spoils of war and conclu-
sion of political treaties—is not general legislation. These issues belong
to the realm of “governance according to the shariʿa” (siyāsa sharʿiyya)
and therefore the rules pertaining to them depend on the authorization
of the ruler according to the circumstances of every time and place.
3. Everything that the Prophet said or did in his capacity as a judge in the
context of a particular case—this defines the topic as one that requires
judicial intervention for confirming individual rights, i.e. the individual
Muslim needs to materialize his rights by appealing to a court of law.58

Stating that Shaltut’s categorization is very helpful, Qaradawi applied it in his

own work on the rules of zakat. This categorization contributes inter alia to a
lesser use of abrogation as a solution for contradictory Prophetic reports. Such
a contradiction is, in Qaradawi’s eyes, often imaginary, because the Prophet
may have delivered each of the presumably contradictory reports in a different
capacity. However, the use of Shaltut’s categorization does not necessarily lead
to uniform results, because the scholars differ as to its application.59 Qaradawi
suggests paying attention to the circumstances in which the Prophet delivered
a speech or a saying. For example, that the Prophet asked the companions to
circulate one of his sayings among the believers and encouraged them to act
upon it is indicative that the Prophet intended it as a rule of general applica-
tion (e.g. “It is forbidden to make a last will and testament in favor of a legal
heir;” lā waṣiyya li-wārith). Since Allah sent the Prophet to legislate, Qaradawi
suggests accepting, as a legal presumption, that in any matter of general inter-
est, the jurist must regard the Prophet’s saying as legislation, unless there is
circumstantial evidence for the opposite.60

58 Qaradawi, “al-Janib al-tashriʿi,” 51–3, 102–4.

59 Ibid., 73–9. Qaradawi provides (ibid., 53–5) a number of examples for disputes regard-
ing the application of Shaltut’s categorization. One concerns the Prophetic report that
a person who cultivates “dead land” becomes eventually its owner. Malik, Shafiʿi and Ibn
Hanbal held that the Prophet had said this in his capacity as the Messenger of Allah, and
therefore it creates a general rule that bestows automatic ownership on the cultivator.
Alternatively, Abu Hanifa held that the Prophet had said this in his capacity as a political
leader, and therefore the cultivator becomes an owner only after securing the approval of
state authorities.
60 For example, when the Prophet decided that a bequest is limited to one third of the testa-
tor’s property, he did it in the context of an individual case involving the companion Saʿd

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82 Chapter 3

In conclusion, it seems that Qaradawi hardly innovates in the theoretical

field related to modern hadith studies. He mainly summarizes the work of
his predecessors and contemporaries, from which he highlights in particular
Shaltut’s division of the sunna’s legal material into three categories.

Analogy

Qaradawi admits that analogy is an important source of jurisprudence for

adapting the law to changing circumstances. Earlier, we saw that according to
Qaradawi, Qurʾanic law is logical and reasoned. This implies that the result of
a correct analogy, based on the Qurʾan, must be logical too.61 Indeed, he claims
that analogy must be based on a Qurʾanic text or on an authentic hadith (a
scholarly opinion may not serve as a basis for analogy) whose ratio legis is clear.
In addition, the original case and the new case that requires legal solution
must be identical. Any analogy that does not meet these requirements is void.62

Consensus

Similarly to Ibn Taymiyya and Rida, Qaradawi emphasizes the need to rely
on the consensus of the two first Islamic generations, especially that of the
companions.63 In Qaradawi’s eyes, the scope of the consensual topics with-
in the fiqh is meager. Like Ibn Taymiyya, he states explicitly that most juris-
tic questions are in dispute, including those that many scholars claim to be

b. Abi Waqqas (d. 674). However, because this topic is of general concern, this Prophetic
decision constitutes a general rule. See Qaradawi, “al-Janib al-tashriʿi,” 60–1.
61 Ibn Taymiyya argued that correct analogy could not contradict revelation. See Rapoport,
“Ibn Taymiyya,” 194–7.
62 Qaradawi, al-Ijtihad fi al-shariʿa, 151–2. As an example for a wrong analogy, he presents a
modern opinion that the state may borrow money from its citizens, based on the analogy
between the relationship father-son (presented by the maxim “there is no ribā between a
father and his son”) and the relationship state-citizen. Qaradawi holds that this analogy
is wrong, because the above-mentioned maxim is not a proper original case, based on a
divine or divinely inspired text, but a juristic opinion. In addition, even if, for the sake of
discussion, we accept this text as divine, the analogy between the father and the state is
wrong, because while there is a text saying, “every Muslim, including everything he owns,
belongs to his father;” there is no such text referring to the state.
63 Ibn Taymiyya spoke about the binding authority of the consensus of the three first gen-
erations; see Rapoport, “Ibn Taymiyya,” 205–6.

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The Proper Use of the Classical Sources 83

consensual.64 This minimalist perception of consensus enables Qaradawi to

diverge from influential early juristic positions.65 Zaman finds a tension in
Qaradawi’s juristic thought between his minimalist definition of consensus
and his deep attachment to Islamic juristic tradition. He adds that modern
ʿulama‌ʾ, including Qaradawi, have succeeded in narrowing the scope of con-
sensus theoretically more than they have succeeded in limiting the incidence
of legal rules that pre-modern jurists had accepted based on consensus. He
provides as an example the 1920s’ attack by jurists (headed by the reformist
Rida) on the innovative ideas of the Egyptian Azhari ʿAli ʿAbd al-Raziq (d. 1966)
about the caliphate, an institution whose authority rested on consensus.66
While the tension that Zaman refers to certainly exists, it seems that Qaradawi
succeeds in minimizing it by regarding texts from the Qurʾan and the authentic
hadith that are definite in terms of their trustworthiness and meaning as the
almost exclusive source for binding rules. This is not the case with the particu-
lars of the caliphate as a political institution.
The only type of consensus that is highly appreciated by Qaradawi and that
he regards as binding on the community has been consolidated across history
in cases in which the scholarly consensus (ijmāʿ fiqhī) and the public consen-
sus represented by the long-term continuity of a given practice (ijmāʿ ʿamalī)
have merged. Epistemologically, the practical public consensus upgrades the
learned consensus and raises it to the level of undisputed textual proof (naṣṣ
qaṭʿī). Legal rules supported by this kind of consensus constitute the “constants
of the community” (thawābit al-umma, e.g. the permission for polygyny and
the inheritance rules) and therefore have become part and parcel of the legal
and moral compass of the Islamic community and one of its identity marks,
which distinguish it from non-Muslim communities. As such, the symbolic and
cultural value of such legal rules are as important (if not more) as their legal
and social significance, and the Islamic community must not change them.67
Similarly to Rida, Qaradawi, in spite of his minimalist rendering of consen-
sus, seeks to institutionalize modern consensus. In Qaradawi’s case, this is done

64 Qaradawi, al-Ijtihad al-muʿasir, 24; idem, al-Ijtihad fi al-shariʿa, 116. On Ibn Taymiyya’s po-
sition, see Rapoport, “Ibn Taymiyya,” 205.
65 As an example, Zaman (Modern Islamic thought, 72) brings Qaradawi’s challenging of the
widely accepted juristic position that an offensive jihad, i.e. the jihad of choice (unlike the
defensive jihad, which is a personal obligation for each Muslim), is a communal obliga-
tion (farḍ kifāya). According to Qaradawi, the jihad of choice has been always a disputed
juristic topic, and therefore it does not constitute a communal obligation at all.
66 Ibid., 69–70.
67 Cf. ibid., 66.

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84 Chapter 3

in the framework of an international body of top-level jurists, representing

all law-schools (including non-Sunni ones) and all Islamic territories, whose
majority opinion is binding on the entire Islamic community.68 It is evident
that Qaradawi does not compete in the multi-voiced religious-legal discourse
necessarily by highlighting his individual opinions. Rather, he takes part in
existing juristic organs (e.g. the Muslim World League and the Islamic Fiqh
Academy) or he establishes new ones and chairs them (the European Council
for Fatwa and Research in 1997 and the International Association of Muslim
Scholars in 2004).69 The International Association of Muslim Scholars, by ac-
cepting Qaradawi’s Centrist opinions, strengthens his juristic international po-
sition and helps him to label his Salafi opponents as unworthy. These juristic
organs seek to promote consensus on Qaradawi’s legal opinions by spreading
the latter among large Islamic audiences.70

Conclusion

Qaradawi’s understanding of ijtihād is clearly influenced by that of Rida. Like

Rida, who positioned himself between the conservative ʿulama‌ʾ of al-Azhar
and the secularists, Qaradawi places himself between the Neo-Ahl al-Hadith
and Muslim Western-oriented intellectuals. Both Rida (in the later part of his
career) and Qaradawi view Western-oriented intellectuals as the worst danger
for Islam. While Rida did not detail his ideas in comprehensive works and the
majority of his teachings is spread among the many volumes of the journal
al-Manar, Qaradawi is an industrious writer who has compiled dozens of ex-
tensive works. These works are a synthesis of the teachings of numerous schol-
ars who influenced him, both pre-modern and modern, chief among whom is
Rida. A number of characteristics of Qaradawi’s juristic system draw on Rida’s
work. These include the vision of the Qurʾan, the authentic hadith and the

68 In Zaman’s words (ibid., 67), Qaradawi “aspires … to base an intra-Muslim unity on a min-
imalist consensus.” Zaman (ibid., 69) emphasizes the tension running through Qaradawi’s
juristic thought between his minimalist definition of consensus and his praise of the di-
versity of opinions that characterizes Islamic law, on the one hand, and the need he feels
to shape a communal consensus, on the other.
69 Cf. Zaman, ibid., 95–6. The Association’s constitution states that it is open not only for
professional jurists but also for “those concerned, in palpable and productive ways, with
the shariʿa sciences and with Islamic culture.” According to Zaman (ibid., 152), “it reflects a
recognition that the boundaries between the ʿulama‌ʾ, many Islamists, and other religious
intellectuals have been increasingly blurred.”
70 Krämer, “Boundaries,” 189–91.

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The Proper Use of the Classical Sources 85

consensus of the companions as the basis of modern ijtihād and the claim that
the Qurʾan includes only general principles in the field of human transactions
and therefore the details of such transactions are open for ijtihād, based on rea-
son and social needs. In addition, the hadith is not immune from error in the
field of human transactions. Another position in which Qaradawi follows Rida
is that modern reformers must use the corpus of the fiqh as the intellectual
basis for ijtihād and for state codification, without strict adherence to the rules
of a particular law-school. The idea of codifying the fiqh, which was innovative
at the time of ʿAbduh and Rida, is obvious for Qaradawi, who, approximately
half a century later, views it as one of the means for reviving the fiqh.71 In addi-
tion, Qaradawi accepts Rida’s notion that Islamic law is lenient and therefore
the jurist must presume that any act in the field of human transactions is per-
mitted, unless proved to be prohibited by a certain textual indicator.72 Finally,
he relies on Rida’s innovation regarding the institutionalized collective con-
sensus that supersedes the informal and individual traditional one. However,
while Rida’s institutionalized collective consensus is supposed to operate in
the framework of the nation-state, the consensus that Qaradawi preaches is
global and reflects his desire to establish a universal Islamic religious and ju-
ristic authority.
Qaradawi partakes in the Modern Salafi belief of ʿAbduh and Rida that the
Qurʾan is superior to the sunna as a legal source.73 In addition, he follows Rida
in arguing that a text from the Qurʾan and the authentic hadith, the meaning
of which is consensual, is epistemologically certain. Thus, such a text forms the
highest standard of evidence and a legal rule based on it may not be ignored,
except in highly exceptional circumstances. Like Rida, Qaradawi calls for the
positivization of Qurʾanic moral prohibitions by way of state legislation. Like
Rida, he does not value analogy highly as a legal source, probably because he
believes that traditional jurists exhausted the use of analogy and that the latter
does not have a lot of potential for enabling Islamic law to adapt itself to the

71 Cf. Zaman (ʿUlama‌ʾ, 99), who argues that the majority of modern jurists (except for the
Saudi ones) do not see codification as a threat to their authority. They merely demand
that they control the process of codification as experts. This pragmatic attitude of mod-
ern jurists to codification differs from Hallaq’s highly critical observation (“Can the shariʿa
be restored?” 25) that “what little that has been preserved of the shariʿa in modern codes
has been so flagrantly manipulated that it lost its organic connection with both tradi-
tional law and society.”
72 This legal presumption was an independent idea of Ibn Taymiyya, see Rapoport, “Ibn
Taymiyya,” 219.
73 According to Brown (Rethinking tradition, 116, 120–2), the presentation of this idea by
al-Ghazali and Qaradawi is milder and more cautious than its presentation by Rida.

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needs of modern times. Anyhow, Qaradawi permits the reliance on classical

fiqh rules derived by analogies—including rules that the law-schools regarded
as minority or exceptional—in cases in which the modern jurist finds these
rules responsive to current needs. Unlike Rida, who claimed that the last bind-
ing consensus is that of the companions, Qaradawi argues that the majority of
Qurʾan and hadith texts are prone to diverse understandings and that conse-
quently the majority of topics discussed within the fiqh are not consensual and
thus open for reinterpretation. Qaradawi develops Rida’s idea of the binding
institutional collective consensus by arguing that the concurrence between
the consensus of the leading jurists of a certain age and the practical consen-
sus of society renders such consensual rule or practice a certain text. Modern
jurists therefore must not deviate from such a rule or practice, because it sym-
bolizes the collective conscience of the Muslim community and thus serves as
its identity mark.
Unlike Rida, the co-author of Tafsir al-Manar, Qaradawi has not been a sys-
tematic Qurʾan exegete and so far has not developed a comprehensive exegeti-
cal methodology.74 He has used the classical commentaries on the Qurʾan for
writing his legal opinions and, as mentioned before, compiled a theoretical
work on the ways of using the Qurʾan for modern ijtihād, drawing on the ex-
egetical methodologies of ʿAbduh and Rida. It is worth noting here that mod-
ern Qurʾan commentaries are still an integral part of classical Qurʾan exegesis
and that the exegetical method of ʿAbduh and Rida, which was not widely re-
ceived by their contemporaries, has by now become authoritative even among
conservative theologians and jurists.75 It may be seen that here too Qaradawi
seeks to find a middle way between two opposing exegetical trends that pre-
vailed in Egypt around the second third of the 20th century. The first trend was
traditional Qurʾan interpretation, based mainly on a literal understanding of
the text and on interpreting it in light of the hadith. The second trend upheld
a rational-scientific interpretation, seeking, mainly against the background of
Western cultural influence, to use all possible fields of human knowledge for
interpreting the Qurʾan. While ʿAbduh objected to the use of external sources
(such as the hadith) for interpreting the Qurʾan and held that the latter speaks

74 Khatib, Qaradawi, 158. Khatib therefore argues that those students who dedicate lengthy
PhD dissertations to Qaradawi’s Qurʾan interpretation are exaggerating.
75 Jansen, Interpretation, 17–20, referring to mid-20th-century Qurʾan exegesis in Egypt. See
also Sinai (“Reading,” 142, 150–1), who argues that Rida engaged the Qurʾanic exegetical
tradition in considerable detail and that both he and Sayyid Qutb intimately participated
in a centuries-long exegetical conversation.

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The Proper Use of the Classical Sources 87

for itself,76 and Rida supported the use of the hadith for interpreting the Qurʾan
and objected to scientific exegesis,77 Qaradawi preaches a combination of the
two approaches. It is worth mentioning that Qaradawi’s writing on the hadith
as a source of law, drawing mainly on Shaltut’s work, is much more expansive
and systematic than that of Rida.
ʿAbduh and Rida sought to open the understanding of the Qurʾan to larg-
er publics and therefore objected to the traditional technical exegesis of the
Qurʾan, based mainly on complicated grammatical and syntactical analysis
of the text,78 and supported practical Qurʾan interpretation. ʿAbduh held that
a topic or a concept that the Qurʾan did not define or explain must remain
ambiguous and that the correct understanding of the Qurʾanic text necessi-
tates consideration of the historical circumstances in which the Qurʾan was
revealed, as well as for modern circumstances and needs.79 Qaradawi con-
tinues this line of thought and one may suggest that his approach is also in-
fluenced by the work of the Egyptian Qurʾan exegete Amin al-Khuli (d. 1966).
ʿAbduh and Rida’s idea that the Qurʾan explains itself appears in Khuli’s work.
He claims that to understand a Qurʾanic word, concept or theme correct-
ly, the exegete must study all the appearances of that word or theme in the
Qurʾan. Khuli also argues that using knowledge of the pre-Islamic Arabs and
their culture is essential for a genuine evaluation of the literal meaning of the
Qurʾan.80 As shown in this chapter, Qaradawi professes the same ideas. Thus,
one may conclude that his attitude to Qurʾan exegesis justifies his inclusion
in the reformist camp that strives to instigate an internal Islamic revival. This
camp, like the Islamic reformists at the turn of the 20th century, abstains from
historical-rational critical investigation of the Qurʾan and from doubting the
holiness of its text.81 It stands in opposition to Qurʾan exegetes who function

76 Ibid., 25–7.
77 Ibid., 29, 53.
78 Rida was more willing to deal with syntactical analysis of the Qurʾan than his mentor
ʿAbduh; see Jansen, ibid., 29, and 64.
79 Ibid., 19, 25–7, 30, 77. This consideration for both the historical circumstances of the pre-
Islamic Arabs and for modern circumstances has given rise to the development of the
“contextual interpretation” of the Qurʾan, e.g. by Fazlur Rahman. This exegetical approach
claims that connecting the understanding of the Qurʾanic text by the 7th-century Arabs
to the contexts of following historical periods enables the renewal of the divine message
according to changing circumstances. For an extensive study of this approach, see Saeed,
Reading the Qurʾan, especially 3–5, 86–107.
80 Jansen, Interpretation, 66–7; Saeed, ibid., 73–5, 86, respectively.
81 Taji-Farouki, “Introduction,” 18–19.

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as Western scholars and shape their attitude to the Qurʾanic text according to
contemporary intellectual trends and critical methods (e.g., Nasr Hamid Abu
Zayd (d. 2010), Shahrur and Arkoun).82 The Islamic mainstream often views
the latter as agents of the Western cultural onslaught and therefore rejects
their works.83

82 On Abu Zayd’s exegetical method, see Kermani, “Abu Zayd.” On that of Shahrur, see
Christmann, “Shahrour,” and on that of Arkoun, see Günther, “Arkoun.”
83 Taji-Farouki, “Introduction,” 1–35, especially 27.

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 Chapter 4

The Role of Maṣlaḥa in Qaradawi’s Legal Theory

Introduction

So far, we have dealt mainly with Qaradawi’s writing about the classical sourc-
es of Islamic law—Qurʾan, sunna, consensus and analogy—and the ways the
modern jurist must use them. The analysis of this material makes it possible
to conclude that Qaradawi distinguishes between (1) novel legal topics that
are naturally not covered by the fiqh literature (e.g. photography, television,
human organ transplant or membership of women in parliament); and (2) old
topics that have already been dealt with by the jurists. To decide on the legal
rules pertaining to novel topics, which are not covered by clear-cut texts in ei-
ther the Qurʾan or the sunna, a “creative ijtihād” is required. Such ijtihād must
be informed by the general principles of the Qurʾan and the sunna, and by non-
textual jurisprudential sources, which are specified by the theory of maqāṣid
al-sharīʿa, mainly maṣlaḥa.
Qaradawi divides old topics that classical jurists dealt with into two types:

1. The legal rule pertaining to the topic is “known from religion by

­necessity”—such rule is epistemologically certain, because it is based on
a clear-cut text in either the Qurʾan and/or the authentic sunna and has
gained both the juristic and the practical consensus of the community.
With regard to the very few topics that enjoy this status (e.g. the prohi-
bition on wine and usury and the permission for polygyny), there is no
room for renewed ijtihād and therefore there is no justification for using
maṣlaḥa.
2. The legal rule pertaining to the topic is debated—that a number of legal
opinions pertaining to a certain topic exist is an indication that the rel-
evant textual indicators are only probable and not certain. To decide on
the legal rules pertaining to such a topic, two possibilities exist, from easy
to difficult:
(2.a) Conducting a “selective ijtihād,” namely choosing that juristic opin-
ion that is most suited to modern conditions and best serves the
maṣlaḥa of Muslims. For example, the modern jurist must opt for
the Hanafi opinion that permits a major female to conduct her
first marriage without the need to receive the approval of her male

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marriage guardian, because this opinion is in line with the current

social improvement in women’s status.
(2.b) Conducting a “creative ijtihād,” i.e. to develop a novel opinion on
the matter, which is additional to the existing fiqh opinions (e.g.
Qaradawi’s novel opinion regarding the question who should pay
the zakat for a rented property).

From all the above it emerges that, in Qaradawi’s system, reliance on maṣlaḥa
in the framework of the maqāṣid al-sharīʿa is legitimate in both the case of “se-
lective ijtihād” and of “creative ijtihād.” In this context, Qaradawi claims that if
the jurist wishes to understand the Prophetic sunna properly and to make the
correct distinction between the legislative and non-legislative parts of it, he
must take maqāṣid al-sharīʿa into account.
Before moving forward to discuss Qaradawi’s attitude towards maṣlaḥa, let
us remind ourselves that the crucial question in a theory of religious law is the
interplay between divine textual orders and considerations of social necessity
and public welfare. A successful legal theory should supply definite criteria for
dealing with cases in which textual orders seem to contradict the public good
and bring about social damage. One remedy provided by the pre-modern theo-
rists was the exclusion of maṣlaḥa from the realm of rules of worship, which
are immutable. However, what about other realms of the law which relate to
individual rights, such as contract law or family law? One way the theorists
used to preserve textually definite rulings was to argue that the more specific
the textual order is (e.g. the fixed shares of inheritance and the length of the
waiting period after divorce), the more certain it is and the less likely it is sus-
ceptible to change. Al-Qarafi and al-Tufi used this argument to restrict the un-
limited priority of maṣlaḥa over textual injunctions. Another way to preserve
the validity of textually definite rulings, such as the ḥudūd punishments (that
do not serve the individual maṣlaḥa of the criminal), was to justify such rul-
ings on the grounds of either rukhṣa or takhṣīṣ. They were, thus, exceptions to
the general divine rule, which are applicable under specific circumstances and
aimed at preserving Allah’s intention at a higher level. For example, amputat-
ing the thief entails harm for him as an individual, but it serves a greater social
benefit, since deterring criminals contributes to safeguarding one of the five
ḍarūriyyāt, the property rights of the entire Muslim community. It may be con-
cluded then that even the most far-reaching “substantial-rationalist” theory of
maṣlaḥa, that of al-Tufi, was not arbitrary; although he considered safeguard-
ing maṣlaḥa a general imperative that supersedes other legal indicants, he did

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The Role of Maṣlaḥa in Qaradawi ’ s Legal Theory 91

not envision its dominance to be absolute.1 This point must be kept in mind for
our forthcoming discussion on the academic critique of the work of modern
Muslim writers on maṣlaḥa.

Qaradawi’s Attitude towards maṣlaḥa

The historical circumstances in which Qaradawi writes on maṣlaḥa are dif-

ferent from those that affected Rida’s writings on that topic. At the turn of
the 20th century, the intellectual environment compelled Rida, as well as his
Syrian colleague, al-Qasimi, to argue for the compatibility of Islamic law and
the rational sciences and for the absence of conflict between the requirements
of reason and those of revelation. They found that al-Tufi’s interpretation of
maṣlaḥa provided their ijtihād with rational tools with which to address the
needs of Muslim societies. The internal opposition to their legal ideologies was
mainly rooted in traditional concepts of taqlīd to a particular law-school.
ʿUlama‌ʾ who wrote on ijtihād and maṣlaḥa around the mid-20th century did
not have to face the challenges that troubled Rida and al-Qasimi, because the
renewal of ijtihād was already widely accepted and the authority of the law-
schools much diminished. Facing the ideological challenges of secularism and
Islamic fundamentalism, the ʿulama‌ʾ of the mid-twentieth century lived in a
period in which their authority was already restricted by the institutions of
the modern state and the process of codification. Their pressing need was to
demonstrate that Islamic law was still relevant to the requirements and insti-
tutional framework of the nation-state.2 It seems that Qaradawi, who wrote on
maṣlaḥa in the late 20th century, has the same agenda.
The interpretation of the concept of maṣlaḥa provided by a jurist is the
result of his education, social status and historical environment. Opwis di-
vides the jurists who wrote on maṣlaḥa from the 1940s until the 1960s into two
groups. The first group, including the Lebanese Subhi Mahmasani (d. 1986), the
Moroccan ʿAlal al-Fasi (d. 1974) and the Sudanese Mahmud Muhammad Taha
(d. 1985), was involved in the secular legal system, in the state building process,
and were willing to change the inherited body of Islamic law. They drew upon
al-Shatibi’s theory of law, in which maṣlaḥa is interpreted as a legal indicant in
its own right. Opwis remarks that, if fully implemented, this interpretation of

1 Opwis, Maslaha, 217–18, 347–8.

2 Opwis, “Maslaha,” 220–1.

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maṣlaḥa potentially can overturn much of the traditional body of Islamic law
as well as some theological doctrines.
The second group, including jurists such as the above-mentioned Khallaf
and Ramadan al-Buti (d. 2013), was more conservative and strived to preserve
the traditional structure of Islamic law as much as possible. Through their
education and employment, they were closely associated with the religious es-
tablishment. Focusing on the traditional areas of expanding and adapting the
law, they used the maṣlaḥa models of al-Ghazali and al-Razi, which integrate
maṣlaḥa into the formal procedure of legal analogy and in which maṣlaḥa does
not count as an independent legal indicant. In order to achieve the desired
expandability and adaptability of the law, Khallaf and al-Buti reinterpreted the
definitions of what is immutable in the law and what is still acceptable as valid
criteria in the law-finding process. The two came to different results. Khallaf
limited the applicability of the texts and enlarged the scope of maṣlaḥa mursa-
la (i.e. a maṣlaḥa that is neither supported nor rejected by any clear-cut text in
the Qurʾan or in the sunna) for expanding the law. In contrast, al-Buti enlarged
the scope of the texts, and thereby of the textually-attested maṣlaḥa, and re-
duced the derivation of new laws based on maṣlaḥa mursala. Both scholars
however limited the adaptation of the law to a process of internal comparison
of existing rulings and giving prevalence to one over another. Despite the nov-
elty of their contributions to the concept of maṣlaḥa, both stayed within the
parameters of mainstream views.3 The following analysis of Qaradawi’s writ-
ings on maṣlaḥa will demonstrate that he belongs within the second and more
conservative group of modern ʿulama‌ʾ who write on maṣlaḥa.

Maṣlaḥa vs. Revealed Text

We recall that, according to Qaradawi, modern ijtihād may be conducted in

three ways: state legislation, legal opinions and academic research. If we focus
for a minute on state legislation, it means that the government is responsible
for incorporating maṣlaḥa in its legislation (in addition to its responsibility to
legislate in fields in which the texts are silent or where a decision between con-
tradictory juristic opinions is needed). Zaman comments that in his book on
siyāsa sharʿiyya, Qaradawi hardly discusses the ways in which the state must
apply the mechanism of maṣlaḥa, and that ʿulama‌ʾ who are more conservative
than Qaradawi fear the situation in which the use of maṣlaḥa is invested in

3 Ibid., especially 221–2.

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The Role of Maṣlaḥa in Qaradawi ’ s Legal Theory 93

the possibly unreliable hands of the state.4 We recall that Rida referred to this
question by stating that if a council including the most prominent ʿulama‌ʾ is
authorized to draft state legislation, the danger of using maṣlaḥa improperly is
minimized. It seems that Qaradawi concurs with Rida’s position on this matter.
In what follows, I focus on how Qaradawi sees the operation of maṣlaḥa on the
juristic level.
Qaradawi claims that the shariʿa intends to bring good to the believers and
to distance them from any evil and harm. All shariʿa rules contain maṣlaḥa,
whether visible to the believers or hidden. Maṣlaḥa is both private and general
and it relates to the spiritual and material dimensions of human life. It is there-
fore impossible to find within “the certain shariʿa” (al-sharīʿa al-maqṭūʿ bihā) a
rule that runs contrary to maṣlaḥa. This is evident in the maxim “it is forbidden
to cause harm or to reciprocate a harm by another harm” (lā ḍarar wa-lā ḍirār),
which has become one of the clear-cut and certain principles of the shariʿa.
According to Qaradawi, the divine law is located in the same place in which
maṣlaḥa is found.5 Thus, in cases not governed by a divine text, one may be sure
that if he identifies correctly the maṣlaḥa pertaining to the case, he identifies
at the same time where the law of Allah is located. Already al-Qarafi indicated
that the companions had based some of their rulings on maṣlaḥa mursala. For
example, the Caliph ʿUmar abstained from dividing the conquered lands of
Iraq exclusively among the Arab warriors, as required by the Qurʾan, because
such policy would have caused injustice and the loss of solidarity and mutu-
al trust within the young Islamic community.6 Although the classical jurists
were disputed on the scope of using maṣlaḥa mursala, they all legitimized it
in principle (especially the Malikis, followed by the Hanafis and the Hanbalis;
the Shafiʿis were the most restrictive in using it).7 Maṣlaḥa is instrumental in
adapting the law to changing circumstances, because rules based on maṣlaḥa

4 Zaman, “Ulama and the common good,” 134–9.

5 This formulation is associated with Khallaf and rejected by al-Buti; see Opwis, “Maslaha,”
214–15.
6 Another example of Caliph ʿUmar’s practice of preferring maṣlaḥa and maqāṣid al-sharīʿa to
particular rules from the Qurʾan is his decision to refrain from forcing the Christian tribe of
Thaghlib to pay the poll tax, as required by Q 9:60, and to accept their plea to pay the stan-
dard taxes imposed on Muslims. According to ʿAwda (Maqasid, 99), this precedent of ʿUmar
is central to Qaradawi’s maqāṣidī thought. Further examples in which the companions inno-
vated on the grounds of maṣlaḥa are: they decided to establish the shūra, the state treasury
and prisons; they set punishments not mentioned by the Qurʾan (e.g. eighty lashes on wine
drinkers), as well as levying taxes not indicated by the Qurʾan.
7 An example for a scholarly ruling based on maṣlaḥa mursala is the permission to conduct an
autopsy on a mother who died while giving birth to save the baby, on the ground that this

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must be altered when the maṣlaḥa on which the rule is based has changed or is
no longer relevant. Today, Muslim communities need to use maṣlaḥa mursala
in the framework of parliamentary and governmental work as a tool for legisla-
tion, such as in the realms of building, transportation and health care.8
The first and most important condition for using maṣlaḥa mursala is that it
must not contradict a clear-cut text or a certain legal principle; if it does, the
rule based on such maṣlaḥa is void. Maṣlaḥas that contradict definite texts
are imaginary and unreal (wahmiyya wa-ghayr ḥaqīqiyya).9 If we assume that
the believer needs something that is forbidden by a text, Islamic law treats
this problem according to three principles. The first one, which is consensual,
because it is indicated by five Qurʾanic verses, is that “necessities make the
prohibited permissible” (al-ḍarūrāt tubīḥ al-maḥẓūrāt). The second principle,
completing the first, is that the extent of permitting a prohibited act must not
exceed the scope of the necessity (mā ubīḥa li-l-ḍarūra yuqaddar bi-qadrihā
fa-lā natawassaʿ fī al-ibāḥa illā bi-qadr al-ḍarūra). The third principle is that,
to prevent continuous suffering or difficulty, a genuine private or public need
becomes a necessity (al-ḥāja tanzilu manzilat al-ḍarūra) and therefore makes
the prohibited permitted.10
In his early works, Qaradawi reprimanded al-Tufi, who exaggerated in
preferring maṣlaḥa mursala over the Qurʾan and the sunna texts and over
consensus.11 It seems that Qaradawi changed his view of al-Tufi, because in
later works he defends him. While al-Tufi’s opponents claimed that he ranked
maṣlaḥa above textual indicators, Qaradawi holds that this criticism is base-
less; that al-Tufi is misunderstood and that he, even if not stating this explicitly,
meant that maṣlaḥa may override indications in the foundational texts only
when such textual indications are probable, i.e. uncertain in terms of their au-
thenticity and their meaning.12

aim (saving life) is superior in terms of the maqāṣid to preserving the honor of the de-
ceased’s body. See Qaradawi, al-Ijtihad fi al-shariʿa, 157–8; idem, “Maslaha mursala,” 1–5.
8 Khallaf held a similar opinion, viewing maṣlaḥa mursala as the most fertile method for
legislating on modern topics not covered by textual injunctions or consensus; see Opwis,
“Maslaha,” 211.
9 Khallaf (see Opwis, “Maslaha,” 211) and al-Buti (ibid., 214–16) have similar views. This
position of Qaradawi is identical to Ibn Taymiyya’s opinion (Rapoport and Ahmad, “Ibn
Taymiyya,” 9).
10 Khatib, Qaradawi, 311–12.
11 Qaradawi, al-Ijtihad fi al-shariʿa, 45–6, 156–9. Khallaf and al-Buti express a similar critique
of al-Tufi; see Opwis, “Maslaha,” 210, 214.
12 Qaradawi, “Haqiqat maqulat Najm al-Din al-Tufi,” 116–18, where he summarizes his opin-
ion on this topic briefly and refers the reader to the works in which he dealt with it exten-
sively. See also Zaman, Modern Islamic Thought, 116–17; ʿAwda, Maqasid, 18.

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Qaradawi presents a number of modern legal opinions that exaggerate in

their use of maṣlaḥa at the expense of decisive texts. One such a case is the
topic of ribā. A second example is the idea of transferring the Friday prayer of
Muslims who live in the West to Sunday in order to attract more people to the
mosques. Qaradawi rejects this proposal vehemently, because there is a defi-
nite Qurʾanic text on that matter. If we permit such ijtihād, Qaradawi claims,
it will continue in an uncontrolled manner and those who conduct it will be
like blind people who wander in different directions and reach harmful results.
Qaradawi objects to those who propose cancelling legal permissions that
have arguably become irrelevant due to changes in social circumstances. One
such proposal was to cancel the reliefs granted to a believer while he is travel-
ling (e.g. combining two daily prayers), because current travel facilities make
these reliefs redundant. Qaradawi responds that the Qurʾanic texts base their
legal rulings on the visible causes and circumstances (al-ʿilal wa-l-asbāb al-
ẓāhira) and not on their underlying reason (ḥikma). As for travel, the underly-
ing reason behind the legal reliefs is the difficulty faced by the traveler. If we
based the legal rules solely on the consideration of preventing difficulty, we
would have found people who are able to cope with many difficulties and do
not need reliefs, as well as people who face difficulties at any tiny obstacle.
Thus, the ratio legis of the reliefs is the travel itself and not the difficulties ema-
nating from it. This is in analogy to the following case: the underlying reason
behind the requirement to stop at red traffic lights is to prevent car collisions.
Why do we stop at a red light even if the crossroad is completely vacant? This is
because the duty to stop is based on the visible ratio legis (the red traffic light)
and not on the underlying reason.13
The topic that serves as the “flagship” of Qaradawi’s struggle against those
who advocate the prohibition of Qurʾanic permissions on the grounds of
maṣlaḥa (or the prevention of social harm) is polygyny. Those who call for the
abolition or prohibition of polygyny (these calls have materialized in the leg-
islation of a number of Muslim states, such as Tunisia and Syria) substantiate
that call by claiming that the ruler is entitled to prohibit legal permissions that
cause social harms. They also base their call on Abduh’s interpretation of Q 4:3
and 129, which arguably amount to a prohibition of polygyny, due to the hus-
band’s incapability to treat his co-wives equally. Unlike them, Qaradawi holds
that the text of these verses is equivalent to a clear-cut permission, whose cer-
tainty has been consolidated by continuous scholarly and practical consensus
(see a detailed comparative analysis of this topic in Ch. 5).
Similarly to polygyny, the rules included in the Qurʾanic “inheritance verses”
(e.g. Q 4:11, which prescribes that the share of a male is double the share of a

13 Qaradawi, al-Ijtihad fi al-shariʿa, 161–4.

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female if both are in the same degree of familial relatedness to the deceased)
are in Qaradawi’s eyes “known from religion by necessity.” He therefore totally
rejects any proposal to equate the inheritance shares of males and females,
based on the argument that the traditional inheritance rules are inadequate
to modern conditions, where gender equality is the norm. Qaradawi dismisses
this argument by claiming that ijtihād is permissible only with respect to top-
ics, the rules relevant to which are based on probable legal indicators; this is
not the case here, because the text of the inheritance verses is definite. Another
claim put forward by the proponents of this reform, i.e. that the superiority
(qawāma) of men over women (Q 4:34) is no longer relevant to modern condi-
tions, is also dismissed by Qaradawi, because females are born to enjoy being
under the protection of males who carry and provide for them. It is justified
that a male gets twice the share of a female in inheritance, because even in the
current generation, when the wife studies or works, her husband is obliged to
provide for her.14
In conclusion, Qaradawi opposes engagement in ijtihād when the relevant
topic is based on a definite (and thus certain) legal rule. If all shariʿa rules were
open for change, the shariʿa, instead of being a leading norm, would be shaped
by human desires and ambitions, a situation against which the Qurʾan warns.
In addition, if the practice of ijtihād is left to every Muhammad, ʿUmar or ʿAli,
the Muslim community would end up in a situation of confusion and chaos.15

How is True maṣlaḥa Identified?

Qaradawi indicates three types of benefits and harms: those related to this
world, those related to the next one, and those that are a combination of both.
Relying on the work of the Shafiʿi scholar ʿIzz (al-Din) ʿAbd al-Salam (d. 1262),16
Qaradawi holds that the majority of benefits and harms related to this world
are recognizable by reason, while those related to the next world can be identi-
fied by the sunna.17 With regard to topics not covered by definite textual indi-
cators, the identification of the relevant benefits and harms and the balancing
between them is closely connected to the maqāṣid theory. Qaradawi mentions

14 Al-Buti held similar views to those of Qaradawi on polygyny and inheritance; see Opwis,
“Maslaha,” 215.
15 Qaradawi, al-Ijtihad fi al-shariʿa, 168–72.
16 Author of: “The principles of rules relating to the welfare of human beings” (Qawaʿid al-
ahkam fi masalih al-anam).
17 Qaradawi, Awlawiyyat, 22–4.

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here the pioneering work of al-Ghazali, who thought that maṣlaḥa is a specu-
lative legal source (aṣl mawhūm) and therefore strived to subordinate reliance
on maṣlaḥa to a more methodical and objective mechanism. Al-Ghazali’s work
was later developed mainly by al-Shatibi and has guided Islamic legal thinking
for many centuries.18
Qaradawi dedicated a monograph to the topic of maqāṣid,19 demonstrat-
ing his longstanding conviction that the Qurʾan and Islamic legal rules are
well reasoned,20 and his deep appreciation for those jurists, both classical and
modern, whose interest in this topic was greater than their interest in the ex-
pressions and the forms of Islamic jurisprudence. He views himself as a mem-
ber of a group of contemporary scholars who believe in the maqāṣidī way of
legal thinking and reject exclusive adherence to the literal understanding of
the divine texts.21 He states that he has already incorporated the conceptual
framework of the maqāṣid in his early theoretical works, followed by his the-
matic work on the zakat and his legal opinions. Since the beginning of the

18 Ibid., 19. Qaradawi specifies there al-Ghazali’s categories of maṣlaḥa.

19 Qaradawi, Maqasid. In the introduction to the work, he indicates that he researched the
topic in preparation for a conference convened by Shaykh Ahmad Zaki Yamani in London
in 2004. At this conference, the Council for the Intentions of the Shariʿa was established;
see ibid., 5, 15. It is worth mentioning that this study, more than two hundred pages long,
is not a systematic study of the maqāṣid theory. It is rather a polemical treatise, in which
Qaradawi situates his Wasatiyya movement in between two extreme flanks: the first is
composed of the “literalists” (al-ḥarfiyyūn), who are not interested in the meaning of the
texts, and the “formalists” (al-shakliyyūn), who are not interested in the essence of things.
Both emphasize external textual indicators and reject the logical bases of the law, its in-
tentions and analogy. The second flank is the “Westernized secularists”, who reject the re-
vealed texts in favor of considerations of maṣlaḥa, thereby rejecting Islam altogether, see
ibid., 13. A comprehensive and sympathetic analysis of Qaradawi’s maqāṣidī thought is
provided by Jasir ʿAwda (in the English version of his personal website his name is spelled
Jasser Auda), who seems to be a student and colleague of Qaradawi; see ʿAwda, Maqasid.
ʿAwda is a member of the European Council for Fatwa and Research, a founding mem-
ber and head of the Daʿwa Committee at the International Union of Muslim Scholars
and teaches at the Faculty of Islamic Studies in Doha. See http://www.jasserauda.net/en/
about-jasser-auda.html [accessed 17 May 2015].
20 Qaradawi, Maqasid, 11–12.
21 Among his predecessors, Qaradawi mentions Ibn Taymiyya, Ibn al-Qayyim, al-Shatibi,
Muhammad b. Ibrahim al-Wazir (Yemen, d. 1437), Wali Allah and Rida. Among his con-
temporaries, he mentions inter alia Shaltut, Darraz, Abu Zahra, Khallaf, al-Bahi al-Khuli,
Muhammad al-Ghazali, Sabiq and al-Ṭahir b. ʿAshur; see Qaradawi, Maqasid, 12, 79. For
more information on the maqāṣidī elements that Qaradawi drew from both his pre-mod-
ern and modern “teachers,” see ʿAwda, Maqasid, 13–27.

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“Islamic awakening” in the last quarter of the 20th century, he has striven to
guide this trend to a moderate course and to base it on a novel jurisprudence,
including a number of branches, central among which is the jurisprudence
of intentions (fiqh al-maqāṣid). This jurisprudence focuses on the meanings,
secrets and underlying reasons of the texts rather than on the plain linguistic
meaning of them.22
Qaradawi defines maqāṣid al-sharīʿa as the aims that the Qurʾan and the
sunna wish to achieve and that the specific legal rules seek to realize. Put dif-
ferently, maqāṣid al-sharīʿa are the underlying reasons of the legal rules, since
any divine legislation is reasoned rather than senseless. The “intention” of a
rule is different from its ratio legis (ʿilla, which is used for the operation of anal-
ogy), because the ratio legis is the circumstance of the rule (sabab li-l-ḥukm)
and not its intention or aim (maqṣidan lahu; see the above-mentioned discus-
sion on the reliefs in prayers and fasting granted to a believer while travelling).
The underlying reason of the rule is sometimes clear at first sight. For example,
granting females a share of inheritance in their parents’ legacy (unlike the cus-
tomary Arab practice) is readily understandable, because males and females
share the same parents. In other cases, the underlying reason is hidden, e.g.
the reason for granting a male twice the share of a female in inheritance is not
visible at first sight; it is explainable only if we consider that a male has to pay
dower upon his marriage, while a female is the recipient of the dower.23
Qaradawi praises al-Ghazali for his good definition of maṣlaḥa as an expres-
sion of maqāṣid al-sharīʿa, which means that maṣlaḥa must be examined in
light of the divine law; it is Allah who determines what benefits the believers,
not the believers themselves. In other words, maṣlaḥa that does not match the
maqāṣid is not a genuine maṣlaḥa and constitutes only a response to human
whims and desires.24 Qaradawi supports al-Ghazali’s specification of the five
ḍarūriyyāt, including the sixth—the protection of honor (ʿirḍ)—added by

22 Other branches in Qaradawi’s jurisprudence are the jurisprudence of traditions ( fiqh

al-sunan), the jurisprudence of the results that emanate from the specific legal rules
( fiqh al-ma‌ʾālāt), the fiqh of balancing social benefits and harms ( fiqh al-muwāzanāt),
the fiqh of priorities ( fiqh al-awlawiyyāt) and the fiqh of conflictual juristic opinions ( fiqh
al-ikhtilāf).
23 Qaradawi, Maqasid, 20–3.
24 Qaradawi, “Maslaha mursala,” 2. He brings as an example the issue of legalizing homo-
sexuality on the ground of maṣlaḥa. This is not a real maṣlaḥa, Qaradawi argues, because
it contradicts a clear textual prohibition and because it runs counter to one of the five
maqāṣid, i.e. the protection of one’s descendants within a proper family.

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The Role of Maṣlaḥa in Qaradawi ’ s Legal Theory 99

al-Qarafi.25 He however holds that while al-Ghazali and other classical legal
­theorists focused on individual benefits, incorporating necessary benefits of
public character—e.g. protection of justice, freedom, equality, fraternity, so-
cial solidarity and human rights—into contemporary legal discourse is still
required.26
Qaradawi has two main reservations regarding al-Ghazali’s maqāṣidī
thought, the first being that al-Ghazali restricted his discussion of maṣlaḥa to
the protection of the five ḍarūriyyāt, ignoring the fact that the shariʿa must pro-
tect also the ḥājiyyāt and the taḥsīniyyāt, which al-Ghazali himself articulated.27
Qaradawi thus proposes a wider definition of maṣlaḥa, including, in addition
to the above-mentioned components, anything that eases the lives of Muslims
and keeps them from distress, helps them to obtain respected moral qualities
and guides them towards the strongest and most stable customs, methods and
economic transactions.28 Qaradawi’s second reservation is that al-Ghazali
posed conditions for the operation of maṣlaḥa that are too difficult to realize.
The first condition is that the maṣlaḥa must be general (kulliyya), i.e. that the
maṣlaḥa is relevant to all Muslims in all circumstances. The second condition
is that the maṣlaḥa must be definite or close to that (qaṭʿiyya aw qarīban min-l-
qaṭʿiyya). Qaradawi argues that the practice of the companions demonstrates
that they did not subordinate themselves to these two conditions and consid-
ered maṣlaḥa even if it was partial, referred to the ḥājiyyāt rather than to the
ḍarūriyyāt or was probable.29
Qaradawi supports al-Shatibi’s expansive attitude towards maṣlaḥa,30 be-
cause the latter did not insist on it being general or definite, and was satisfied

25 For the similar opinions of Khallaf and al-Buti on the necessary subordination of maṣlaḥa
to maqāṣid al-sharīʿa, see Opwis, “Maslaha,” 210, 214–15.
26 Qaradawi, Maqasid, 27–9. Cf. Zaman, Modern Islamic Thought, 115. According to ʿAwda
(Maqasid, 31–2, 48–57), the additional ḍarūriyyāt that Qaradawi induces from the re-
vealed texts reflect his criticism of traditional maqāṣidī thought, which emphasizes
individual benefits over those of the family, society and the Muslim community at
large. ʿAwda (ibid., 59–73) argues that, in addition to the specific benefits discussed by
Qaradawi, one may derive from his writings another five general maqāṣid that guide him:
leniency (taysīr), justice, worship of Allah, propagation of Islam and consideration for
man’s nature (murāʿāt al-fiṭra).
27 Qaradawi’s opposition to al-Ghazali’s restriction of maṣlaḥa to the protection of the five
ḍarūriyyāt follows Ibn Taymiyya’s position (Rapoport, “Ibn Taymiyya,” 200).
28 Qaradawi, “Maslaha mursala,” 2.
29 Ibid., 4.
30 Notice that al-Shatibi defined his method as a middle position between insistence on lit-
eral interpretation of the revealed texts and exaggeration in conducting analogies (Gillis,

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with three less demanding conditions: one, that the maṣlaḥa makes sense in it-
self. One must remember here that this condition applies to rules pertaining to
human transactions and not to rules of worship. Al-Shatibi set the premise (ac-
cepted by Qaradawi), that rules of worship must be applied without question-
ing their meaning and purpose. Al-Shatibi further argued that in the Qurʾan,
by explaining in detail the underlying reasons of the rules pertaining to human
transactions, Allah signaled to his human interpreters that they must do the
same. Qaradawi admits however that even in the field of human transactions
there are specific rules (muqaddarāt, e.g. the duration of the waiting period
after a divorce, the fixed shares in inheritance, the number of lashes prescribed
as punishment for adultery), the underlying reason of which cannot be under-
stood. Truly, the rules of worship have meanings and aims, but their indication
is not specific; we know the purpose of prayer, but do not have a clue why the
number of daily prayers was set at five.31
The second condition set by al-Shatibi was that the maṣlaḥa corresponds to
the maqāṣid in a general sense, even if there is no specific textual indicator that
this particular maṣlaḥa must be considered; and the third condition was that
the maṣlaḥa is connected to the protection of one of the ḍarūriyyāt or contrib-
utes to alleviating a situation of religious distress. Qaradawi also agrees with al-
Shatibi that proficiency in the maqāṣid is not merely a condition for engaging
in ijtihād but also a cause for ijtihād. Put differently, the mujtahid must be guid-
ed by the maqāṣid when he extracts specific legal rules from the general prin-
ciples located in the Qurʾan, sunna and consensus. Thus, using the maqāṣid is a
condition for the validity of any act of ijtihād and for its correctness.
According to Qaradawi, prior to al-Shatibi’s era the legal theorists focused
mainly on the linguistic aspects of the texts and on the details of the legal rules
and did not pay enough attention to the maqāṣid.32 This approach brought
about the development of legal stratagems (ḥiyal), objected to by Ibn Taymiyya
and his disciple Ibn al-Qayyim. It was argued against al-Shatibi that no theorist
before him had mentioned the maqāṣid as a condition for ijtihād. Qaradawi

“Benefit,” 28). We recall that both Rida and Qaradawi have insisted on holding the middle
position among their contemporary jurists.
31 Qaradawi, Maqasid, 199–214. For Khallaf’s similar views concerning topics excluded from
the application of maṣlaḥa considerations, see Opwis, “Maslaha,” 211, 213.
32 One such negative example is Ibn Hazm’s opinion, supported by modern Ahl al-Hadith,
that merchandise is exempted from the zakat, because there is no textual indicator to this
effect. Qaradawi (al-Ijtihad fi al-shariʿa, 46–7) holds that this ruling is wrong, because it
contradicts the Qurʾanic general principle that the rich are obliged to donate from their
fortunes in favor of the poor.

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The Role of Maṣlaḥa in Qaradawi ’ s Legal Theory 101

has two responses to these allegations: the first is that any jurist who bases his
ijtihād on the Qurʾan and the sunna refers to the maqāṣid in any case.33 The
second response is that the theorists pointed to the mujtahid’s need to know
the general legal principles (al-qawāʿid al-kulliyya; qawāʿid al-sharʿ) in order to
identify the intentions of the divine legislator. One may claim therefore that
the theorists did prefer the general principles to the specific rules.
To comprehend the maqāṣid, the jurist must consult the justifications
(taʿlīlāt) for legal rules provided by the Qurʾan and the sunna. These justifi-
cations teach that Islamic law strives inter alia to attain justice, fair distribu-
tion of public resources, mercy towards humankind and the protection of life.34
Qaradawi specifies seven aims for the improvement of humankind. The first is
to ascertain the correct Islamic creed with respect to Allah, prophecy and the
divine reward. The second is to determine human honor35 and human rights,
especially those of the weak. The third is to propagate the worship of Allah.
The fourth is to cleanse the human soul and to strengthen human morality.
The fifth is to construct the good family36 and to grant justice to women. The
sixth is to establish an Islamic community that serves as an example for hu-
manity and the seventh and final aim is to call for international cooperation.37

Balancing Benefits and Harms

Qaradawi holds that modern Muslims have lost the correct order of priorities
with regard to legal rules, moral values and actions. Entertainment and leisure
are thus preferred to study and work; the body is preferred to the intellect and
the material is more valued than the spiritual. Hence, the role models are sing-
ers, actors and athletes rather than intellectuals and scientists. Huge amounts
of public money are invested in entertainment, sports and the media, while es-
sential social services are neglected. This loss of the correct order of priorities

33 Ibid., 44.
34 Qaradawi, Maqasid, 23–4.
35 According to ʿAwda, Maqasid, 48–9, one of the innovations of Qaradawi is that he in-
terprets the element of “honor”, which is included in classical maqāṣidī thought, as the
liberal value of human rights.
36 Qaradawi, relying on the Qurʾan and the sunna, categorizes the protection of the family as
one of the ḍarūriyyāt; see ʿAwda, Maqasid, 105 ff.
37 Qaradawi, Maqasid, 25–7. A detailed discussion of these seven objectives appears in
Qaradawi, Qurʾan, 71–125. He admits that in specifying the seven objectives he was influ-
enced by the ten objectives specified by Rida in his work “The revelation of Muhammad”
(al-Waḥy al-Muḥammadī).

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is felt also among those who identify themselves with the Islamist camp. New
mosques are built in areas in which there are plenty of mosques, instead of
spending these resources on propagating Islam. Rich Muslims who travel to
Mecca for the pilgrimage take with them poor Muslims (who, because of lack
of resources, are juristically exempted from the hajj duty and some of whom
have already been in Mecca at least once) and pay their expenses, instead
of contributing their fortunes to worthier Islamic causes. Observant young
Muslims who studied medicine, engineering or other professions and excelled
in their studies, refrain from practicing their professions and choose instead
to work in Islamic propaganda, not realizing that practicing their professions
is more beneficial to Islam. Others, including Muslims living in the West, oc-
cupy themselves with discussing marginal and negligible juristic themes, such
as the hand on which a Muslim must wear his watch, instead of tackling the
principal problems that challenge Islam today.38
The Muslim community is still experiencing a period of decline.
Contemporary Muslims neglect their collective duties (e.g. excellence in sci-
ence, manufacturing, fighting; ijtihād; propagating Islam; and the establish-
ment of shūra) as well as some of their individual duties, e.g. the duty to order
the good and prohibit the wrong. Even when they act to forbid wrongs, they
prefer to fight against acts categorized juristically as abhorred or doubtful,
such as photography, singing and the covering of a female’s face, rather than to
fight against acts that are forbidden, such as popular religious rituals. Muslims
confuse the correct priorities among the Five Pillars of Islam, by preferring
fasting over prayer and supererogatory prayers to obligatory ones; they for-
get the requirement to care for their parents, relatives, neighbors, the poor,
orphans and other needy people and fail to combat governmental corruption
and social oppression.
This overall loss of proper religious orientation by the Muslim community
renders the shaping of “the fiqh of priorities” (fiqh al-awlawiyyāt) a necessity.39
The general principle of making priorities can be drawn from the Qurʾan
and the sunna: the Qurʾan (9:19–20) states that belief in Allah and jihad in
his name are valued more highly than performing the hajj; the Qurʾan (9:71)
also ranks the act of forbidding wrong higher than praying and paying zakat.
The Prophetic sunna ranks the seventy-seven branches of the Islamic creed

38 Qaradawi, Awlawiyyat, 10–14.

39 Ibid., 15–17.

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The Role of Maṣlaḥa in Qaradawi ’ s Legal Theory 103

according to order of importance and it is also reported that the companions

often asked the Prophet which line of action is more favorable to Allah.40
Islamic jurisprudence established principles for prioritizing between tex-
tually-unattested benefits. One such principle is that a certain maṣlaḥa is pre-
ferred to a probable one. Other principles are that a large maṣlaḥa is preferred
to a small one, a general maṣlaḥa is more important than a private one and
the maṣlaḥa of the majority is ranked higher than that of the minority. In ad-
dition, a lasting maṣlaḥa is more valuable than a temporary one, a substantial
maṣlaḥa is more important than a formal one, a fundamental one is better
than a marginal one, and major future benefit is preferred to minor current
benefit. For example, in the treaty of al-Hudaybiyya, the Prophet sacrificed
a short-term harm—not being able to make the pilgrimage that year—for a
long-term gain—a ten-years’ cease-fire with his Meccan enemies and securing
his southern front from Meccan attacks while attacking al-Khaybar, which is
located north of Medina.
In balancing harms, the jurist must rely on the priorities set among the
maqāṣid, e.g. harm caused to one of the ḍarūriyyāt is graver than harm caused
to one of the ḥājiyyāt or taḥsīniyyāt.41 In addition, as in the case of benefits,
the jurists established guiding principles for balancing harms. Thus, the fiqh
prohibits the causing of harm and the retribution of harm by causing harm as
well as preventing a given harm by inflicting an equal or greater one. If caus-
ing harm is required, it must be the smallest possible, and the fiqh permits
the inflicting of a restricted harm to stop a general one. If there is a collision
between benefits and harms, the highest benefit and the smallest harm must
be chosen and the removal of harm is preferred to bringing about a benefit
(e.g. in Q 2:219 it is stated that there is a great sin in wine and also some benefit
to men; thus, drinking wine is forbidden altogether). Other relevant juristic
principles applied in cases of such collision are that causing a small harm is
forgiven if a great benefit is secured; a temporary harm is bearable if a stable

40 Ibid., 7–9, 15–16.

41 It is not clear whether Qaradawi sets an order of priorities among the ḍarūriyyāt.
According to al-Buti, these priorities in descending order are religion, life, intellect, prog-
eny and property. The maṣlaḥa that is rated higher on this scale prevails over the lower
one; see Opwis, “Maslaha,” 216. According to ʿAwda (Maqasid, 46), the problematics in-
volved in setting priorities among the ḍarūriyyāt caused many classical jurists, such as
al-Razi, al-Qarafi and al-Shatibi, to refrain from doing so.

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benefit is guaranteed, and a secured benefit must not be given up for fear of an
imagined harm.42
As we have already seen, Qaradawi relies on evidence regarding the com-
panions’ practice (Caliph ʿUmar’s decision to abstain from dividing the
conquered land of Iraq solely among the fighting forces; the companions’ de-
cision to collect the Qurʾan) for justifying the permission to rule according to
­textually-unattested maṣlaḥa. Moreover, he uses the same evidence to support
his call to rule according to the maqāṣid. Thus, it seems that Qaradawi does not
make a fine theoretical distinction between textually-unattested maṣlaḥa and
the maqāṣid.
A practical example that combines the use of the maqāṣid and the “fiqh of
priorities” for reaching a legal ruling on a concrete legal topic is the question
whether Muslim males who live in the West must grow beards. The relevant
texts are Prophetic reports instructing Muslim male believers to grow beards.
What were the circumstances underlying the order, Qaradawi asks? The
Prophet meant to distinguish the external appearance of Muslims from that of
believers of other religions, because strengthening the uniqueness of Muslims
was important in the early days of Islam. Connecting these circumstances to
the categories of the maqāṣid, Qaradawi claims that the Prophetic order must
be categorized among the ḥājiyyāt, not the ḍarūriyyāt, because the aim of the
order was “supplementary” (takmīlī) and not fundamental (ta‌ʾsīsī). The next
step is to connect the above-mentioned aim to the five categories that rank any
act conducted by a Muslim in his life according to the reward or punishment
he will receive for it (al-aḥkām al-khamsa). In our case, since we are dealing
with a supplementary aim, the act (growing a beard) must not be categorized
as obligatory (farḍ or wājib), but as a “recommended” (mandūb) one, a category
that does not entail a punishment for one who chooses not to conduct the act.
This was indeed the understanding of the companions, Qaradawi continues;
some of them chose to grow beards (and even to dye them) while others re-
frained from doing so. Back to theory, Qaradawi claims that a recommenda-
tion may be waived, if the circumstances so require. Moving forward to the
modern period, Qaradawi states that he would not advise Muslims who live in
the West to grow their beards, because their aim must be to integrate in their
surrounding non-Muslim society, unlike the days of early Islam, when Muslims
wished to distinguish themselves from the surrounding society. In addition,
a different outer appearance of Muslim males will jeopardize their duty to
propagate Islam, which is a “necessary” aim of the shariʿa (the preservation of

42 Qaradawi, Awlawiyyat, 20–2. On al-Buti’s similar set of rules for prioritizing benefits and
harms, see Opwis, “Maslaha,” 216–18.

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The Role of Maṣlaḥa in Qaradawi ’ s Legal Theory 105

religion). In conclusion, balancing the benefits and harms of growing beards,

the harms outweigh the benefits. In contrast, females’ covering their heads is a
legal duty and not just a recommendation, and thus must not be waived even
for Muslim females who reside in the West, because the waiving of duties is
allowed only in situations of duress, which is not the case here. Such a conces-
sion will very probably cause the relinquishment of other fundamental Islamic
duties, bringing about total religious deterioration among Muslim communi-
ties in the West.43
Closely connected to the perceptions of maṣlaḥa mursala and maqāṣid al-
sharīʿa is the juristic mechanism of “eliminating pretexts” (sadd al-dharāʾiʿ),
i.e., blocking the means that may lead to the performance of a prohibited act
or to the infliction of harm. Abou El Fadl argues that Islamic reformists rely on
maṣlaḥa to promote their desired policies, while Islamic conservatives rely on
the mechanism of “eliminating pretexts” to justify their opposition to social
and political reforms. The use of “eliminating pretexts”, claims Abou El Fadl,
requires the balancing of interests, because any prevention of evil or of harm
deprives a certain social group of its rights of action, usually the weakest group
(the majority of Hanafis and Shafiʿis rejected therefore the use of “eliminating
pretexts”, while the Malikis and Hanbalis adopted this mechanism condition-
ally). There should be a probability close to certainty that the evil one seeks to
prevent is greater than the benefit obtained through the performance of the
act. As an example for an imbalanced use of “eliminating pretexts”, Abou El
Fadl brings the legal opinions of a number of Saudi jurists that prohibit women
from driving, on the ground that it will bring about an indecent mingling be-
tween males and females. He argues that these Saudi jurists despotically inflate
the conditions for the operation of “eliminating pretexts” and in an arbitrary
and impressionist manner set rules that fit their social worldview.44
It seems that Qaradawi concurs with Abou El Fadl’s line of thinking.45 He re-
fers to conservative jurists’ opposition to artificial insemination on the ground
of “eliminating pretexts”, i.e. out of fear that the wife’s ovum will mistakenly
be fertilized not by the husband’s sperm but by that of another male donor,
thereby creating a wrong paternal affiliation for the baby. Qaradawi comments
that there is no need to be extreme, and that artificial insemination may be

43 Qaradawi, Maqasid, 155–61.

44 Abou El Fadl, Speaking, 190–2.
45 Cf. Ibn Taymiyya, who objected to the exaggerated reliance on pious caution (waraʿ) as a
pretext for abstaining from active fulfillment of God’s decrees (Rapoport, “Ibn Taymiyya,”
213).

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permitted under adequate precautions recommended by modern medicine.46

It seems that in this case Qaradawi balances between two ḍarūriyyāt: the pro-
tection of the family and lineage, which is served by further procreation, and
the protection of religion, which may be jeopardized if the wife’s ovum is fer-
tilized by the wrong sperm. According to his proposal, the first aim may be
achieved without harming the second.

Conclusion

To justify the reliance on considerations of maṣlaḥa in the framework of mod-

ern ijtihād, Rida argued that maṣlaḥa formed part of the classical mechanism
of analogy and that the maqāṣidī ideas of al-Ghazali and al-Shatibi were con-
sensual. Qaradawi follows suit in a much more thorough and systematic man-
ner, expanding, in the spirit of Ibn Taymiyya, al-Ghazali’s list of ḍarūriyyāt from
the individual to the societal level and using concrete principles developed by
classical jurists for prioritizing and balancing between benefits and damages.
He earned the title “the jurist of the maqāṣid” not because he invented this
legal mechanism but because he applies it widely and consistently in his theo-
retical writings and in his fatwas.47
Of the two groups of modern ʿulama‌ʾ who write on maṣlaḥa that Opwis
discusses, it seems that Qaradawi belongs with the second, more conservative
group. Among them, al-Buti is more “conservative” than Khallaf in the sense
that in his legal theory the scriptural rulings are much less subject to adapta-
tion or disregard than in Khallaf’s thought.48 One may assume that Qaradawi
was versed in both Khallaf’s and al-Buti’s work on maṣlaḥa when he set to
work on his study of maqāṣid al-sharīʿa. Although one finds in his discourse on
maṣlaḥa many similarities to that of al-Buti, it seems that his ideas are closer
to those of Khallaf.49 This is because Qaradawi, by limiting the scope of the
consensual textual indicators, enlarges the field in which maṣlaḥa mursala can
operate.
As noted by Opwis, the maṣlaḥa models of Khallaf and al-Buti are inspired
largely by the maqāṣidī thought of al-Ghazali and al-Razi. The rhetorical at-
tachment that Qaradawi expresses to this model, which is more conservative

46 Qaradawi, al-Ijtihad fi al-shariʿa, 154.

47 Khatib, Qaradawi, 187–8.
48 Opwis, “Maslaha,” 220.
49 Indeed, he mentions Khallaf as one of his modern “teachers” on maṣlaḥa, while he does
not refer to al-Buti in this context; see n. 21 above.

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The Role of Maṣlaḥa in Qaradawi ’ s Legal Theory 107

than that of al-Tufi and al-Shatibi, is very important for him, because it helps
to widen the basis of the legitimacy of his legal thinking and decision-making.
However, substantially he is critical of this model and inclines practically to
adopt al-Shatibi’s more radical model of maqāṣid. This is reflected by his reser-
vations about al-Ghazali’s model, mainly that the latter posed too severe condi-
tions for the operation of maṣlaḥa and that his list of ḍarūriyyāt is too narrow.
It seems that the main innovation in Qaradawi’s work on maṣlaḥa and the
maqāṣid is enlarging the list of the ḍarūriyyāt well beyond that of al-Ghazali
and al-Qarafi and adapting it to modernity by including in it Western-oriented
liberal values.50 At the same time, Qaradawi adopts al-Shatibi’s lenient con-
ditions for the use of maṣlaḥa and defends him from his critics. It may be
therefore concluded that in practice, Qaradawi clearly prefers the substantial-
rationalist maṣlaḥa models of al-Tufi and al-Shatibi to the formal-rationalist
ones of al-Ghazali and al-Razi.51

50 Salvatore (“Qaradawi’s maslaha,” 246), citing Zaman, argues that Qaradawi expands
maṣlaḥa to include everything that enables human life and that in his system maṣlaḥa
becomes a worldview of social and economic welfare. While this argument has some
truth in it, it neglects the fine and detailed interaction that Qaradawi creates between the
revealed texts and maṣlaḥa.
51 Cf. Gilis, “Benefit,” 21–22.

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 Chapter 5

Case Study I—Polygyny

Introduction

The topic of polygyny has been at the center of public debate in Muslim societ-
ies since the late 19th century. This was mainly because Western observers, af-
fecting local political elites, reformist ʿulama‌ʾ and Muslim liberal intellectuals,
argued critically that polygyny was a clear example of the lack of gender equal-
ity embedded in Islamic law and hence a sign of the backwardness of Islamic
civilization. Polygyny has never been a mass phenomenon in Muslim societies.
Taking Egypt as an example, polygyny was practiced by all social classes, urban
and rural alike, yet even at its peak in the 1860s, the rate of polygynous mar-
riages did not exceed ten percent of the total number of marriages. From the
1870s onwards, polygyny was in decline, as the result of the demise of the large
elite households, the end of the slave trade (following the antislavery conven-
tion of 1877), and the adoption of monogamy by the Khedival family. During
that period, modernist intellectuals, through the new printed press, preached
in favor of the conjugal family unit (instead of the extended family), based
on monogamy and compassionate marriage, in accordance with the European
ideal model.1 This trend was naturally opposed by orthodox ʿulama‌ʾ and other
conservatives, who regarded polygyny as a religiously sanctioned institution
and as a vital building block of Muslim societies. The heated public debate on
polygyny explains the modernist Islamic writing on that topic, e.g. by ʿAbduh
and Rida (see the analysis below), at the turn of the 20th century and during
the first decades of that century.
During the second half of the 20th century, polygyny continued to decline,
mainly because a number of Middle Eastern and North African states either re-
stricted it by various legal means or abolished it altogether.2 Although polygyny
has become a negligible social phenomenon today, one is puzzled by the fact
that intellectuals and ʿulama‌ʾ, Qaradawi included, continue to argue about it.
This implies that polygyny is a powerful Islamic symbol of identity and thus

1 Cuno, Modernizing marriage, 11–12, 23, 71–2.

2 On the legislation pertaining to polygyny, see Aharon Layish and Ron Shaham, “Nikāḥ,”
EI2. On the situation in Egypt, where polygyny is still permitted, yet defined as optional
grounds for the wife to sue for divorce at the family courts, see Shaham, “State, feminists and
Islamists,” especially 469–70.

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still stands at the center of the intellectual battlefield concerning the cultural
orientation of Islamic societies, and the political struggle over the role of reli-
gion and its representatives, the ʿulama‌ʾ, in the state.

The Polygyny Verses and their Pre-modern Interpretation

Ijtihād on the question of polygyny requires engagement with Qurʾan inter-

pretation, because the juristic permission for polygyny is based on Q 4:3 (as
well as Q 4:129). Thus, the topic of polygyny is a good prism for analyzing how
modern jurists and other intellectuals integrate reliance on the divine texts
with other legal sources, mainly maṣlaḥa. This chapter analyzes a number of
modern interpretations of the permissibility of polygyny, including that of
Qaradawi, seeking to determine whether their methods of ijtihād are applied
meticulously.
The beginning part of Q 4 (Women, al-Nisāʾ) deals with the required treat-
ment of orphans by their guardians. Verse 2 says: “And give to the orphans their
properties and do not substitute the defective [of your own] for the good [of
theirs]. And do not consume their properties into your own. Indeed, that is
ever a great sin.” Any attempt to translate the following verse, v. 3, which is
central to our discussion, is in itself an act of interpretation. I therefore present
here a number of possibilities:

(3) And if you fear that you [guardians/men in general] will not deal just-
ly (tuqsiṭū) with the orphan girls/orphans in general (al-yatāmā), then
marry those that please you of [other/orphan] women (mā ṭāba lakum
min-l-nisāʾ), two or three or four. But if you fear that you will not be just
(an lā taʿdilū), then [marry only] one or those your right hand possesses
(i.e. female slaves). That is more suitable that you may not incline [to
injustice]. (4) And give the women [upon marriage] their [bridal] gifts
graciously. But if they give up willingly to you anything of it, then take it
in satisfaction and ease. (5) And do not give the weak-minded (al-sufahā)
your property, which Allah has made a means of sustenance for you, but
provide for them with it and clothe them and speak to them words of ap-
propriate kindness. (6) And test the orphans [in their abilities] until they
reach marriageable age. Then if you perceive in them sound judgment,
release their property to them. And do not consume it excessively and
quickly, [anticipating] that they will grow up. And whoever [when acting
as guardian] is self-sufficient should refrain [from taking a fee out of the
orphan’s property]; and whoever is poor—let him take according to what

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is acceptable. Then when you release their property to them, bring wit-
nesses upon them. And sufficient is Allah as Accountant.

Verse 7 begins another section of sura 4 that deals with rules of inheritance.
A second reference to polygyny appears towards the end of the same chapter,
within a section dealing with marital rules. The section begins with v. 127, the
translation of which is also controversial:

And they request from you, [O Muhammad], a [legal] ruling concerning

women (al-nisāʾ). Say, Allah gives you a ruling about them and [about]
what has been recited to you in the Book concerning the orphan girls/
orphans of women (yatāmā al-nisāʾ) to whom you do not give what is
decreed for them—and [yet] you desire to marry them—and concern-
ing the oppressed among children (al-mustaḍʿafīn min al-wildān) and
that you maintain for orphans (al-yatāmā) [their rights] in justice. And
whatever you do of good—indeed, Allah is ever Knowing of it.

V. 128 discusses a situation of spousal conflict that may be settled through com-
promise. Finally, v. 129, the second of the “polygyny verses,” reads as follows:

And you will never be able to be equal between wives, even if you should
strive [to do so] (wa-lan tastaṭīʿū an taʿdilū bayna-l-nisāʾ wa-law ḥaraṣtum).
So do not incline completely [toward one] and leave another hanging
( fa-lā tamīlū kull-l-mayl fa-tadharūhā ka-l-muʿallaqa). And if you amend
[your affairs] and fear Allah—then indeed, Allah is ever Forgiving and
Merciful.

Already early Qurʾan exegetes had considerable difficulties in understanding

the meaning of the “polygyny verses,” which apparently contradict each other:
the first (v. 3) permits men to marry up to four wives if they are able to treat
them equally; the second (v. 129) declares that men are unable to treat their co-
wives justly. Does v. 129 abrogate v. 3, thereby outlawing polygyny?
These difficulties are represented in the major commentary work of
al-Tabari,3 who provides four alternative interpretations of v. 3:

1. A guardian of an orphan girl who wishes to marry her yet fears that he,
controlling her property, will be tempted not to pay her the proper dower,
must not marry her. Rather, he may marry up to four [other] women.

3 Tabari, Jamiʿ al-Bayan, 3 (part 4): 155–61 (regarding v. 3) and 4 (part 5): 201–3 (regarding v. 129).

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2. A guardian of an orphan girl who wishes to marry her yet fears that he,
controlling her property, will be tempted not to pay her the proper dower,
must not marry her. Rather, he may marry up to four orphan girls who are
under the guardianship of other persons.
3. A guardian of orphan/s must not marry more than four women to pre-
vent a situation in which he makes excessive use of his ward’s property to
pay the dowers and alimonies due to his wives.
4. As guardians of orphans, Muslim men succeeded in refraining from
usurping the properties of their wards but failed to treat their wives prop-
erly. Thus, the verse warns them that they should be afraid of mistreating
their wives to the same extent that they fear to usurp the property of their
wards. They are permitted therefore to be married to up to four women
and, if this quantitative limitation still does not secure their equal treat-
ment of their wives, they should be satisfied with only one wife.

For Tabari, the fourth option is the most plausible. He explains that this sec-
tion of the sura deals with the duty to treat orphans properly, and therefore it
is logical that a link is made between this duty and the duty to treat one’s wives
fairly by providing all their legal marital rights.
A number of classical exegetes identified a syntactical difficulty in v. 3, which
is framed as a conditional sentence. They thought that “then marry those that
please you of women, two or three or four” cannot logically be the response to
the condition: “And if you fear that you will not deal justly with the orphans.”
They found it difficult to understand how polygyny could be a solution to the
unjust treatment of orphans. To solve this difficulty, these exegetes complet-
ed the “missing response” of the condition. This solution is demonstrated by
Tafsir al-Jalalayn4 (the Qurʾanic text is marked by bold letters):

And if you fear that you will not deal justly with the orphans, then ab-
stain from doing anything bad in their matter ( fa-taḥarrajtum min am-
rihim); and you should fear that you will not deal justly with women,
when you marry them ( fa-khāfū idhan an lā taʿdilū bayna-l-nisāʾ idhā
nakaḥtumuhunna), then marry those that please you of women, two or
three or four.

By this completion, which is also implied by Tabari’s fourth interpretive op-

tion, the exegetes created an analogy between orphans and women in terms of
the just treatment that both of these socially-weak groups need.

4 Suyuti and Mahalli, Tafsir al-Jalalayn, 97–8 (regarding v. 3) and 125 (regarding v. 129).

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Western scholars have had similar difficulties in understanding the mean-

ing of these verses in their proper historical context.5 W. Montgomery Watt,
accepting the traditional account that this verse was revealed shortly after
the Battle of Uhud (625), suggests that the crux of the problem was not the
large number of widows resulting from that battle but the many unmarried
girls now placed under the guardianship of uncles, cousins and other relatives.
Some of the guardians would keep their wards unmarried to enjoy unrestricted
control over their property. According to Watt, the Qurʾan probably did not
intend that the guardians themselves marry their wards, but that they had to
enable other suitors to marry them. Put differently, Watt, followed by Harald
Motzki, understands v. 3 as encouraging Muslim males to marry more than one
female orphan (preferably four, if they are able to support them), to “rescue”
as many as possible of these orphans from the oppression of their guardians.6
Part of the difficulty in understanding the abovementioned verses is that
the Qurʾan does not have a specific term for “guardian” and nowhere says
what kind of relationship (kinship of a certain degree or otherwise) should
exist between a guardian and a ward. It seems that Watt thought that in early
Islamic society the guardian would have been the closest male agnate (as later
in classical fiqh). In addition to controlling his ward’s property until the latter
became an adult, the role of the male guardian was to arrange the marriage of
his female wards (daughters, granddaughters, and others who fell under his
natural—or otherwise—guardianship).7
In spite of all this ambiguity, all law-schools have regarded v. 3 as providing
general permission for polygyny, without a necessary connection to the issue
of orphans. Muslim jurists explained away the apparent contradiction be-
tween v. 3 and v. 129 in a sophisticated manner. They argued that the justice or
equality towards co-wives that is obligated by v. 3 is a “material equality.” Thus,
a Muslim husband is required, inter alia, to provide the same level of marital
alimony (including housing, food and clothing) to all his wives and to divide

5 See, for example, Giladi, “Orphans,” Encyclopedia of the Qurʾān: “Q 4:3 deals with the permis-
sion, given to men, to establish (limited?) polygynous unions (with their wards? with other
women … in the context of their duty to treat their wards (specifically female ones?) justly.”
The question marks are in the original.
6 Giladi, “Guardianship,” Encyclopedia of the Qurʾān, citing the works of Watt and Motzki.
7 According to Giladi, “Guardianship,” support for this conclusion may be found in Q 2:237: “He
in whose hand is the bond of marriage” (alladhī bi-yadihi ʿuqdatu-l-nikāḥ), which the classi-
cal exegete Mahmud b. ʿUmar al-Zamakhshari (d. 1143) understands as the male guardian of
women.

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Case Study I—Polygyny 113

the time he spends with his wives equally between them. As for the equality
referred to by v. 129, the one that men will never be able to accomplish, the
jurists argued that it was an “emotional equality” (mayl al-qalb). As attested by
the hadith, even the Prophet confessed his inability to love his wives equally,
and asked Allah’s forgiveness for this human failing. The jurists argued that, if
the Prophet had been forgiven for this deficiency, even more so lay Muslims
are forgiven. The result of this argumentation is a consensus among all the law-
schools (Sunni and Shiʿi alike) that marriage of up to four wives is permitted,
conditional upon the husband’s equal “material” treatment of his wives. This
consensus has been demonstrated by the uninterrupted practice of polygyny
between the 7th and the 20th centuries (and to some extent even until the
present time).

Modern ijtihād on Polygyny

Modern ijtihād by professional jurists on the topic of polygyny is best rep-

resented by ʿAbduh’s exegesis.8 At the beginning of his commentary on the
polygyny verses, ʿAbduh portrays the abovementioned way in which classical
jurists explained away the apparent controversy between verses 3 and 129.
Then he continues:

Anyone who studies the two verses learns that the permission for po-
lygyny in Islam is severely restricted and is considered a necessity permit-
ted only to someone who needs it and only if there is certainty that he
will treat his wives equally and will not oppress [them]. If we consider,
in addition to this restriction, the corruptions that result from polygyny
currently, we will determine that it is impossible to educate a community
in which polygyny is prevalent. A home in which one husband has two
wives is improper and there is neither discipline nor order in it. In such
a home, the husband and his wives corrupt the house as if they are each
other’s enemy. In addition, the children become each other’s enemies. As
a result, the corruption caused by polygyny is transferred from individu-
als to families and from families to the community.
During the early period of Islam polygyny had benefits, most impor-
tant of which were kinship and family relations through marriage, which
strengthened the tribal society. During that period, polygyny caused less

8 ʿAbduh, Tafsir al-Qurʾan, 4:348–51.

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damage than today, because the religious belief of both sexes was strong
and the damage caused by one wife affected only her co-wife. Today how-
ever the damage passes from each co-wife to her child, to his father and
to the remaining relatives, and consequently she [a co-wife] inflicts hos-
tility between [all of] them. She inflames in her son hostility towards his
paternal brothers. She also encourages her husband to deprive the sons
born to him by her co-wife of their rights and he, in his stupidity, obeys
his most favored wife. As a result, corruption spreads in the family as a
whole. If I [ʿAbduh] was interested in specifying the damages brought
about by polygyny, I would have mentioned things [facts] that would
cause the believers to shiver, e.g. theft, adultery, lies, treason, cowardli-
ness, forgery and even murder, e.g. the murder of a father by his son, the
murder of a son by his father, of a wife by her husband and of a husband
by his wife. All that [i.e. the above-mentioned phenomena] takes place
and is established by courts of law. Consider, for example, the education
of a woman who does not recognize the value of a husband and of a child
and is ignorant of herself and of her religion. The only thing that such a
woman knows about her religion is superstitions and errors she has
learnt from other women of her kind, errors that each divine scripture or
prophet washes his hands of. If women received proper religious educa-
tion, which would make religion superior to [the inclinations of] their
hearts and jealousies, the community would not have suffered from po-
lygyny and its damage would have been restricted to the co-wives.
However, following what we witness and hear, there is no way to educate
a community while polygyny is spreading in it. The religious scholars
have to discuss this issue, especially the Hanafis, whose law-school is the
authoritative one [in Egypt]. They should not ignore that religion was
given for the maṣlaḥa of the people and for their good, and that preven-
tion of damage and of counter-damage (lā ḍarar wa-lā ḍirār) is among
the tenets of religion. If something [a legal permission] causes damage
that it did not cause in the past, there is no doubt that the law must be
changed and applied to the present situation, based on the principle that
“prevention of damages has a priority over the attainment of benefits”
(darʾ al-mafāsid muqaddam ʿalā jalb al-maṣāliḥ). He [ʿAbduh] said: “We
therefore learn that polygyny is strictly forbidden (muḥarram qaṭʿan)
whenever there is fear of the absence of equality between the
co-wives.” [RS]

Rida, who had transcribed ʿAbduh’s lectures on the Qurʾan at al-Azhar, which
were later published as Tafsir al-Manar, added his own view:

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Case Study I—Polygyny 115

Polygyny contradicts the natural foundation of marriage, according to

which a man has one wife who belongs to him in the same manner that
he belongs to her; polygyny however is a necessity that presented itself
to human society, especially among the fighting communities, such as
the Muslim one. It was permitted only because of necessity, conditional
upon the absence of deprivation and oppression. This topic has addition-
al aspects, i.e. the underlying reason for polygyny, as well as whether it is
possible for the rulers to prevent the evils (mafāsid) of polygyny by limit-
ing it where its damage is general, as it is in Egypt. Indeed, the number
of men married to more than one wife is higher in Egypt than in Syria
and Turkey, and moral corruption in Egypt is greater than that in these
countries. [RS]

The texts of ʿAbduh and Rida do not engage in a novel interpretation of the
Qurʾanic text per se. They implicitly accept the veracity of the classical inter-
pretation of the “polygyny verses.” The texts focus entirely on evaluating the so-
cial benefits and damages brought about by polygyny in modern times. ʿAbduh
and Rida’s perspective on polygyny rests on the principal distinction they make
between legal rules pertaining to religious worship, which are immutable, and
those pertaining to human transactions, which may be transformed with the
change of the particular historical circumstances that justified the original
Qurʾanic legislation.
ʿAbduh’s point of departure is that the original Qurʾanic permission for po-
lygyny is severely restricted, because it was designed for limited situations of
necessity (ʿAbduh did not explain what these situations were) and was con-
ditional upon equal treatment of the co-wives by their husband. Then he
explains the social benefits that polygyny provided for early Islamic society,
implying that these benefits are hardly relevant to modern circumstances, in
which Islamic societies have become less “tribal” and more “individualistic.”
Moving to the severe damages caused by polygyny to the fabric of modern
Muslim societies, which renders polygyny a kind of “social cancer,” ʿAbduh
attributes these increasing damages to the low level of religious belief and
education among the Muslim masses, especially among women. The neces-
sary conclusion is clear: if the social damages brought about by a practice per-
mitted by the fiqh outweigh its benefits, it is required to apply the law to the
current situation. ʿAbduh does not specify precisely how he expects the law
to be adjusted, yet Rida completes his mentor, stating that state rulers, in the
framework of siyāsa sharʿiyya, must restrict polygyny, if the latter causes social
damage. Rida adds another argument: polygyny contradicts the regime of mo-
nogamy sanctioned by “natural law.”

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Rida however changed his mind. In 1901, when his mentor ʿAbduh was still
alive, he cited excerpts from the contemporary English press that opposed
sexual permissiveness to support his argument that a number of European
women viewed polygyny as a solution to the ills afflicting their societies (it
should be noted, though, that these press pieces did not relate to polygyny di-
rectly). Rida argued that polygyny was better than the sexual abuse Western
women experienced, because Western males betrayed their duty to protect
women properly. In 1909, four years after ʿAbduh’s death, Rida expressed sup-
port for the permissibility of polygyny. He admitted that the ideal was a mo-
nogamous household and accepted that in case of extreme need, an otherwise
legitimate practice such as polygyny could be prohibited, but at the same time
he was convinced that polygyny could be very practical for certain men and
women. He added that ʿAbduh’s sharp criticism of polygyny was directed only
at some men who married and divorced frequently to satisfy their lust. He con-
cluded that legalization of polygyny would solve the problem of sexual permis-
siveness and compensate for the death of numerous men in wars. He repeated
this position in his last work—“A Call to the Fair Sex” (Nidāʾ lil-jins al-laṭīf)—
published in 1932.9
ʿAbduh’s reformist approach (called “religious utilitarianism” by Hallaq) to
the topic of polygyny has been continued, albeit in different forms, by Muslim
intellectuals who are not professional religious scholars, but rather academ-
ics (called “religious liberals” by Hallaq). The main difference between their
methodology and that of ʿAbduh is that they engage in a renewed textual
analysis of the Qurʾan. Fazlur Rahman, one of the most distinguished among
this group of academics, situates his understanding of the “polygyny verses”10
in the historical context of the Prophet’s battles during the Medinan period,
which increased the number of orphans in the Muslim community consider-
ably. A second context in which Rahman locates v. 3 is the wider Qurʾanic
theme of caring for orphans, a recurring topic in the Meccan period. He ex-
plains that Q 4:3 says that “since guardians do not deal honestly with orphaned
women’s properties, then they may marry them, up to four, provided they can
do justice among them.”11 Rahman does not explain how the marriage of the

9 Zaman, Modern Islamic thought, 196–8.

10 Fazlur Rahman, Major themes of the Qurʾan, 47–8. See also Saeed, Reading the Quran,
102–3.
11 Rahman’s translation does not account for the fact that the verse uses first the term “or-
phans” (yatāmā) and then “women” (nisāʾ). One may suggest that, if his translation is
correct, the Qurʾan should have said “then marry those that please you of them (standing
for “orphans”), rather than “then marry those that please you of women.”

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guardian to up to four of his female wards was supposed to rectify his not
dealing honestly with their properties. Amina Wadud, a Muslim-American
academic who has the same understanding of v. 3 as Rahman, tries to clarify
this point.12 She explains that such a marriage could balance the man’s duty
to provide the matrimonial alimony of the female orphans, as their husband,
with the control of their properties that he enjoys as their guardian. Wadud
probably means that if the guardian used his wards’ properties to finance his
private needs anyway, which was certainly immoral, if not illegal, his wards
were relatively better off if he spent from these properties also on their liveli-
hoods, as his wives.
Rahman explains that his understanding of v. 3 is correct, because v. 127,
which was revealed before v. 3, treats the problem of “orphan women to whom
you [male guardians -RS] do not give their due [their properties? Alimony out
of their properties? Dower? RS], but you would rather marry them.” Thus, by
way of analogy, v. 3 should be understood as also referring to the marriage of
orphan girls.13
The way classical jurists explained away the contradiction between verses 3
and 129 is poor “from the viewpoint of normative religion,” contends Rahman,
because it leaves the just treatment of the co-wives to the conscience of the
husband-guardian, “even though in the nature of things it is certain to be vi-
olated.” Rahman also mentions the Modernist viewpoint, which infers from
the statement in v. 129—i.e. that it is impossible for a man to treat his wives
equally—that v. 3 was intended to provide only a temporary solution for the
problem of the large number of marriageable orphan girls in Muslim Medinan
society. For Rahman, however, the true way to reconcile v. 3 with v. 129 is to
understand that the former refers to the legal level, while the latter, by saying
“you will never be able to be equal between wives, even if you should strive
[to do so],” refers to the desired moral level. Thus, v. 129 states the ideal—­
monogamous marriage—that Muslims must strive to realize. Setting a moral

12 Wadud, Qurʾan and women, 82–5. According to the hermeneutical model developed by
Wadud (ibid., 129–30), any Qurʾanic verse that deals with women must be analyzed: (1) in
its context; (2) in the context of other Qurʾanic discussions of the same theme; (3) in light
of similar linguistic and syntactical Qurʾanic forms and of Qurʾanic overriding principles,
and (4) in light of the world view of the Qurʾan.
13 Rahman ignores the fact that v. 127 refers to orphans twice: first, “yatāmā al-nisāʾ to whom
you do not give what is decreed for them—and [yet] you desire to marry them;” and
second, “that you maintain for orphans (al-yatāmā) [their rights] in justice.” V. 3 however
refers to al-yatāmā and not to yatāmā al-nisāʾ, as in v. 127.

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ideal was required because it was impossible to prohibit polygyny at one

stroke, as was the case with slavery.
Rahman further explains that any Qurʾanic legal pronouncement is accom-
panied by its ratio legis, which should be understood in light of the “circum-
stances of revelation” (asbāb al-nuzūl). Pre-modern jurists did understand the
relevance of the “circumstances of revelation” for Qurʾan interpretation, yet
they erred by contending that Qurʾanic law should stay intact even if its ratio
legis changed or became irrelevant.
Shahrur provides the most far-reaching expression of this liberal-academic
approach.14 Like Rahman and Wadud before him, he starts by arguing that
the textual context of v. 3 is the unfair treatment of orphans against the back-
ground of the multiplicity of orphans created in the Muslim community of
Medina following the Prophet’s battles. Unlike Rahman and Wadud, he argues
that v. 3 does not refer to the guardian marrying up to four of his female wards,
but rather to men marrying widowed mothers. He supports his interpretation
by the phrasing of v. 127 (which arguably addresses the same theme, as men-
tioned above), which uses the term yatāmā al-nisāʾ. This term, grammatically
a genitive construct, must be translated as “the orphans of women,” and may
not be translated as “female orphans” (as done by Rahman and Wadud). In
addition, the term nisāʾ refers to mature women and therefore cannot apply
to orphans, who have not yet attained sexual maturity. Thus, the classical ex-
egetes of the Qurʾan erred in understanding this verse, and consequently, in
understanding v. 3.15
Returning to v. 3, Shahrur understands it as directed solely to Muslim
males who are already married to one wife and have children with her. These
males are encouraged to show compassion and generosity towards widowed
mothers—“who have lost their husbands, the provider of the family and
the guardian of their children, and who are at the mercy of whatever suitor
is willing to take them … poor women who have to care for their orphaned
­children—by marrying them.” The result will be that the husband will join the
widows to his household as his new wives, and care for their children as his
own. The fact that v. 3 says: “marry those that please you of women, two or
three or four,” rather than “marry up to four women” or “marry from one to
four women” is evidence, according to Shahrur, that v. 3 addresses solely males

14 Shahrur, Qurʾan, 260–72.

15 There is a difficulty with Shahrur’s interpretation: the subject of the restrictive (or subor-
dinate) clause “to whom you do not give what is decreed for them—and [yet] you desire
to marry them” cannot be “orphans” (male plural), because all the personal pronouns and
verbs in the restrictive clause use the female plural.

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Case Study I—Polygyny 119

who are already the husbands of one wife. Yet, the verse limits that permission.
If such a husband fears that this “adoption” of widows and their children by his
original conjugal family will create emotional tension within his family and
an economic crisis, namely a situation in which he will not be able to support
the orphans on an equal level with his own children, then he must be satisfied
with his original wife. Put differently, if all the conditions mentioned in v. 3
(i.e. the husband is already married to one wife and has children with her; he
marries up to three widows and supports them and their children equally to
his original wife and biological children) are not fulfilled, the polygynous mar-
riage is void.
Shahrur concludes that the justice or equality referred to by v. 3 is the equal-
ity between the husband’s biological children and his “adopted” orphans
rather than equality between co-wives. V. 3, if understood properly, should be
understood as “the adoption verse” rather than as “the polygyny verse” and as
abolishing polygyny rather than establishing it. Islamic jurisprudence erred by
sanctioning polygyny and disregarding the divine ratio legis of v. 3. According
to his “theory of limits,” the divine decree, expressed in the Book and the sunna,
sets a lower limit or an upper limit for all human actions and natural phenom-
ena. Within these limits, human-based legislation can take place. Shahrur pro-
poses that modern Islamic states prohibit polygyny when the general situation
is normal (which is the “lower limit”). If an abnormal situation develops in
which the number of marriageable females exceeds the number of free males
considerably, e.g. as the result of a war, then the state should grant temporary
permission for polygyny (hence, the “upper limit”). If the male-female ratio
returns to normal, the state should withdraw its permission for polygyny.16
Qutb accepts the traditional interpretation of verses 3 and 129.17 Relying on
the hadith, he refers to the case in which ʿAʾisha, the Prophet’s wife, was asked
about the meaning of v. 3. She explained that the orphans who were not treated
justly to which the first part of the verse refers were orphaned females whose
guardians desired them because of their beauty and property, and subsequently

16 On Shahrur’s “theory of limits,” see http://www.free-minds.org/applying-concept-limits

-rights-muslim-women [accessed 17 December 2015]. Shahrur’s interpretation of the
“polygyny verses” leaves a number of doubts. If v. 3 speaks about married men marrying
up to three widowed mothers, why does the final part of the verse speak about purchasing
concubines? In addition, Shahrur assumes that the orphans continue to live with their
mothers who have to provide for them. If we accept that the Arab social order was patri-
lineal, were not the paternal relatives of the orphans obliged to support them? Finally,
Shahrur ignores v. 129 altogether.
17 Qutb, In the Shade of the Qurʾan, 3: 29–38, 326–34, respectively.

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married them without providing them with dower, as specified in v. 127. She
further explained that v. 127 was revealed to the Prophet after his followers had
asked him about the meaning of v. 3. Thus, the latter instructs such guardians
to marry other women, conditional upon treating them equally. Adopting the
classical juristic solution, Qutb contends that the equality required by the final
part of v. 3 is material, unlike the emotional equality referred to in v. 129, the
attainment of which was beyond the capabilities of the Prophet according to
his own confession, let alone ordinary believers. Thus, v. 129 may not be cited,
as some Modernists do, as evidence that the Qurʾan prohibits polygyny, be-
cause Allah does not permit a certain act in one verse and then abolishes it in
another. Those who raise such arguments against the Qurʾan are both ignorant
and arrogant, because they doubt Allah’s supreme logic.
Qutb follows his textual analysis with a “ ʿAbduh-style” weighing of the
benefits and disadvantages of polygyny. He explains that the permission for
polygyny intends to deal with situations of necessity: a disproportional male-
female ratio in society; the wife cannot satisfy her husband’s sexual needs, due
to her age or illness; or, the wife is barren. Qutb adds that it is beneficial for
Muslim societies to make the most of the fertility of males, which often lasts
until the age of seventy. In addition, the future may reveal other benefits of
polygyny which human perspective is unable to grasp currently.
There are three ways to handle the above-mentioned situations of necessity,
argues Qutb. The first is to do nothing, i.e. to maintain monogamy. In a situa-
tion of an unbalanced male-female demographic ratio, the consequence will
be that many females will lose their chance to marry and have children. The
second is to allow men to have short-lived relationships with women outside
of marriage, as is common in Western societies. This is an immoral solution,
since it involves adultery, which is a severe offense against Allah. The third way
is to allow polygyny, conditional of course on equal material treatment of the
wives. This may not be the optimal solution, especially from the perspective of
the first wife and her children, but, compared to the other options, it is the least
of evils, the most moral and hence a well-qualified solution to the problem.18
The “religious liberals” Wadud and Shahrur find the utilitarian arguments
in favor of polygyny repulsive, because they stem from a paternalistic and
male-focused perspective. The assumption that males are the sole providers
and therefore women are better off in polygyny than as single is erroneous,
because currently many women participate in the labor force. Why do think-
ers such as Qutb refer only to male sexual needs and to female infertility and

18 On preferring the least of two evils as a juristic principle among reformist Salafis, see Nafi,
“Fatwa and war,” 94–5.

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Case Study I—Polygyny 121

sexual deficiency? Does the Qurʾan mention these as grounds for polygyny at
all? Males are often the ones who are infertile, sexually impotent or sick. Are
we going to allow women to marry more than one husband in such circum-
stances, they ask rhetorically?
Finally, we arrive at Qaradawi. In principle, he rejects the feminist interpre-
tation of the Qurʾan, which rests on the claim that the traditional exegesis of
this source is masculine and patriarchal. He argues that Islam does not support
an Islamic masculinity as opposed to an Islamic femininity, only the Islamic
personality; males and females are interdependent and complete each other.
As for modern female interpreters, he counts the basic Islamic sciences, profi-
ciency in which is required for correct Qurʾanic interpretation, implying that
these interpreters, many of whom are not Arab and a few even not Muslim,
are not qualified for ijtihād. Moreover, their method seeks to separate the text
from its author, claiming that the Qurʾanic text is independent from Allah and
may be interpreted as any ordinary text, using tools of literary criticism and
anthropology. Qaradawi emphasizes that the foundation of the Qurʾan is those
verses whose meaning is definite and therefore must inform the interpretation
of other verses whose meaning is probable.19
Qaradawi declares that he is not against gender equality but that he ob-
jects to the idea of gender resemblance or congruence (tamāthul aw taṭābuq).
Females are equal to males in their religious duties, honor and eligibility for
basic rights. However, males and females each have their physical and mental
particularities, which make them superior to the other sex in certain fields, as
indicated by Q 4:34. It is impossible to compare women, who menstruate, give
birth and breast feed, to men. Thus, the legal rights granted to each sex must
reflect its particularities and females need legal leniency in specific fields.20
Qaradawi’s take on polygyny21 is quite similar to that of Rida’s late position
and that of Qutb, yet more methodical, more sophisticated and better argued.
Textually speaking, Qaradawi holds that v. 3 is a definite text permitting po-
lygyny. He does not refer at all to the historical context in which this permis-
sion was granted, i.e. the just treatment of orphans. For Qaradawi, claiming
that v. 129 contradicts v. 3 and actually abrogates it is erroneous. Here he adds
to the discussion a textual indicator not mentioned by the other thinkers re-
viewed up to this point, i.e. the last part of v. 129: “do not incline completely

19 Khatib, Qaradawi, 292.

20 Ibid., 296–7.
21 Qaradawi, al-Ijtihad fi al- shariʿa, 164–8. See also idem, Qurʾan, 318–19; and his legal
opinion, http://qaradawi.net/fatawaahkam/30/1449-2011-10-09-14-29-16.html [accessed
26 December 2011].

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122 Chapter 5

[toward one wife] and leave another hanging.” According to Qaradawi, we may
infer from the fact that the Qurʾan uses the phrase “complete [emotional] in-
clination” (kull al-mayl) towards one of the co-wives that partial inclination is
permitted and forgiven (considering that the Prophet himself was incapable of
feeling the same towards all his wives).
Qaradawi supports his argument concerning the absence of contradiction
between verses 3 and 129 with a number of circumstantial indicators. First,
the shariʿa would never permit a harmful act22 and the benefits of any act the
shariʿa permits always outweigh its harms;23 second, the Qurʾan never con-
tradicts itself; third, such a claim assumes a mistaken understanding of the
Qurʾan by the Prophet and the companions or, worse, deliberate infringement
of the divine message on their part. This is again inconceivable; and, last, there
has been a general and uninterrupted consensus on the permissibility of po-
lygyny among the scholars since the early days of Islam. This scholarly con-
sensus has been supported by the continuous practice of polygyny in Muslim
communities (istaqarra ʿalayhi ʿamal al-umma). This combination of schol-
arly and practical consensus (ijmāʿ fiqhī wa-ʿamalī) provides certainty that the
common understanding of the “polygyny verses” is correct, because the entire
community is immune from error. Thus, the abovementioned combination
of indicators turns the permission for polygyny to “a religious issue which is
known by necessity” (maʿlūm min-l-dīn bi-l-ḍarūra). Put differently, the knowl-
edge about the permissibility of polygyny forces itself on the believer’s mind
and thus is certain.
Having dealt with the textual aspect of the issue, Qaradawi moves on to dis-
cuss the aspect of maṣlaḥa. Here, similarly to Qutb, he presents the pros and
cons of polygyny, arriving at the same conclusion that polygyny is a balanced,
and perhaps more important, a moral solution to demographic problems and
the various needs of males and females. He refers to the legislation promul-
gated by a number of Muslim states that restricts polygyny or prohibits it al-
together. Is it legitimate for a ruler within the framework of siyāsa sharʿiyya
to prohibit a legal and permissible institution on the grounds that the latter
is socially harmful? Qaradawi views such states as imitators of the West. A
ruler may restrict a certain act temporarily, i.e. under certain conditions, dur-
ing certain times or for a certain group of people, if he finds that this act is

22 Qaradawi refers the reader to Q 7:157: “Those who follow the Messenger … who enjoins
upon them what is right and forbids them what is wrong and makes lawful for them the
good things and prohibits for them the evil.”
23 Qaradawi refers the reader to Q 2:219 that says that the evils caused by wine and gambling
outweigh their benefits.

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Case Study I—Polygyny 123

harmful.24 However, he is not authorized to prohibit it generally, absolutely

and permanently. Such authority lies exclusively with Allah.25 The ijtihād of
those states that have prohibited polygyny and at the same time do not apply
the ḥadd punishment on adultery is both seriously distorted and pitiful, con-
cludes Qaradawi.

Conclusion

Qaradawi’s traditional stance and his respect for the heritage of Islamic ju-
risprudence is demonstrated by the fact that, like Rida and Qutb, and un-
like Rahman, Wadud and Shahrur, he abstains from reinterpretation of the
Qurʾanic text and accepts the traditional interpretation of the “polygyny verses”
as a given. Let us review Qaradawi’s treatment of the topic of polygyny in light
of his juristic methodology, analyzed in Chapters 2–4. The first and obvious
step would be to discern that classical jurists have already discussed the issue
of polygyny and thus it is not a novel theme. The next step would be to see
whether there was a conflict of juristic opinions on the permissibility of po-
lygyny. If there was such a conflict, a selective or creative ijtihād will take place.
Alternatively, if there was a juristic consensus, renewed ijtihād is redundant.
In the case of polygyny, its permissibility “is known from religion by necessity,”
because it is supported by a definite text supported in turn by an uninterrupted
scholarly and communal consensus. Put differently, there is certainty about
the correctness of the rule and therefore no room for any ijtihād. Moreover,
legal rules supported by this kind of consensus constitute the “constants of the
community” (thawābit al-umma) and therefore have become part and parcel
of the legal and moral compass of the Islamic community and one of its iden-
tity marks, which distinguish it from non-Muslim communities. As such, the
symbolic and cultural values of such legal rules are as important (if not more
important) as their legal and social significance, and the Islamic community
must not desert or reform them. It is not redundant for the mufti in such cases
to specify the social benefits of the rule, for the sake of those believers who still

24 As examples, Qaradawi mentions Caliph ʿUmar’s prohibition on slaughtering animals on

certain days, to prevent shortages of meat; and the modern Egyptian state’s restrictions
on the growing of cotton, to ensure that Egyptian farmers grow food plants for the con-
sumption of the population.
25 Qaradawi quotes here Q 9:31, which condemns the Peoples of the Book for considering
their religious leaders as gods.

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124 Chapter 5

have doubts. This is because maṣlaḥa is located at the same place where Allah’s
will is found, Qaradawi concludes.
Zaman argues that “the fact that Qaradawi continues to defend polygyny
more than sixty years after Rida had done so would seem to cast a pall on his re-
formist thought. Nor does the modern-sounding idiom that they both employ
in defense of this institution do much to reassure their female readership.”26
This claim assumes that Qaradawi is committed to the agenda of liberal femi-
nism and thus is expected to apply it consistently. In other words, this claim
measures Qaradawi by a Western-liberal yardstick. What I suggest as an al-
ternative is to see Qaradawi’s faithfulness to his juristic methodology and the
consistency with which he applies it. In addition, Qaradawi is committed to
preserving what he perceives as the unique characteristics of Islamic culture;
characteristics that he thinks secure the cohesiveness of Islamic societies in
the face of a Western cultural onslaught. Finally, Qaradawi realizes that the
topic of polygyny, because of the Qurʾanic source of its legitimization, is a cor-
nerstone in the political struggle over the role of religion, and its authorized
representatives, the ʿulama‌ʾ, in the modern state. As a scholar whose life mis-
sion is to return the professional ʿulama‌ʾ to their traditional position as public
leaders, he is not willing to jeopardize the success of this mission by making
any concession regarding the permissibility of polygyny.

26 Zaman, Modern Islamic Thought, 310.

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 Chapter 6

Case Study II—The Impact of a Western Wife’s

Conversion to Islam on the Validity of Her Marriage
to Her Non-Muslim Husband

Introduction

During the meeting of the European Council for Fatwa and Research in 2001,
Qaradawi was asked about married women in the West who convert to Islam
prior to their husbands, or, worse, without their husbands. According to Islamic
law, the marriage contract of such a wife is dissolved immediately after her hus-
band refuses to follow her conversion, or not later than the termination of her
waiting period, because the marriage of a non-Muslim husband to a Muslim wife
is forbidden in Islam. Such a wife faces a torturous dilemma: on the one hand,
she wishes to fulfil her Islamic belief; on the other, she is reluctant to lose her
husband and children, whom she loves, and thus is deterred from carrying out
her conversion. Is there a legal solution to this difficult problem in light of the
Qurʾan, the sunna and maqāṣid al-sharīʿa?
Qaradawi responded to this query in a long and detailed legal opinion.1 He
framed his response in the following way:

1. Qaradawi admits that the preponderant legal opinion (including his own
opinion, which he expressed for a long period) rejects the possibility that
such a converted wife maintain conjugal life with her husband. He reminds
his readers that, during an Islamic legal conference conducted in the United
States in the 1970s, the Sudanese Islamist Hasan al-Turabi voiced an alterna-
tive opinion on that matter, i.e. that such a convert wife may remain with her
husband. Turabi was consequently attacked by a number of the participants,
including Qaradawi, on the ground that he violated the decided juristic and
practical consensus of the Muslim community.2

1 Qaradawi, “Islam al-marʾa dun zawjiha.” The legal opinion first appeared in an internet version on
islamonline.net. A later printed and almost identical version of the fatwa, which I use in this chap-
ter, appears in the third volume of Qaradawi’s legal opinions. In the printed version, he added at
the end a long citation from Ibn al-Qayyim’s Iʿlam al-muwaqqiʿin about the permissibility of basing
the issuance of legal opinions on the positions of the companions and the followers. For a concise
analysis of this legal opinion, see Zaman, Modern Islamic thought, 210–14; Zahalka, Shariʿa, 143–6.
2 Qaradawi, “Islam al-marʾa dun zawjiha,” 623–4.

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126 Chapter 6

2. Notwithstanding, no one possesses perfect knowledge and learning is a

continuous process.3
3. It is small wonder then, Qaradawi says, that he chooses to reconsider the
nine opinions that appear in Ibn al-Qayyim’s discussion of that question
in his work Ahkam ahl al-dhimma.4 Qaradawi details these opinions, in-
dicating that Ibn al-Qayyim, following his mentor Ibn Taymiyya, opted
for the sixth opinion.5
4. Qaradawi analyses Ibn al-Qayyim’s discussion of the topic.6
5. He moves forward to discuss Q 60:10, which is presented as supporting
evidence for an immediate separation between the spouses under these
circumstances.7
6. He discusses dissenting opinions (rejecting immediate separation be-
tween the spouses), based on an alternative interpretation of Q 60:10, as
well as on reference to Q 2:221.8
7. A comment (taʿqīb) by Qaradawi on Ibn al-Qayyim’s investigation. He
concludes that the scholarly consensus prohibits a new marriage
(between a Muslim female and a non-Muslim male) but not the continu-
ation of an existing one, as in our case.9
8. Qaradawi returns to the primary sources that informed Ibn al-Qayyim’s
definition of the abovementioned nine opinions. He criticizes Ibn al-
Qayyim for limiting his thorough inquiry to the evidence supporting the
sixth opinion (which was the opinion of his master Ibn Taymiyya). He
argues that the opinion supported by Ibn al-Qayyim creates practical dif-
ficulties for contemporary realities.10
9. By basing himself on two traditions, one attributed to ʿUmar and the
other to ʿAli b. Abi Talib (d. 661, henceforward ʿAli), which he thinks are
congruent with the true meaning of Q 60:10, Qaradawi concludes that the
correct legal opinion does not necessitate immediate separation between
the spouses. This opinion serves the needs of Muslim female converts in
Europe and eases the difficulties they face.11

3 Ibid., 624.
4 Ibn al-Qayyim, Ahkam ahl al-dhimma, 2:640–95.
5 Qaradawi, “Islam al-marʾa dun zawjiha,” 624–7.
6 Ibid., 627–30.
7  Ibid., 630–1.
8 Ibid., 631–5.
9 Ibid., 635.
10 Ibid., 636–8.
11 Ibid., 638–40.

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Case Study II—Impact of Western Wife ’ s Conversion 127

Table 1 The nine opinions discussed by Ibn al-Qayyim

Number of Content of opinion Evidence for opinion Ibn al-Qayyim’s take on

opinion the opinion

1 Marriage is dissolved Ibn Hazm ascribed Ascribing this opinion

immediately following that opinion to to ʿUmar is a mistake.
the wife’s conversion ʿUmar b. al-Khattab There are alternative
to Islam, since the (henceforward, narrations from
conversion of both ʿUmar); it was held by ʿUmar (see below)
spouses should a number of followers
be pronounced (tabiʿun)
simultaneously
2 Marriage is dissolved This was the opinion Not specified
immediately upon the of Abu Hanifa, based
husband’s refusing an on a tradition
offer to convert according to which
ʿUmar offered to
convert ʿUbada al-
Taghlibi to Islam,
following his wife.
Upon ʿUbada’s refusal,
ʿUmar separated the
couple.
3 If marriage has been Malik b. Anas Not specified
consummated, it is
dissolved after the
termination of the
wife’s waiting period
4 If marriage has been Ibn Shubruma Not specified
consummated, it is
dissolved immediately
5 If marriage has been Al-Awzaʿi, al-Zuhri, Not specified
consummated, it is al-Layth, Ibn Hanbal,
dissolved after the al-Shafiʿi and Ishaq
termination of the
wife’s waiting period,
whether the convert is
the wife or the husband

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128 Chapter 6

Table 1 The nine opinions discussed by Ibn al-Qayyim (cont.)

Number of Content of opinion Evidence for opinion Ibn al-Qayyim’s take on

opinion the opinion

6 The converted wife According to the The couple will not

may wait (tantaẓir companion ʿAbd Allah resume conjugal life
wa-tatarabbaṣ) for her b. al-Khatmi, ʿUmar until the husband
husband’s conversion, offered this option to converts too. This
even for years a Christian married opinion is the most
woman who had correct (aṣaḥḥ
converted to Islam al-madhāhib) and
supported by the
sunna; it is also the
opinion chosen by
Ibn Taymiyya
7 As long as the female Two similar narrations
convert has not left from ʿAli, one by Saʿid
her place of abode or, b. al-Musayyab and the
alternatively, the place second by al-Shaʿbi
to which she emigrated
(dār hijratihā, i.e.
Medina), her husband
has “the strongest right”
regarding her
8 The marriage remains Al-Zuhri
intact unless the ruler
separates the couple
9 The converted wife Da‌ʾud b. ʿAli, Ibrahim
continues to cohabit al-Nakhʿi and Hammad
with her husband, b. Abi Sulayman
but the latter is
prohibited from having
sex with her

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Case Study II—Impact of Western Wife ’ s Conversion 129

Other scholars have challenged Qaradawi’s fatwa. One of them was ʿAbd al-
ʿAzim al-Matʿani (d. 2008), a lecturer at the Arabic Department of al-Azhar
and an old acquaintance of Qaradawi since the time they were both students
at that institution. In a long essay,12 al-Matʿani discusses Qaradawi’s evidence
and disputes his conclusions. In what follows, I compare these two legal opin-
ions according to the evidence they present, mainly from the Qurʾan and the
hadith.

Evidence from the Qurʾan

Al-Matʿani claims that Qaradawi’s opinion, i.e. that the wife converted to Islam
may remain with her non-Muslim husband, contradicts two explicit verses:
2:221 and 60:10. The first verse says:

And do not marry polytheistic women until they believe. And a believing
slave woman is better than a polytheist, even though she might please
you. And do not marry polytheistic men [to your women] until they
believe. And a believing slave is better than a polytheist, even though
he might please you. Those invite [you] to the Fire, but Allah invites to
Paradise and to forgiveness, by His permission. And He makes clear His
verses to the people that perhaps they may remember.

Qaradawi refers to this verse only briefly, arguing that it is irrelevant to the
case at hand, because it discusses a new marriage between a Muslim male or
female and an infidel and does not apply to an existing marriage between a
Muslim and a non-Muslim, as in our case. On the contrary, al-Matʿani finds in
the verse a definitive rule and a certain prohibition of a marriage between a
Muslim husband and a non-Muslim wife and vice versa. The only exception
is a woman from the People of the Book, who is permitted in marriage for a
Muslim male (Q 5:5). Thus, the Qurʾan exegetes, both pre-modern and modern,

12 Al-Matʿani, “Islam al-marʾa dun zawjiha.” For this study, I used the internet version of the
essay that appeared on islamonline.net but is not available there anymore. A press report
on al-Matʿani’s opposition to Qaradawi’s position on this matter appeared in al-Sharq al-
Awsat on 10 September 2004; see http://archive.aawsat.com/details.asp?issueno=8800&
article=191982#.VnfaAr_2RBg [accessed 21 December 2015].

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130 Chapter 6

testify to the existence of a consensus regarding this issue.13 The main reason
for the prohibition is the fear that the non-Muslim husband will have a nega-
tive influence on the wife’s belief. The Qurʾan itself forbids any tolerance in this
respect by stating that a believing slave is better than a non-Muslim free man
and by claiming that a non-Muslim spouse leads his/her Muslim counterpart
to “the fire” [of hell].
The second verse, Q. 60:10, which is more central to the case, reads:

O you who have believed, when the believing women come to you as
emigrants, examine them. Allah is most knowing as to their faith. And if
you know them to be believers, then do not return them to the disbeliev-
ers; they are not lawful [wives] for them, nor are they lawful [husbands]
for them. But give the disbelievers what they have spent. And there is
no blame upon you if you marry them when you have given them their
due compensation. And hold not to marriage bonds with disbelieving
women, but ask for what you have spent and let them ask for what they
have spent. That is the judgment of Allah; He judges between you. And
Allah is Knowing and Wise.

Historically, the early Qurʾan exegetes related the verse to the period follow-
ing the Hudaybiyya treaty between Muhammad and his Meccan enemies,
which facilitated the migration of additional converts to Islam from Mecca to
Medina, as well as the migration of those Medinans who were not interested in
converting to Islam from Medina to Mecca. Qaradawi treats this verse in length
in the framework of his analysis of the discussion that appears in the text of
Ibn al-Qayyim. There were classical jurists who regarded the verse as evidence
for immediate separation between the spouses, while others claimed that no
one among the companions and the followers understood the verse as requir-
ing an immediate separation. The following table summarizes the conflicting
opinions as to the text of Q 60:10:

13 As for classical exegetes, al-Maṭʿani cites al-Qurtubi (d. 1273), Ibn ʿAttiyya (d. 1146) and
Abu Hayyan (d. 1344). The modern exegetes he refers to are Qutb, al-Shawkani and Ibn
ʿAshur.

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Case Study II—Impact of Western Wife ’ s Conversion 131

Table 2 Interpretations of Q 60:10

Textual evidence from Supporters of immediate Opponents of immediate

Q 60:10 separation separation

“do not return them This means that if the This text does not prevent the
[the Muslim female female Muslim emigrant from
female Muslim emigrant is
emigrants] to the waiting until her husband
married, she is not returned
disbelievers” converts to Islam and joins her
to her non-Muslim husband
who remained in Mecca in Medina
“there is no blame That the text permits aThe permission granted to a
upon you if you Muslim male to marry a Muslim male to marry a Muslim
marry them” female Muslim emigrant female emigrant is conditional
(after compensating herupon the termination of
non-Muslim husband in the waiting period and the
Mecca for the dower he emigrant’s will; the emigrant
may choose between marrying
paid for her) testifies that
a Muslim man or waiting for
by the act of migration the
the conversion of her original
emigrant was released from
her marriage bond with Meccan husband. If the latter
her non-Muslim husband,converts, there are two opinions:
one, the couple resume their
especially if she had her
menstrual period on theoriginal marriage contract,
which remains intact; and two,
way from Mecca to Medina
the couple must contract a new
marriage, because the original
one was dissolved automatically
upon the wife’s conversion and
the termination of her waiting
period
“And hold not to That marriage bonds The text prohibits Muslim
marriage bonds with between Muslim males males from holding to marriage
disbelieving women” and their disbelieving bonds with disbelieving women
wives should be terminated only if the latter persist in their
immediately proves that refusal to convert to Islam. The
marriage bonds between husband however may wait until
Muslim females and their his wife’s conversion to Islam.
disbelieving husbands must In this case he will resume his
be terminated immediately original marriage contract
as well with her

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Table 2 Interpretations of Q 60:10 (cont.)

Textual evidence from Supporters of immediate Opponents of immediate

Q 60:10 separation separation

“they are not lawful This statement testifies that This statement testifies that
[wives] for them, non-Muslims are prohibited non-Muslims are prohibited as
nor are they lawful as spouses for Muslims at spouses only as long as they
[husbands] for them” all times abstain from converting to
Islam

While Qaradawi no doubt supports the position of the “opponents of immedi-

ate separation,” al-Matʿani is one of the “supporters of immediate separation.”
Rejecting the distinction made by Qaradawi between Q 2:221 (which relates to
new marriages between Muslims and non-Muslims) and Q 60:10 (which relates
to existing marriages of female converts to Islam with non-Muslim husbands),
al-Matʿani holds that this distinction is not sustained by the Qurʾanic text and
that the two verses support each other. The phrase “do not return them to the
disbelievers” in Q 60:10 is similar to the phrase “do not marry polytheistic men
[to your women] until they believe” in Q 2:221; the phrase “hold not to marriage
bonds with disbelieving women” in Q 60:10 is similar to the phrase “do not
marry polytheistic women until they believe” in Q 2:221.
Al-Matʿani adds that the phrase “there is no blame upon you if you marry
them” in Q 60:10 clearly indicates that the marriage bond between the female
convert to Islam and her disbelieving husband was dissolved immediately
upon her conversion (al-ʿiṣma al-zawjiyya … qad zālat fi al-ḥāl). Otherwise,
Allah would have not permitted the Muslims to marry these female converts.
In this verse, Allah handed down his rule by a clear expression that is not open
for interpretation (… naṣṣa Allāh ʿalayhi fī ʿibāra muḥkama lā tataḥammal al-
ta‌ʾwīl). Moreover, al-Matʿani cements his contention by two linguistic argu-
ments: the first is that the Qurʾan, in the phrase “they are not lawful [wives] for
them (lā hunna ḥillun lahum), nor are they lawful [husbands] for them (wa-
lā hum yaḥilluna lahuma),” uses in reference to wives the noun form while
in reference to husbands it uses the verb form. According to al-Matʿani, the
noun form expresses constancy, permanence and certainty (thubūt, dawām
wa-qaṭʿ), which makes the rule pertaining to wives more authoritative.
The second argument is that in the phrase “[t]hat is the judgment of Allah

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Case Study II—Impact of Western Wife ’ s Conversion 133

(dhālikum ḥukm Allāh),” the plural form is used for “that” rather than the sin-
gular form (dhālika). This use clarifies that we are dealing here with a divine
clear-cut rule.
In conclusion, al-Matʿani holds that this legal question is answered by a
clear Qurʾanic rule: The wife’s conversion to Islam brings about an immediate
dissolution of her marriage contract; the Qurʾan leaves no option for such a
female convert to wait for her husband’s conversion. If the husband converts
at a later stage, he has to conclude a new marriage with her. Thus, religious
scholars must leave this topic outside the spectrum of ijtihād.

Evidence from the Prophetic Sunna

One main narration relates the Prophet to the topic under discussion. Zaynab,
the Prophet’s daughter, was married to al-Rabiʿ b. al-ʿAss in Mecca before the
Hijra. She converted to Islam and immigrated with her father to Medina in 622.
Her husband, who did not convert with her, remained in Mecca. It was only six
years later, subsequent to the Hudaybiyya treaty, that al-Rabiʿ joined his wife.
When he arrived in Medina, still an infidel, Zaynab, who had waited for him all
these years, asked her father whether al-Rabiʿ could join her in her house. The
Prophet responded: “He is your husband but he will not ‘come’ to you (lā yaṣilu
ilayki).”14 After six years (or two, according to another version), al-Rabiʿ con-
verted to Islam and the couple resumed their conjugal life, by way of continua-
tion of their original marriage contract (according to the interpretation of Ibn
Taymiyya15 and others, based on a report from ʿAbd Allah b. ʿAbbas, d. 687),16
or by contracting a new marriage (according to other opinions).
Qaradawi, following Ibn Taymiyya and Ibn al-Qayyim, regards this tradi-
tion as evidence that the Prophet did not regard a time gap (even a long one)
between a wife’s conversion to Islam and that of her husband as a ground for
the dissolution of the marriage. If the wife decided to wait for her husband’s
conversion, she could do so; the marriage contract remained formally valid,
but physical contact between the spouses was suspended. If, however, the wife
decided not to wait for her husband’s conversion to Islam, she was permitted

14 Ibn Qayyim, Ahkam ahl al-dhimma, 2:650.

15 Ibn Taymiyya explained that the wife’s waiting for her husband’s conversion is legally con-
sidered as a marriage offer (ījāb), and the husband’s conversion is an acceptance (qabūl)
of that offer.
16 Ibn al-Qayyim, Ahkam ahl al-dhimma, 2:657.

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134 Chapter 6

to marry another man (a Muslim), subsequent to the termination of her wait-

ing period.
Unlike Qaradawi, al-Matʿani seems to suspect the authenticity of this re-
port. If it is authentic, he argues, the event must have taken place before the
revelation of Q 60:10, because it is ruled out that the Prophet contradicted the
rule of Q 60:10 (“do not return them [the Muslim female emigrants] to the dis-
believers”). However, here we face a problem: if the event took place before the
revelation of Q 60:10 and the Prophet thought that Rabiʿ was still Zaynab’s hus-
band, it is not logical that he prevented them from having conjugal intercourse.
Ibn Taymiyya, followed by Ibn al-Qayyim and Qaradawi, argued that the
Prophet never separated spouses where the conversion to Islam of one of them
preceded that of the other. This is because such immediate separation would
have not rendered a good service to the new religion; the pagan Arabs would
have been deterred from conversion considering the risk of separating from
their spouses.
One example of the Prophet’s practice in such a situation was the case of
Safwan b. Umayya and his wife Bint al-Walid b. Mughayra. Malik [b. Anas] re-
lated from Ibn Shihab al-Zuhri (d. 742) that the conversion of Bint al-Walid
(which took place on the day the Prophet conquered Mecca) preceded that of
Safwan by one month, yet the Prophet did not separate them. Ibn al-Qayyim
was fair enough to note that the Andalusian hadith expert Ibn ʿAbd al-Barr
(d. 1071) stated that the publicity of that narration was stronger than its chain
of transmitters.
Qaradawi refers without further comment to this tradition in the course of
his summary of Ibn al-Qayyim’s text. Al-Matʿani however holds that, assum-
ing that the tradition is authentic, which is highly doubtful according to Ibn
ʿAbd al-Barr, it may only serve as evidence that an existing marriage remains
valid only if the husband converts to Islam shortly after his wife. Al-Matʿani
also argues that the Prophet did not separate the spouses immediately because
Bint al-Walid was located in the territory of infidelity (dār al-kufr) and not in
the territory of Islam, and thus only her husband had control over her. It seems
that al-Matʿani means that, if Bint al-Walid’s conversion had taken place in
Medina, rather than in Mecca, the Prophet would have had control over her.
A second example in which, according to al-Matʿani, the existing marriage
remained valid only because the husband converted to Islam shortly after his
wife, concerned Umm Hakim, who, according to the narration of al-Zuhri, con-
verted to Islam on the same day as the above-mentioned Bint al-Walid, while
her husband ʿIkrima fled to Yemen. Umm Ḥakim traveled to Yemen, found
ʿIkrima and called upon him to convert. He accepted, returned with his wife
and pledged allegiance to the Prophet. The couple remained married.

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Case Study II—Impact of Western Wife ’ s Conversion 135

The Practice of Caliph ʿUmar

Qaradawi refers to three narrations about ʿUmar that were discussed by Ibn
al-Qayyim. In the first narration, Yazid b. ʿAlqama relates that his grandpar-
ents were Christians; his grandmother converted to Islam, and subsequently
ʿUmar separated the couple (this narration probably formed the basis for the
first of the nine opinions discussed by Ibn al-Qayyim; see Table 1). According
to a second narration, ʿUmar gave a woman from al-Hira who had converted to
Islam two options: to remain with her husband or to separate from him (this
report was the basis of the sixth opinion, preferred by Ibn al-Qayyim and Ibn
Taymiyya). The third narration is about ʿUbada b. al-Nuʿman al-Taghlibi whose
wife, from the tribe of Tamim, converted to Islam. ʿUmar told ʿUbada that if
he refused to convert too, his spouse would be separated from him. ʿUbada
declined to convert, saying that his tribe would mock him for changing his
religion only for the sake of a woman. Upon Ubada’s refusal, ʿUmar separated
the couple (this narration formed the basis for the second opinion, that of Abu
Hanifa).17
Ibn al-Qayyim thought that understanding the first narration as if ʿUmar
had imposed an immediate dissolution of the marriage was a mistake. Perhaps
the separation took place only after the end of the waiting period, or, alterna-
tively, Yazid’s grandmother opted not to wait until her spouse’s conversion to
Islam, or that separation was conditional upon the caliph’s decision. Overall,
Ibn al-Qayyim held that the three narrations about ʿUmar’s practice did not
contradict each other. He explained that in Islamic marriage three situations
might occur. In the first, i.e. the standard situation, the marriage (in addition
to being valid) is binding (a situation of luzūm, meaning that all the rights and
duties of the spouses emanating from the contract are operative). In the sec-
ond situation, the marriage is essentially prohibited (e.g. the couple are blood
relatives in the degrees that prevent marriage) and therefore it is annulled (in
Ibn al-Qayyim’s terms, taḥrīm wa-faskh). In the third situation, the marriage
is lawful but it comes to a practical standstill ( jawāz wa-waqf ). This situa-
tion represents a middle position, in which the wife is married from a certain
perspective and divorced from another.18 The story of Zaynab, the Prophet’s
daughter (see above), exemplifies this situation: when her non-Muslim hus-
band arrived in Medina, the Prophet told her that he was her husband, but

17 Qaradawi, who rechecked the hadith collections that were consulted by Ibn al-Qayyim,
reports another narration according to which ʿUmar permitted the four converted-to-
Islam wives of a Christian to remain with him.
18 Ibn al-Qayyim, Ahkam ahl al-dhimma, 2:650.

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136 Chapter 6

he was not permitted to have physical contact with her. In other words, the
marriage contract remained valid, but it was not binding: Zaynab’s husband
was not entitled to have sex with her. Ibn Taymiyya held that this solution was
a pure virtue (khayr maḥḍ) and beneficial for the spouses in this world and the
hereafter.19
The existence of this middle position in marriage, argued Ibn al-Qayyim,
explains why it was legitimate for ʿUmar to diversify his legal practice. At one
time, he offered the wife the choice between staying with her non-Muslim hus-
band and separating from him. At another, he ruled for separation upon the
husband’s refusal to convert to Islam. At a third time, he separated the couple
immediately. Qaradawi agrees with the way Ibn al-Qayyim explained away the
apparent contradictions between the reports about ʿUmar’s practices and thus
accepts Ibn al-Qayyim’s conclusions. In Qaradawi’s own words, the ruler or the
judge are entitled to (1) annul the marriage; (2) separate the spouses, if they
see maṣlaḥa in it; (3) leave the Muslim wife with her non-Muslim husband;
or, (4) leave her the choice between staying with her husband and separating
from him.
Unlike Qaradawi, al-Matʿani disagrees with Ibn al-Qayyim’s preference for
the tradition according to which the wife has a choice concerning her mar-
riage over the tradition according to which the spouses are separated. First, al-
Matʿani argues, unlike the tradition about the wife’s choice, the tradition about
the unconditional separation of the spouses is in accord with Q 60:10 (“they are
not lawful [wives] for them, nor are they lawful [husbands] for them”). Second,
it is absurd to leave the decision about the legality of marriage under such cir-
cumstances in the hands of a human being (the wife) instead of in the hands of
Allah’s rule (i.e. Q 60:10). Al-Matʿani concludes that it is improbable that ʿUmar
was not aware of the Qurʾanic prescription in this regard. Al-Matʿani thus im-
plies that the report according to which ʿUmar left the wife with the choice to
stay with her non-Muslim husband was not trustworthy.

The Practice of Caliph ʿAli

Qaradawi criticizes Ibn al-Qayyim for limiting his juristic research (especially
in the hadith literature) to the evidence that forms the basis for the sixth opin-
ion (the wife may wait for her husband’s conversion), the one upheld by his
mentor Ibn Taymiyya, thereby neglecting alternative beneficial evidence, such
as the position of Caliph ʿAli. Ibn al-Qayyim’s position is valuable, Qaradawi

19 Ibid., 2:695.

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Case Study II—Impact of Western Wife ’ s Conversion 137

holds, but it creates a practical problem for today’s Muslims who live in the
West. If the couple is young and the wife converts to Islam, how can they live
without having sex, perhaps for years, until the husband converts too?
Consulting the traditions about ʿAli, Qaradawi finds that, according to the
narrations that formed the basis for the seventh opinion in Ibn al-Qayyim’s
text, ʿAli referred to a non-Muslim husband whose wife had converted to Islam.
ʿAli said: “He has the greater right to her (literally, he has the greater right to
her genitals) as long as she remains in the territory to which she immigrated”
(huwa amlaku bi-buḍʿihā mā dāmat fī dār hijratihā), or, according to a second
version, “as long as she remains in her town (miṣrihā).” This statement implies
that the spouses may continue to have a regular sex life.20
Qaradawi holds that ʿAli’s opinion is sound (wajīh), because it is both a legal
opinion and a judicial decision, considering ʿAli’s practical experience: first,
the Prophet sent him to Yemen, to supervise the conversion of its people to
Islam; second, he later became a caliph himself. In addition, Qaradawi discerns
in ʿAli’s opinion a reliance on Q 60:10, but he does not explain what this reli-
ance is. Finally, the need of the new female Muslims in the West to remain with
their non-Muslim husbands makes this opinion the preferred one, especially
when there is hope that the husband will eventually convert, and considering
that the spouses have children, whose future is at risk should the marriage end.
Unlike Qaradawi, al-Matʿani questions the authority of the hadith compi-
lations on which Ibn al-Qayyim (followed by Qaradawi) relied for formulat-
ing the nine juristic opinions. Al-Matʿani holds that these compilations—the
Musannaf of al-Sanʿani, the Musannaf of Ibn Abi Shayba (d. 849), the works
of al-Tahawi and al-Sunan al-kubra of al-Bayhaqi—are of low rate (al-daraja
al-dunyā). None of the traditions relied on by Qaradawi is drawn from one of
the six canonical compilations of hadith; none of them is a Prophetic report,
even a weak one. Specifically concerning the traditions about ʿAli, they are not
mentioned by any of the eponyms of the Sunni law-schools. None of the lat-
ter therefore upheld the opinion that the non-Muslim husband has the stron-
gest rights regarding his wife, who converted to Islam, as long as he does not
­remove her from the place in which she converted to Islam and in which she
lives. The following table summarizes the abovementioned discussion of the
evidence from the hadith.

20 Zaman (Modern Islamic Thought, 211) remarks that Qaradawi “is not notably more scru-
pulous in his scholarly methods than Ibn al-Qayyim,” because he discounts ʿAli’s implicit
expectation that the woman convert would soon leave her town to join her Muslim core-
ligionists, thereby ending her existing marriage.

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Table 3 Hadith reports

Number Content of narration Opinion of Ibn al-Qayyim Opinion of al-Matʿani

[IQ], Ibn Taymiyya [IT] and regarding the narration
Qaradawi (Q) regarding the
narration

1 The Prophet told A sound tradition; it means Suspects the authenticity;

his daughter that the wife may wait for if the narration is sound,
Zaynab that her her husband’s conversion, the event must have
infidel husband even for many years; while taken place prior to the
al-Rabiʿ was still her she waits, the marriage is revelation of Q 60:10
husband but they “on hold” (IQ+IT+Q) [result: this tradition is
were prohibited abrogated by the Qurʾan]
from having
conjugal relations
2 Safwan b. Umayya The publicity of the The publicity of the
converted a month narration is stronger than narration is stronger than
later than his wife its isnād; it means that its isnād; it means that
Bint al-Walid b. the marriage contract the marriage contract
Mughayra. The continues even if there is continues only if the
Prophet did not a time gap between the time gap between the
separate them conversions of the conversions of the spouses
spouses is short. Also, the Prophet
could not separate them
because Bint al-Walid was
still in Mecca
3 ʿIkrima, the Sound; meaning as above Meaning as above
husband of Umm
Ḥakim, converted a
while after her. The
Prophet did not
separate them

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Case Study II—Impact of Western Wife ’ s Conversion 139

Number Content of narration Opinion of Ibn al-Qayyim Opinion of al-Matʿani

[IQ], Ibn Taymiyya [IT] and regarding the narration
Qaradawi (Q) regarding the
narration

4 ʿUmar separated The attribution of this Sound; this narration

the grandparents narration to ʿUmar is should be preferred
of Yazid b. ʿAlqama mistaken, because none because it is congruent
immediately upon of the companions held with Q 60:10
the grandmother’s such an opinion; there are
conversion to Islam other narrations about
ʿUmar that are sounder;
this tradition does not
necessarily mean that the
dissolution of marriage
was immediate (IQ)
5 ʿUmar grants a Sound; it means that the Suspect. It is unlikely that
newly-converted newly converted wife may ʿUmar left the decision
wife from al- wait for her husband’s about the legality of the
Hira the right of conversion, formally marriage to the wife,
option to stay continuing to be his wife, thereby ignoring the clear
with her non- but staying away from him rule in Q 60:10
Muslim husband (IQ). Q disagrees with IQ’s
or terminate their interpretation, claiming
marriage that the plain meaning
of this narration is that
the spouses may continue
regular conjugal life
6 ʿUmar separated Sound; all three narrations No special comment
ʿUbada from his (4–6) correspond to the
newly-converted “middle” status of the
wife after ʿUbada marriage contract: it is still
declined ʿUmar’s valid formally, but conjugal
offer to convert relations are “on hold”

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Table 3 Hadith reports (cont.)

Number Content of narration Opinion of Ibn al-Qayyim Opinion of al-Matʿani

[IQ], Ibn Taymiyya [IT] and regarding the narration
Qaradawi (Q) regarding the
narration

7 ʿAli said that IQ mentioned this The soundness of

the non-Muslim narration only briefly; traditions 4–7 is
husband of the Q accepts this narration suspected, because they
newly-converted as sound and argues that come from low-rate
wife has “the it should be given legal hadith compilation and
strongest rights preference, due to ʿAli’s also because none of the
regarding her strong authority; because eponyms of the law-
genitals” as long as the narration reflects the schools relied on them
he did not distance content of Q 60:10 [how?],
her from the abode and because it is the most
of Islam or from adequate for solving the
her town problems of Muslims living
in the West

The Logical Sequence

Qaradawi bases his argument on the juristic construct that Ibn Taymiyya
founded and Ibn al-Qayyim developed. According to this construct, which Ibn
Taymiyya defined as the “secret of this topic” (sirr al-masʾala),21 if a wife’s con-
version to Islam precedes that of her husband, and she chooses not to separate
from him, the marriage between them remains valid, but is not binding. This
means that as long as the wife awaits her husband’s conversion, they do not
have mutual conjugal rights: she is not obliged to obey his orders; he is not
obliged to pay her alimony and has no right to sexual intercourse with her.
Qaradawi holds that Ibn al-Qayyim’s position creates practical problems for
Muslims in Europe that must be avoided. Differentiating his position from that
of Ibn al-Qayyim, he argues that the latter was wrong in interpreting the narra-
tion about ʿUmar (the sixth opinion) as meaning that, if the converted Muslim
wife chooses to remain with her non-Muslim husband, they have no right to

21 Ibn al-Qayyim, Ahkam ahl al-dhimma, 2:662.

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Case Study II—Impact of Western Wife ’ s Conversion 141

sexual intercourse until he converts to Islam. According to Qaradawi, Ibn al-

Qayyim’s interpretation of the narration is allegoric (ta‌ʾwīl) and contradicts
the plain meaning of ʿUmar’s saying. Any exegete who understood ʿUmar’s
saying—that the wife could choose to stay with her husband—as permitting
the continuation of sexual intercourse between the spouses, could not be con-
sidered wrong.
In support of his position that the female convert to Islam is permitted to
have sexual intercourse with her husband while she is awaiting his conversion,
Qaradawi relies on two alternative opinions that appear in Ibn al-Qayyim’s
text. The first is ʿAli’s opinion (the seventh opinion, see Table 1) and the sec-
ond is that of al-Zuhri (the eighth opinion), namely that the spouses remain
married, unless the ruler divorces them. To strengthen his preference for these
two opinions, Qaradawi adds considerations of leniency and maṣlaḥa, by argu-
ing that adopting these opinions brings about a great relief to Western female
converts.
Qaradawi concludes by admitting that many Muslims will find it hard to
digest his position, which is contrary to the traditional one. Nevertheless, he
argues, it is accepted and known (as a jurisprudential principle) that an in-
fringement of the law (in our case, conjugal relations between a Muslim wife
and a non-Muslim husband), which is not excused when a contract is signed,
is forgiven for the sake of the continuation of a contract (yughtafar fi-l-baqāʾ
mā lā yughtafar fī-l-ibtidāʾ).
In his review (taʿqīb), al-Matʿani raises two main arguments against
Qaradawi’s legal opinion. The first is that it is difficult to accept that Qaradawi
ignores the opinions of a large number of the companions, the followers and
the eponyms of the law-schools. The second argument is that Qaradawi’s legal
opinion contradicts two clear (muḥkam) verses of the Qurʾan. Discussing these
verses (2:221 and 60:10), al-Matʿani concludes that the Qurʾan is clear-cut on the
requirement to separate the spouses immediately. The Qurʾan does not distin-
guish in this context between a new marriage and an existing one, and it does
not provide the newly converted wife with the option to wait for her husband’s
conversion while remaining his legal wife.
By concluding this part of his review with the strong statement that this
legal topic must be excluded from the realm of ijtihād, al-Matʿani could have
ended his analysis right there. He nevertheless continues to comment on Ibn
al-Qayyim’s text. First, he criticizes Ibn al-Qayyim for preferring the narration
according to which ʿUmar left the wife with the choice of staying with her non-
Muslim husband or divorcing him (the sixth opinion) over the narration ac-
cording to which ʿUmar separated the spouses immediately upon the wife’s
conversion to Islam (the first opinion). Then, examining the narrations about

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the Prophet’s practice, al-Matʿani claims that the maximum that may be de-
rived from them is that the marriage may be continued only if the husband’s
conversion to Islam takes place shortly after that of his wife.
At this stage, al-Matʿani makes a statement that surprises the reader, since
he retreats from his strong claim, namely that the Qurʾan is clear-cut in leaving
no option for the spouses to maintain their marriage under such circumstances
(see above). Now he says that he agrees with Qaradawi that the marriage may
be continued; he however disagrees as to the wife’s right to continue cohabit-
ing with her husband, which is the focus of Qaradawi’s legal opinion. Returning
to the narration about the Prophet’s daughter Zaynab, al-Matʿani claims that,
assuming this narration is authentic, it must have predated the revelation of
Q 60:10, and therefore the narration must be considered as abrogated by it.
Al-Matʿani upholds Ibn al-Qayyim’s interpretation of the narration about
ʿUmar (the sixth opinion). He argues that, even if we assume that the marriage
between a Muslim wife and a non-Muslim husband continues, they are pre-
cluded from conjugal cohabitation, on the grounds of “eliminating pretexts,”22
i.e. to prevent physical proximity that may tempt the spouses into having sex-
ual intercourse. Continuing to the other narrations about ʿUmar and ʿAli, al-
Matʿani doubts their authenticity due to what he conceives as a contradiction
with the Qurʾanic text.
Summarizing his argument towards the end of his review, al-Matʿani claims
that the juristic opinion that is the closest to the divine legislation is the one in
favor of immediate separation between the spouses. If the husband’s conver-
sion follows that of his wife, he may remarry her in return for a symbolic dower.
If the separation between the spouses is considered a revocable divorce and
the husband’s conversion takes place while his wife still observes her waiting
period, there is no need for a new marriage. The newly converted wife may
wait for her husband’s conversion, but not in his home. If she waits for his con-
version for years, the preferred juristic opinion is to contract a new marriage
between them.
Al-Matʿani ends by reprimanding Qaradawi, his old acquaintance:
Qaradawi’s legal opinion is motivated by noble sentiments and love for Islam,
but Islamic jurisprudence does not consider feelings (al-hawā) as legal evi-
dence. Encouragement of conversion to Islam must accord with the principles
of Islam and its values rather than neglect its legal rules.

22 Al-Maṭʿani does not mention the term “eliminating pretexts,” but it is clear that he
means it.

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Case Study II—Impact of Western Wife ’ s Conversion 143

Conclusion

The use that Qaradawi makes of Ibn al-Qayyim’s text (which supports the opin-
ion of Ibn Taymiyya, Ibn al-Qayyim’s mentor) is highly valuable to him. This
text represents a typical classical juristic debate and thus enables Qaradawi to
anchor his legal opinion in the realm of the fiqh naturally and to provide it with
juristic authoritativeness. Moreover, Ibn Taymiyya and Ibn al-Qayyim are role
models for modern Salafis such as Qaradawi. Ibn al-Qayyim’s text proves be-
yond any doubt that the topic under discussion is conflictual juristically, main-
ly due to the existence of contradictory traditions (e.g. reports that attribute
to Caliph ʿUmar three solutions to the same situation). Ibn al-Qayyim’s text
enables Qaradawi to engage with all the relevant primary textual sources—
Qurʾanic verses, reports on the Prophet’s practice, the opinions of the compan-
ions and the followers, and finally, those of the eponyms of the law-schools.
That Ibn al-Qayyim relied on traditions that are not found in the six canonical
compilations of hadith enables Qaradawi to do the same, without having to in-
vestigate the authenticity of these traditions himself. In addition, the fact that
Ibn Taymiyya and Ibn al-Qayyim adopted an opinion (based on the reported
practice of Caliph ʿUmar) that is different from the opinion of any of the four
eponyms of the law-schools enables Qaradawi to follow suit. This choice falls
into line with Qaradawi’s view that the eponyms of the law-schools were not
immune from error and that gifted jurists preceded them, especially from
among the companions, whose opinions may be adopted if found more suit-
able to modern needs.
In his legal opinion, Qaradawi applies his methodology of ijtihād consistent-
ly. He refers to the two relevant Qurʾan verses and concludes that Q 2:221 is not
relevant to the topic, because it relates to the contracting of a new marriage
and not to the continuation of an old one, as in our case. As for Q 60:10, it does
not prevent the converted wife from waiting until her husband converts too.
Having established that the Qurʾan does not contain a definite text concerning
the topic, Qaradawi moves forward to the reports about the Prophet’s practice,
especially the episode involving his daughter Zaynab. He concludes that this
episode establishes that the Prophet did not see even an extended time gap
between a wife’s conversion to Islam and that of the husband as grounds for
the dissolution of their marriage. At this point, Qaradawi concludes that the
scholarly and practical consensus refer solely to the prohibition of contracting
a new marriage between a Muslim female and a non-Muslim male, and does
not include the continuation of an existing marriage between such spouses.
The question of the continuation of marriage in such circumstances is thus a
disputed legal topic. As such, it is open for ijtihād, either creative or selective.

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Qaradawi opts for a selective ijtihad. From among the conflicting opinions,
based on conflicting reports that are discussed in Ibn al-Qayyim’s work, he
chooses the opinion that he finds most suitable for the needs of Muslims liv-
ing in the West and for the success of Islamic propaganda there. This opinion
is based on one of the reports attributed to Caliph ʿUmar and on a report at-
tributed to Caliph ʿAli, whose experience in that matter is highly appreciated
by Qaradawi.
Up to the point that the converted wife may wait until her husband’s con-
version (without cohabiting with him and having sex with him) and that their
marriage is not dissolved immediately upon her conversion, Qaradawi is in
agreement with Ibn al-Qayyim’s opinion. Al-Matʿani too is willing to adopt
such an option, albeit reluctantly. Where Qaradawi demonstrates his indepen-
dent scholarly posture is when he criticizes Ibn al-Qayyim for interpreting the
report about ʿUmar and the Christian female convert as excluding the con-
tinuation of conjugal cohabitation between the spouses. Qaradawi holds that
this is not the plain understanding of that report. In addition, he criticizes Ibn
al-Qayyim for limiting his investigation to the reports that support the opinion
of his mentor Ibn Taymiyya, while neglecting other relevant reports, such as
those relating to the practice of Caliph ʿAli.
Finally, Qaradawi is aware that his opinion, permitting the spouses to con-
tinue normal conjugal life while the Muslim wife waits for the conversion of
her husband, contradicts that of Ibn al-Qayyim (not to mention the Prophet’s
order to his daughter Zaynab to abstain from having sex with her infidel hus-
band). Qaradawi admits that his opinion is unorthodox and stretches his
methodology to its limit, perhaps even further than that. This extra mile that
he is willing to walk is justified on the grounds of the peculiar situation of the
Muslims in the West, their special needs, and the duty to facilitate the propa-
gation of Islam in the West, at almost all costs. If Muslims want the Western
convert wife to feel assured that her marriage is not going to be destroyed, it
is necessary that the marriage, with all that that implies, continue in its nor-
mal course. Qaradawi’s opinion highlights his being, before anything else, an
enthusiastic propagandist of Islam. It is almost certain that he would have not
allowed himself this deviation from Islamic consensus if the case involved con-
version to Islam in a state that defines itself as Islamic.23

23 Zaman (Modern Islamic Thought, 214) shares this evaluation. He however remarks that in
today’s globalized world of legal opinions it is hard to limit the implications of particular
positions to specific contexts or locales.

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 Chapter 7

Case Study III—Politics and Gender: Women in

Roles of Political Leadership

Introduction

The public debate within Muslim societies on the question of women’s right
to elect and be elected to political positions is longstanding. In Egypt, for
example, the young feminist movement demanded women’s suffrage already
in the early decades of the 20th century. This demand became reality only thirty
years later, after the transition from the monarchy to the revolutionary regime
of the Free Officers, and involved heated public debate. At the beginning of the
1950s, a group of scholars from al-Azhar published a ruling according to which
women were forbidden to elect and be elected to political positions. This rul-
ing, which was not well received by the revolutionary government, desirous as
it was of advancing a socialistic agenda, cost the Shaykh of al-Azhar his own
job. In the end, ensuring Egyptian women’s suffrage in 1956 was a most impor-
tant step on their path towards the longed-for gender equality, but it should
not be concluded that women necessarily realized this right in actuality. The
ruling patriarchal social structure and the poor degree of education among
women were among the causes for the low level of women’s voting, as well
as for the small number of women elected to Parliament, in past and present
alike.1 This situation was exacerbated by the rise of political Islam in the last
two decades of the twentieth century, many of whose spokespersons wished
to rob women of their political rights and return them to their traditional roles
in the domestic sphere.
It is reasonable to assume that the renewal of Islamist discourse on the
subject of women’s political rights in the last two decades of the 20th centu-
ry caused Qaradawi to publish a legal opinion on the subject, under the title

1 In Egypt, for example, former President Husni Mubarak initiated a law, accepted by parlia-
ment in June 2009, that secures 64 seats (approximately one eighth of the total number of
seats in the two houses of parliament) in the lower house (Majlis al-Shaʿb) for women. At
that time, there were only nine female members in the lower house, most of whom had been
nominated personally by Mubarak. While the President claimed that he wished to improve
the representation of women in parliament, his Islamist opponents argued, inter alia, that he
used feminist argumentation to increase his control of parliament.

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“Women’s candidacy for election to parliament: between permission and pro-

hibition” (Tarshih al-marʾa li-l-majalis al-niyabiyya bayna-l-ijaza wa-l-manʿ).2
The same volume of Qaradawi’s legal opinions includes another opinion on the
same subject, under the title “Debate with a legal opinion that denies women
their political rights” (Munaqashat fatwa bi-tahrim al-huquq al-siyasiyya ʿala-
l-marʾa).3 At the beginning of “Munaqasha,” Qaradawi explains that after writ-
ing “Tarshih,” he discovered a legal opinion written by a group of scholars from
al-Azhar in the early 1950s and decided to respond to it. This is the second
opinion under discussion in this chapter. While an analysis of these two legal
opinions forms a major part of Barbara Stowasser’s article on Qaradawi’s legal
attitude towards women,4 this chapter deals, in a more detailed manner and in
broader contexts, with Qaradawi’s juristic methodology as expressed in these
two legal opinions.

General Juristic Principles

Qaradawi’s point of departure is the well-known Modernist juristic principle

that everyday matters between one person and another may change over time
according to historical circumstances and social needs. In such matters, the
juristic presumption is that any deed is permitted unless specifically shown
by the revealed texts to be forbidden (wa-l-aṣl fī umūr al-ʿādāt wa-l-muʿāmalāt
al-ibāḥa illā mā jāʾa fī manʿihi naṣṣ ṣaḥīḥ ṣarīḥ).5 This assertion derives from
the principle according to which Islam is a religion of permission and relief
to its believers. Thus, in matters of human transactions the burden of proof
is on the one claiming a prohibition. Since the question of women’s political
rights is a matter of human transactions, Qaradawi assumes that women do
have political rights, since their status as believers is equal to that of men, as
stated in the Qurʾan. As a result, Qaradawi’s rhetorical strategy in the two legal
opinions under discussion focuses on examining the evidence brought by op-
ponents of granting women political rights (who have to prove their case) and
refuting them.

2 Qaradawi, “Tarshih.” The collection does not indicate the precise date of publication of each
legal opinion included in it, but one may assume that Qaradawi issued this legal opinion dur-
ing the 1980s.
3 Qaradawi, “Munaqasha.”
4 Stowasser, “Qaradawi on Women,” 201–7.
5 Qaradawi, “Tarshih,” 412, 416.

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Case Study III—Politics and Gender 147

Qaradawi opens “Tarshih” with a short introduction about Islam’s position

on women. He explains that, in religious terms, men and women have equal
rights and duties. The laws set by the Qurʾan and the sunna apply to both sexes,
except for rules (e.g. marriage and divorce, inheritance and rules of testimony)
necessitated by the natural differences between males and females and their
resultant different social roles. Following this introduction and before begin-
ning his examination of the textual evidence relevant to the topic under dis-
cussion, Qaradawi sets out a number of guiding principles:

1. Rulings must be made only based on proven, clear and binding texts
(al-nuṣūṣ al-thābita al-ṣarīḥa al-mulzima); no one has the right to oblige
the Islamic community to follow rules based on weak or equivocal texts,
especially with regard to general public matters, in which there are many
calamities and distress, and therefore require legal leniency.6
2. There are laws that must change with changing circumstances. There has
been a juristic hardening against women, even in contradiction to clear
and valid texts, such as forbidding them to go to the mosque, due to con-
siderations of cautiousness and “eliminating pretexts.” Some jurists have
preferred these considerations to clear texts, based on the claim that the
Muslims’ moral level has decreased over time.
3. Secularists use the topic of women’s status as a weapon against Islam, by
falsely claiming that it oppresses women and prevents them from realiz-
ing their potential and talents. The secularists base this claim on the ac-
tions taken against women in the late periods of Islamic history and on
the words of present-day hardliners.

Evidence from the Qurʾan Regarding Women’s Right to Hold Public

Positions

In this chapter, I focus on three pieces of evidence adduced by opponents of

women’s political rights, the first from the Qurʾan, the second from the hadith
and the third from the field of “eliminating pretexts.” The first main evidence is
Q 33:33. This verse is one of a series of verses (vv. 28–34) referring to the wives
of the Prophet.7 Following the first part of Q 33, which deals with the Prophet’s

6 Abou El Fadl (Speaking, 214–17) holds the same opinion.

7 Qurʾan 33: (28) O Prophet, say to your wives, “If you should desire the worldly life and its
adornment, then come, I will provide for you and give you a gracious release. (29) But if
you should desire Allah and His Messenger and the home of the Hereafter—then indeed,

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victory in the Battle of the Trench and its lessons, the Prophet is required to
have his wives choose between two options. The first is to follow the vanities
of this world—a choice that, if made, would lead to divorce from him (v. 28)—
and the second is to long for the next world, which promises them great re-
ward (v. 29). On the one hand, the Prophet’s wives are threatened that their
punishment for any sin will be double the punishment of a lay believer (v. 30),
but on the other, they are promised a double reward for their good deeds on
behalf of Islam (v. 31). The next verse (v. 32) tells the wives of the Prophet to be
modest and to be careful in their speech, lest they say something unjust fueled
by desire. Then, the verse relevant to our topic (v. 33) appears, calling upon
them to sit quietly in their homes, to avoid flaunting their external beauty in
the fashion of the Jahiliyya, and to fulfill Allah’s commands. This is because
Allah wishes to remove any impurity from the Prophet’s family. The next and
final verse in this thematic section (v. 34) calls upon them to take notice of the
revelations read in their houses. A new section begins with v. 35, which calls
explicitly upon men and women who submit to Allah and fulfill His command-
ments, and thus is irrelevant to our purposes.
Looking at the literary structure of this section, one sees that two pairs of
verses (28–29 and 30–31) are identical in their syntactic structure. At the open-
ing of the first verse of each couple (vv. 28, 30), there is an explicit invocation of
the wives of the Prophet. Nevertheless, the second verse of each couple (vv. 29
and 31 respectively), in which the Prophet’s wives are not mentioned explicitly,
is connected to the first (“but if you;” “whoever of you,” respectively), clarify-
ing that the reference is still to the Prophet’s wives. Vv. 32–34 however have a
different structure: The first verse (32) does contain an explicit invocation of
the Prophet’s wives, but the following verses (33–34), which do not mention
them, are connected to the former through association. Thus, there is strong

Allah has prepared for the doers of good among you a great reward. (30) O wives of the
Prophet, whoever of you should commit a clear immorality—for her the punishment would
be doubled two fold, and ever is that, for Allah, easy. (31) And whoever of you devoutly obeys
Allah and His Messenger and does righteousness—We will give her her reward twice; and We
have prepared for her a noble provision. (32) O wives of the Prophet, you are not like anyone
among women. If you fear Allah, then do not be soft in speech [to men], lest he in whose
heart is disease should covet, but speak with appropriate speech. (33) And abide in your
houses and do not display yourselves as [was] the display of the former times of ignorance.
And establish prayer and give zakat and obey Allah and His Messenger. Allah intends only to
remove from you the impurity [of sin], O people of the [Prophet’s] household, and to purify
you with [extensive] purification. (34) And remember what is recited in your houses of the
verses of Allah and wisdom. Indeed, Allah is ever Subtle and Acquainted [with all things].

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Case Study III—Politics and Gender 149

circumstantial evidence that v. 33 also refers to the wives of the Prophet, since
its closing part speaks of the desire to preserve the purity of the Prophet’s
family.
The al-Azhar fatwa refers to vv. 28–29 as evidence that women incline to
passion and jealousy and therefore their emotions overcome their intellect.
If the wives of the Prophet suffered from this defect, how much more so or-
dinary Muslim women, who therefore are unsuited for public office, which
requires rational judgment. Qaradawi replies8 to this claim by saying that the
Qurʾan calls upon the wives of the Prophet to return to rational and reason-
able behavior and that, in the end, they chose Allah, the Prophet and the next
world (e.g. Q 66:4)—something that stands in their favor. Beyond that, wom-
en’s inclination to decorativeness and materialism does not indicate an intel-
lectual disability that makes them unfit to deal with public affairs. Qaradawi
further claims that the Qurʾan provides explicit evidence that a number of the
male companions also had materialist inclinations. Q 62:11 states that when
the Muslims in Yathrib saw a traders’ caravan, or any kind of entertainment
put on in the market, they hurried towards them, ignoring the call to Friday
prayer in the mosque. Q 3:152 points out that although Allah had kept His
promises to the Muslims and enabled them to overcome their foes, some of
them disobeyed His commandments and desired this world rather than the
next one. The commentators, who connect Q 3:152 to the events of the Battle
of Uhud, explain that at the beginning of the battle, the Muslims were win-
ning. However, after some of them, tempted by greed, scattered in search of
booty, the Meccans were able to counter-attack and turn the battle in their
favor. Finally, Q 8:5–7 and 67–68 deal with some Muslims’ unwillingness to
participate in the Battle of Badr, and others’ desire to attack the unarmed cara-
van for fear of the Meccan army that had arrived to protect it. In addition,
some warriors preferred to take captives in order to gain their ransoms, rather
than fighting the Meccans to the death, as Allah expected of them. Qaradawi
concludes from all these that the human weakness of materialism is common
to both sexes. Just as no one claims—based on these verses—that men are
unfit for high public office, so should women not be excluded on that base. In
the end, the result is what counts (al-ʿibra bi-l-ʿāqiba), that is, one’s success in
overcoming desire and greed.
The al-Azhar opinion interprets Q 33:33 as referring to all Muslim women,
not just to the Prophet’s wives, and thus views it as conclusive evidence that
no women may take part in public activities outside their homes. In contrast,
Qaradawi claims that the verse is not conclusive proof or cogent evidence

8 Qaradawi’s reference to Q 33:33 appears in “Tarshih,” 412–13 and “Munaqasha,” 421–6.

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(dalīl nāhiḍ), since it refers only to the wives of the Prophet, who receive
double reward or punishment, and not to ordinary Muslim women. It is im-
portant to note that al-Azhar’s interpretation of v. 33 coincides with the tradi-
tional one, while Qaradawi’s interpretation does not. Most of the traditional
exegetes, and even contemporary ones, note explicitly that while the verse
addresses the wives of the Prophet, the rule it contains applies to all Muslim
women.9 Qaradawi does not engage directly with the common interpretation,
traditional or modern.
Additional proofs that Qaradawi adduces to demonstrate that v. 33 is not
conclusive evidence for the prohibition of women’s participation in public
affairs:

1. ʿAʾisha, the Prophet’s wife, left her home to take part in the Battle of the
Camel against ʿAli. Here Qaradawi uses a historical precedent that proves
that even the wives of the Prophet did not understand v. 33 as prohibiting
their participation in public affairs outside their homes. He explains that
while ʿAʾisha did regret this event in retrospect, her regret was not for
going out in public, but because the faction she had led lost the battle.
2. A woman going out of the home to study, which today is not opposed by
any significant social force, is considered as the majority’s assent to its
legality, despite this assent being conditional on the work or studies not
harming the woman’s obligations towards her family.
3. There is a need for devout Muslim women to elect and stand for election
to fight the control of secular women in parliament. If women are denied
suffrage, the political power of half of the community is neutralized and
thus the power of the secularists and of opponents to the application of
Islamic law increases. In addition, the secularists accuse Islam of

9 Qurtubi, al-Jamiʿ, 7 (part 14): 116–18, writes: “The meaning of this verse is a command [to
women] to stay at home, and even if the address is to the wives of the Prophet, the meaning
applies to all women” (maʿnā hādhihi al-āya al-amr bi-luzūm al-bayt wa-in kāna al-khiṭāb
li-nisāʾ al-nabī fa-qad dakhala ghayruhuna fīhi bi-l-maʿnā). See also Alusi, Ruḥ al-maʿani,
part 22, pp. 6–7: “This [staying at home] is required from the remaining women (wa-huwwa
[mulāzamat al-buyūt] amr maṭlūb min sāʾir al-nisāʾ). In Suyuṭi, Tafsir al-durr al-manthur,
6:599–600, a number of reports, some of them Prophetic, are adduced to prove that women
should stay at home because their leaving home can cause sexual temptation. A number of
modern exegetes hold the same view. Shaʿrawi, Tafsir Khawaṭir, 19:12, 21–2, writes: “The mean-
ing of ‘stay quietly in your houses’ is stick to them and do not leave them often; this is the
proper behavior for all women” (maʿnā “waqarna fī buyūtikum” ilzamnahā wa-la tukthirna
al-khurūj minhā wa-hādhā adab li-l-nisāʾ ʿāmmatan). See the same in Majmaʿ al-Malik Fahd,
al-Tafsir al-muyassar, 422.

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Case Study III—Politics and Gender 151

tyrannizing women, based on oppressive actions towards women in re-

cent generations and on the declarations of conservatives in the present.
From Qaradawi’s words it would appear that these accusations harm
Islam’s image both in Islamic lands and in the international arena, and
therefore must be counteracted. The combination of considerations ad-
duced by Qaradawi in this paragraph can be catalogued under the prin-
ciple of maṣlaḥa, i.e., strengthening the supporters of Islam both in
Muslim states and in the international community.
4. The Qurʾan’s call to keep women in their homes must be understood only
as a punishment for certain sinful women from among the companions
and not as a ruling permanently valid for any female Muslim. In this con-
text, Qaradawi quotes Q 4:15, which speaks of keeping adulterous women
in their homes until their death. Qaradawi limits the legal validity of the
Qurʾanic statement to the generation of the Prophet. In other words, the
“circumstances of revelation” of the verse are interpreted not only as clar-
ifying the circumstances in which it was revealed to the Prophet, but also
as narrowing and limiting their legal applicability.

Since Qaradawi holds to the principle that a Qurʾanic verse whose meaning
is unequivocal is not subject to ijtihād, analysis of his treatment of Qurʾanic
evidence reveals that he does not view Q 33: 28–34 as unequivocal. To reach
the correct meaning of these verses, he makes use of a number of exegetical
methods. The first is “interpreting the Qurʾan through the Qurʾan” (tafsīr al-
Qurʾān bi-l-Qurʾān): Qaradawi places vv. 28–34 in a wider topical perspective
within the Qurʾan. First, he claims that the Prophet’s wives overcame their evil
inclinations and chose well in the end, and therefore these verses must not be
held against them, according to the principle that one takes only the results
of actions into account. Second, using comparison, he cites other Qurʾanic
verses to prove that male companions also committed the sin of greed, but
no one would claim that this disqualifies them from holding public office.
Disqualifying women on these grounds is therefore wrong, considering the
general Qurʾanic principle of gender equality.
“Interpreting the Qurʾan through the Qurʾan” is one of the principles that
Qaradawi presents for the correct interpretation of the Qurʾan. As we recall,
the examples for applying this principle that he provides in his book “How we
deal with the Qurʾan” mainly treat the interpretation of an unclear expression
in one verse by the appearance of the same phrase in another one. In addition,
one verse may detail the intention of another verse, or, one verse may general-
ize a limited declaration that appears in another verse. However, the applica-
tion of this principle in the legal opinions under discussion is much broader:

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he connects the verse to a wider topic dealing with sin, repentance and their
significance with regard to punishment, and compares men and women who
sin by materialism. This interpretative approach resembles that of Rahman
and Wadud.10
The second exegetical method that Qaradawi applies is interpreting the
Qurʾan through reference to the “circumstances of revelation.” He claims that
the circumstances of the revelation of v. 33 limit its legal validity to women of
the first generation of Muslims who sinned, and therefore it is not relevant as
a permanent ruling. He reaches this conclusion through comparison with an-
other Qurʾanic verse that demands that women who have sinned be punished
by shutting them up at home. He emphasizes however that the fact that a cer-
tain verse was revealed under particular conditions does not always mean, as
some contemporary exegetes claim, that the verse’s validity is limited to that
case. Thus, for example, the case of the slandering (qadhf ) of the Prophet’s
wife ʿAʾisha was unique, but the law given in that regard is general. The exegete
must ascertain, though, that the Qurʾan uses an expression of generality. For
example, in the verse saying “And when ye ask (his ladies) for anything ye want,
ask them from before a screen” (Q 33:53), the context proves that this rule is
specific to the wives of the Prophet, whom the Qurʾan states clearly are not like
other women and whose liability is greater.11 Qaradawi’s claim with regard to Q
33:53 is the same as in the case of Q 33:33.
A third exegetical method that Qaradawi applies is interpreting the Qurʾan
while making use of the companions’ and the followers’ understanding of it.
Thus, ʿAʾisha’s going out to the Battle of the Camel shows that she did not un-
derstand Q 33:33 as preventing her from participating in public activity out-
side her home. Qaradawi explains that due to the companions’ physical and
spiritual closeness to the Prophet, their consensus on a particular understand-
ing of the Qurʾan is part of the sunna. If they however disagree on a certain
interpretation, this means that each one of them understood it through his
individual discrimination, which is fallible, since they are human; in this situ-
ation, the exegete may choose the view of a companion that seems best to
him and even create a novel interpretation. In “Tarshih,” Qaradawi makes a
slightly different use of this principle: he relies not on the companions’ inter-
pretation of a certain verse, but rather on historical evidence for an action of
the Prophet’s wife—certainly someone very close to the Prophet—to deduce
how she u ­ nderstood Q 33:33.

10 Rahman, “Riba and Interest,” 5; Wadud, Qurʾan and Women, 5.

11 Qaradawi, Qurʾan, 249–55.

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A fourth exegetical method is interpreting the Qurʾan according to contem-

porary consensus. According to Qaradawi, today there is almost wall-to-wall
consensus for the legitimacy of women going outside the home to study or to
work. It should be noted, in this context, that his understanding of consensus
is broad and includes both the juristic and the public consensus, represented
by the long-term continuity of a given practice. Epistemologically, the practical
public consensus upgrades the learned consensus and raises it to the level of
undisputed textual proof.
Finally, Qaradawi interprets the Qurʾan in the light of maṣlaḥa. This cate-
gory includes considerations such as the use of the electoral power of devout
Muslim women to undermine the secular control of parliament, and consid-
ering internal and external secular criticism of Islam when deciding upon a
legal ruling. All these considerations come under the rubric of the protection
of religion, which is one of maqāṣid al-sharīʿa.

Evidence from the Hadith Regarding Women’s Right to Hold

Public Office

According to Islamic tradition, when the Prophet was informed of the death of
the Sassanid emperor and that his daughter had succeeded him, Muḥammad
said: “A nation will never succeed that appoints a woman over them (lan yufliḥu
qawm wallaw amrahum imrāʾatan).” Classical and modern hadith experts con-
sider this report, which was transmitted from the Prophet by the companion
Abu Bakra al-Thaqafi (d. 671; hereafter: Abu Bakra’s report), to be reliable.
Qaradawi is no exception and therefore he does not discuss the authenticity of
this report, only its correct interpretation.12
Abu Bakra’s report was—according to most classical exegetes—and re-
mains one of the strongest and clearest pieces of evidence for the prohibition
of women serving in public capacities in which they have governance (wilāya)
over men. Many jurists (e.g. Ibn al-Qayyim) viewed women as unfit for any
sort of governance, whether “great” (wilāya kabīra), such as a ministerial or
governmental post, or “small” (wilāya ṣaghīra), such as a judicial position.
Traditional exegetes do not regard this report as merely descriptive (mujarrad
al-ikhbār), that is, a Prophetic reference to the Persians’ future defeat because

12 Unlike Qaradawi, the Moroccan feminist Fatima Mernissi (Women and Islam, 49–61)
claims that Abu Bakra was biased and unreliable and therefore his report must be
rejected.

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of a woman becoming their ruler.13 Rather, these exegetes consider the report
also to be prescriptive, i.e. a legal instruction valid in all times and places, ac-
cording to which appointing a woman to a position of general rule will neces-
sarily lead to lack of success. Most traditional exegetes derive this generality
from the report’s format and style: Using the expression “A nation will never
succeed” indicates in their opinion that it refers to the future. In addition, that
the words “nation” (qawm) and “woman” (imra‌ʾa) appear as indefinite nouns
in a context of negation, proves that this is a prohibition of any woman in any
generation being appointed to public office. This was the understanding of all
the companions and the eponyms of the law-schools, without exception. This
consensus was well expressed by the Hanbali Ibn Qudama (d. 1223), who said,
based on this report, that a woman is unfit for the caliphate or the governor-
ship of cities, and therefore neither the Prophet nor any of his deputies and
their successors appointed a woman as a governor of a province or as a judge.14
In other words, the juristic consensus on this rule is reinforced by centuries of
non-appointment of women to public office in practice (with perhaps a very
few rare exceptions). A minority view among the jurists, expressed for example
by the Zahiri Ibn Hazm, viewed this report as evidence only of the prohibition
of a woman standing at the head of the governmental hierarchy (al-imāma),
whereas her appointment to lesser offices is permitted.15
Regarding Abu Bakra’s report, Qaradawi asks16 whether the report has gen-
eral significance, or whether it refers solely to the Persian episode.17 He admits
that most theorists accepted the principle that what counts legally is the gener-
al significance of a statement, not its specific circumstances (al-ʿibra bi-ʿumūm
al-lafẓ, lā bi-khuṣūs al-sabab). This principle applies even if the Prophet’s state-
ment was a response to a question or a reaction to an event that occurred, so
long as the format of the statement was general. However, Qaradawi claims
that there is no consensus among the scholars about this principle. According
to him, the companions, Ibn ʿAbbas (d. 687), ʿAbd Allah b. ʿUmar (d. 692) and
others, demanded that the circumstances of an utterance be taken into ac-
count, to prevent mistaken and extreme interpretations such as those of the

13 In the modern period, Muhammad al-Ghazali suggested that this report is descriptive
rather than prescriptive. See Brown, Hadith, 163. It seems that Qaradawi follows al-Ghaza-
li’s suggestion, albeit in a more implicit form.
14 Ibn Qudama, Mughni, 9:31.
15 http://www.alukah.net/sharia/0/4223/ [accessed 20 December 2015].
16 Qaradawi’s discussion of Abu Bakra’s report appears in “Munaqasha,” 426–8.
17 Muhammad al-Ghazali launched a campaign against Abu Bakra’s report in the late 1980s,
arguing that it had been removed from its context; see Khalafallah, “Muslim women,” 46.

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Khawarij, who interpreted verses that referred only to polytheists as applicable

to believers as well. We may conclude from this that the circumstances of the
utterance of Abu Bakra’s report must also be taken into account. Qaradawi
does not provide references for the views he attributes to Ibn ʿAbbās and Ibn
ʿUmar.
If we were to understand this report generally, Qaradawi continues, it would
contradict the Qurʾanic verses about Balqis (the biblical Queen of Sheba). He
quotes Q 27:32–34 and 44, which explicitly state that the kingdom’s council
gave the Queen the power to decide on the topic of King Solomon’s proposal of
conversion to Islam on behalf of the entire public, a proposal that the Queen
eventually accepted. Qaradawi views this as a Qurʾanic precedent for political
leadership by a woman, whose decision-making skills and wisdom surpassed
those of men. He protests at the al-Azhar scholars’ disregard in their legal
opinion for these verses, which were included in the Qurʾan for good reason.18
Modern reality, in which female leaders, such as Margaret Thatcher, Indira
Gandhi and Golda Meir, were better for their countries than males, also dem-
onstrates that this report does not have general applicability.19
Even if we assume, for the sake of argument, that Abu Bakra’s report has
general significance, Qaradawi says, there is consensus among Islamic learned
men (ijmā’ ‘ulamā’ al-umma) that it refers to a woman’s complete rule (wilāya
‘āmma; wilāyat al-amr) over men, and not to partial rule (wilāya khāṣṣa). In
this context, there is nothing to prevent a woman being appointed as a min-
ister or a judge. As a historical precedent, he brings Caliph ʿUmar’s appoint-
ment of a woman named al-Shifa‌ʾ bt. ʿAbdallah al-ʿAdawiyya (d. 640) as market
inspector.20
Some might say that members of parliament achieve complete rule, since
the president and government are answerable to parliament, and that there-
fore women are precluded from being elected to parliament. In order to refute
this claim, Qaradawi engages in a detailed discussion of the role of parliament
in a democracy, at the end of which he states that membership of parliament
is not complete, but rather partial, rule. He explains that parliament has two
roles: overseeing the executive branch (muḥāsaba, murāqaba) and legislation
(tashrīʿ).21 He defines the function of overseeing the executive branch by way
of the two Islamic principles of “commanding good and forbidding evil” (al-
amr bi-l-maʿrūf wa-l-nahy ʿan al-munkar) and “giving good advice [to rulers]

18 Al-Ghazali (ibid., ibid.) made the same comment.

19 Al-Ghazali (ibid., 41–2) made the same comment.
20 Al-Ghazali (ibid., 46) used the same precedent.
21 Qaradawi, “Tarshih,” 416–20.

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on religious matters” (al-naṣīḥa fī al-dīn), which are the duties of every Muslim
according to the Qurʾan and the sunna. Qaradawi provides historical evidence
of women advising the Prophet and Caliph ʿUmar on public affairs. He argues
that, if women advise the ruler privately, nothing prevents them from taking
part in a body whose function this is. The opponents’ claim that the shūra
that elected Caliph ʿUthman did not include women, is not relevant, as the
law changes with the changing circumstances. Additionally, the laws of the
shūra do not go into precise detail with reference to men or women, so that
the matter remains open to the discretion of Muslims in every generation.22 If
we look at modern reality, we will see many cases in which women stand at the
head of bodies within which they manage men. In addition, that parliament
has the right to oversee the government does not mean that it stands above
it—even the Rightly Guided Caliphs called upon the community to correct
them if they were wrong. A woman has the right to correct her husband in the
domestic sphere if he is wrong. Even if we accept the claim that the parlia-
ment stands above the government, this supremacy is institutional and not
personal. Pragmatically nodding to his opponents—and weakening his prin-
cipled case—Qaradawi points out that the history of the Muslim world has
shown that a majority in parliament is reserved for men, so that in any case
women would form a minority there. This situation is not going to change in
the near future.23
As for the legislative function of parliament, opponents of female member-
ship of this body claim that legislation is more important than heading the
executive branch and therefore a woman must not deal with it. Qaradawi re-
plies to this by pointing out that in Islam Allah is the only lawmaker, and the
believers are only required to fill in lacunae or to detail general instructions
by way of ijtihād—which is accessible to both men and women. For example,
ʿAʾisha practiced ijtihād, and her legal innovations were written down.24 The
fact that only few female jurisprudents are recorded in Islamic history is due

22 Qaradawi’s argument with regard to the shūra echoes ʿAbd al-Raziq’s classic text, al-
Islam wa-uṣul al-hukm, published in 1925. ʿAbd al-Raziq’s main claim in this book, written
against the background of the abolition of the Ottoman caliphate and the debate in the
Muslim world over the possibilities of its renewal, was that Muḥammad was only the
messenger of Allah and a prophet, not a political personage. ʿAbd al-Raziq concluded
from this that in every generation, Muslims are free to decide on the political format that
suits them, according to the general principles of the Qurʾan and the sunna, and accord-
ing to rational considerations dependent on the circumstances and needs of the time.
23 Qaradawi, “Tarshih,” 414.
24 Muhammad al-Ghazali encouraged his students to study the jurisprudence of ʿAʾisha; see
Khalafallah, “Muslim women,” 47.

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to circumstances that prevented their access to knowledge, circumstances that

have changed in the modern period. Today there are women whose achieve-
ments surpass those of men. It is appropriate that women, due to their person-
al experience, be involved in legislation, particularly on family matters. Even
Caliph ʿUmar took advice from a woman on such matters.
Qaradawi sums up his opinion by arguing that, in a democracy, different
bodies and institutions share responsibility and authority, so that individual
membership in Parliament does not constitute complete rule. The government
in a democratic regime, as opposed to the monarchical one, bears joint respon-
sibility, so that the Prime Minister, even if a female, does not have complete
rule. The Prime Minister represents a political party that may fail at the elec-
tions, and his own opinion may be rejected within his party.
Analyzing Qaradawi’s argument about Abu Bakra’s report reveals that the
rhetorical structure that he constructs in order to refute the claim that this re-
port forms cogent proof for an eternal prohibition on women serving in public
office is gradual, from lesser to greater. In the first stage, he attempts to limit
the meaning of the report to the original historical context by referring to the
circumstances of its utterance by the Prophet. As he is aware that this is a weak
argument in the eyes of Muslim traditionalists, he moves to the next stage.
Even if we understand this report as having a general significance, he says, its
prescriptive value is low as it contradicts a Qurʾanic precedent (the Queen of
Sheba). In addition, most commentators see it as proof only of the prohibition
for women to hold supreme rule, but not for women to be forbidden to serve
in lesser political offices. In the third and final stage of his argument, Qaradawi
shows, by analyzing the role of parliament in democratic regimes according to
Islamic criteria, that female membership in modern parliaments is a case of
partial rule rather than of general rule, and thus is legally permissible.
As for Qaradawi’s claim that it is impossible for Abu Bakra’s report to con-
tradict the Qurʾanic message about the Queen of Sheba: We recall that, ac-
cording to Qaradawi’s juristic methodology, it is impossible for a Prophetic
report to contradict the Qurʾan, since the Qurʾan is a more reliable source of
law. Interpreting the ḥadith in light of the Qurʾan is the first of eight rules for
the proper use of hadith in the framework of juristic rulings that Qaradawi
elaborates. If there appears to be a contradiction between the two, one must
conclude that the report is not reliable, or that it has not been properly
understood.25

25 Qaraḍāwī, Sunna, 113–14. As an example, he gives ḥadīth al-gharānīq, praising the three
daughters of Allah, which directly contradicts a Qurʾanic warning of the dangers of
polytheism.

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Within the framework of his analysis of Abu Bakra’s report, Qaradawi re-
fers twice to the term consensus. At first, he states that most classical theorists
agreed on the principle that “what counts legally is the general significance of
a statement, not its specific circumstances” (see above), however there was no
consensus on this, as the companions Ibn ʿAbbas and Ibn ʿUmar required taking
the circumstances of utterance of every Prophetic report into consideration.26
From this statement by Qaradawi, it appears that for him, the classical juristic
consensus had to be unanimous and a majority opinion was not sufficient for
constituting a consensus.27 It is interesting that Qaradawi regards the above-
mentioned two companions as expert theorists whose opinions are counted
as preventing the achievement of consensus on a juristic principle. Needless
to say, in the companions’ time the theory of Islamic law did not yet exist. It
seems that Qaradawi’s statement reflects his Salafi inclination, i.e. according
legal precedence to the companions over the eponyms of the law-schools and
their successors.
Qaradawi’s second claim, i.e. that there is a consensus among Muslim
scholars that the prohibition deriving from Abu Bakra’s report applies only to
a woman’s general rule, and not to partial rule, also seems odd. As detailed
above, the majority opinion of scholars up to the modern period was that
the report prohibits women from any public office in which they would have
authority over men. If Qaradawi means the majority of modern scholars, his
claim is more reasonable, considering that he ignores the opinions of some
current Salafi ʿulama‌ʾ in general, and Wahhabi ʿulama‌ʾ in Saudi Arabia in par-
ticular, who object vehemently to women holding any public office.
Qaradawi’s analysis of the function of parliament in a democratic regime
through an Islamic prism is acceptable within the current project to give a
stamp of approval (at least in theory) to the operation of democratic institu-
tions in Muslim nation-states.28 He examines the legislative branch’s supervi-
sion of the executive branch via the Islamic principles of “commanding good
and forbidding evil” and “giving good advice [to rulers] on religious matters,”
principles that according to him apply to both men and women. He restricts

26 An alternative opinion to that of Qaradawi is presented by the modern jurist, ʿAbd al-
Karim Zaydan (al-Wajiz, 224–5), who claims that this principle was accepted by all
Muslim jurists from the time of the Prophet and onwards.
27 Zaydān (ibid., 180) confirms that consensus should be unanimous, i.e. if even one scholar
disagrees, there is no consensus. He however admits that in terms of likelihood, it is pref-
erable to accept the majority opinion, unless it is clear that the minority opinion is more
correct.
28 See similar views by al-Turabi, “Islamic State,” 241–51.

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the legislative sovereignty of the parliament by claiming that the latter is sub-
ordinate to the divine shariʿa and its function is limited to ijtihād aimed at
filling lacunae or detailing general legal instructions. Both sexes, according to
Qaradawi, may perform ijtihād. By lessening parliament’s importance as a leg-
islator, and by claiming that political power in a democratic regime is divided
among many institutions, Qaradawi hopes to soften the opposition of conser-
vative elements to female membership in parliament.

Eliminating Pretexts

Opponents of women’s election to parliament claim that their membership

would lead to sexual temptation ( fitna) in the public sphere due to the physi-
cal contact (ikhtilāṭ) between them and male parliament members. To prevent
this inappropriate contact, they wish to “eliminate the pretexts” leading to this
sexual temptation, that is, to prevent women from the right to elect and be
elected to parliament. Qaradawi claims29 that there has been a trend, mistaken
in his opinion, throughout Islamic history of preferring “eliminating pretexts”
to authentic and clear texts. This trend prevails today among conservative
scholars (referring mainly to Saudi official ʿulama‌ʾ), who claim that sexual li-
cense, which is one of the symptoms of modern Westernization, requires ad-
ditional use of “eliminating pretexts.”
Qaradawi states that overuse of the mechanism of “eliminating pretexts” is
wrong, and that in every case the jurist must weigh the benefits and damages
of its use carefully. With regard to the topic before us, blocking a woman’s path
to parliament on the grounds of “eliminating pretexts” will cause greater dam-
age than it would bring benefit, as the electoral power of female supporters of
Islam and their influence in parliament will be lost. The fact is that the majori-
ty has rejected the use of “eliminating pretexts” in the case of women going out
to work and study. Female members of parliament can be trusted to preserve
their modesty, as is required of any female worker or student.30 In addition, the
construction of physical barriers between men and women in parliament, by

29 Qaradawi, “Tarshih,” 413.

30 In one of the TV programs of “The shariʿa and life”, Qaradawi remarked that the term
ikhtilāṭ opposes the true nature of Islam and that it penetrated the legal discourse over
the course of the reactionary period of Islamic culture. The genuine Islamic perception of
gender relationship is of mutual meeting (liqāʾ) between male and female believers; see
Khatib, Qaradawi, 297–8.

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allocating separate rows or even a separate wing for women, will help women
preserve their chastity.
Qaradawi’s objection to the unrestrained use of “eliminating pretexts,” not
only in the context of female modesty, is consistent. We recall his reference to
some contemporary jurists’ fear of charlatans performing ijtihād, which has
caused the former to oppose the re-opening of the gates of ijtihād, based on
considerations of “eliminating pretexts.” Qaradawi objects to this policy, argu-
ing that it brings more harm than benefit. In another place, he discusses the
objection of certain jurists to artificial insemination, on the grounds of “elimi-
nating pretexts,” i.e. fearing that this medical procedure would cause confusion
in deciding paternity. He states that artificial insemination is permitted, if all
available scientific precautions are taken to prevent confusion over the identi-
ties of the originators of the sperm and the ovum.
Qaradawi’s objection to unbalanced use of “eliminating pretexts” for pre-
venting women’s access to the public sphere is characteristic of the modern-
ist sector of contemporary ʿulama‌ʾ, who oppose the conservative Saudi ones.
Thus, for example, Muhammad al-Ghazali disagreed with the latter’s view that
exposing a woman’s face is a pretext to adultery. According to him, Q 24:30
calls upon the believers to keep their glances [from women] and to guard their
pudenda—an utterance that makes it clear that women’s faces were uncovered
during the Prophetic period. In addition, the Prophet did not order women to
cover their faces and, from reports that record his conversations with women,
it appears circumstantially that their faces were uncovered. Furthermore,
women are required to uncover their faces during the pilgrimage, and uncov-
ered faces have become accepted during other prayers.31
The Muslim-American law professor and jurist, Khalid Abou El Fadl, vehe-
mently attacks the Saudi legal opinions that forbid women from driving, on
the ground of “eliminating pretexts,” that is, that women driving would lead to
mingling of the sexes and to improper seclusion (khalwa) of men and women.
He explains that the term “eliminating pretexts” is the other side of the coin
of maṣlaḥa mursala. According to him, reformists use maṣlaḥa as a means to
justify policies that they wish to promote, while conservatives use “eliminating
pretexts” to oppose social and political reforms. The use of both mechanisms
requires the balancing of interests, since any prevention of evil denies a certain
group, usually a weak one, its freedom of action. Likelihood close to certainty
(al-ẓann al-ghālib) that the forbidden deed will lead to the feared evil is nec-
essary; likewise, the evil we fear must be greater than the good achieved by
performing the deed. According to Abou El Fadel, it is clear that contemporary

31 Al-Ghazali, Sunna, 44–51.

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Saudi ʿulama‌ʾ go tyrannically beyond these conditions and make random and
impressionist rulings that suit their social values.32

Conclusion

The guiding principles that Qaradawi indicates as a prelude in “Tarshih” and

that inform his legal opinion are the same ones he discusses in his theoreti-
cal writing. As for the first guiding principle, he insists that only proven and
clear texts from the Qurʾan and the Prophetic sunna are worthy of forming the
basis of jurisprudence. The need for lenient rulings is a major characteristic of
Qaradawi’s methodology as well. He states that legal leniency is worthy of im-
plementation in the present even more than in the past, due to the difficulties
facing Islam in the modern period. In public matters, leniency is required even
more than in private matters, since they influence many people and since the
emotional intensity of the debate around them is greater. The need to change
rulings of human transactions in accordance with changing circumstances is
also a cornerstone of Qaradawi’s approach.
The severity of rulings towards women, including what he views as negating
their legal rights by the conservative Salafi stream, ostensibly due to the need
to uphold public morals, is seen by Qaradawi as a serious problem that causes
Islam and Islamic law to be denigrated unjustly both by liberal streams with-
in Islam and by non-Muslim critics. In Qaradawi’s eyes, the need to improve
Islam’s image in this aspect is important from two perspectives. Internally, it is
required for strengthening Islamist elements in their campaign for implement-
ing Islamic law in their various countries. Externally, this improved image is
necessary to prevent international organizations dealing with human rights
generally and women’s rights in particular from interfering with the internal
matters of Muslim states, on the grounds of protecting the interests of Muslim
women.
In his legal opinion on women in politics, Qaradawi engages in a delicate,
thorough and penetrating analysis of the relevant textual indicators from the
Qurʾan and the sunna. This leads him to explain away the apparent contra-
diction that traditional interpreters found between Q 33:33 and Abu Bakra’s
report, on the one hand, and the permissibility of women occupying po-
litical positions, on the other. Here Qaradawi uses the juristic mechanism of
takhṣīṣ. By suggesting that the rule contained in Q 33:33 referred specifically
to the Prophet’s wives and that Abu Bakra’s report only prevents women from

32 Abou El Fadl, Speaking, 190–2.

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attaining complete political rule, he reaches the conclusion that there is no

definite text that prohibits women from serving in political positions in which
they have partial rule over men. At this point, because membership in parlia-
ment is a novel theme that the law-schools did not discuss, the option of se-
lective ijtihād is unavailable and Qaradawi conducts creative ijtihād. Thus, he
comes up with an unprecedented rule—women are permitted to elect and be
elected to parliament.
In his analysis of the Qurʾanic materials, Qaradawi puts a gamut of exegetical
strategies to use. He interprets the Qurʾan (1) through the Qurʾan; (2) through
reference to the “circumstances of revelation;” (3) according to the current ma-
jority social practice; and (4) in light of the best interests of the Muslim com-
munity. Regarding Abu Bakra’s report, Qaradawi applies inter alia the principle
that the sunna has to be interpreted in light of the Qurʾan. Since it is unaccept-
able that a Prophetic report contradicts the Qurʾanic verses about the Queen
of Sheba, the jurist must conclude that Abu Bakra’s report does not constitute
a general and binding rule. Finally, Qaradawi is consistent in opposing an un-
balanced use of “eliminating pretexts.” Weighing the sociopolitical advantages
and disadvantages emanating from women’s membership in parliament, he
concludes that the advantages outweigh the disadvantages by far.
Stowasser, who analyzed a number of Qaradawi’s writings on gender issues
between the 1960s and the 1990s, discerned a development of his focus from
the rights and duties of females in the domestic arena to those in the public
arena. She doubted whether this development reflected a real change in his
paradigmatic thinking on women.33 Asking Qaradawi about it in the course
of an interview, he responded that there had been no substantial change of
his opinions in the liberal direction, only that in the course of time some legal
matters became clearer to him.34 I tend to accept Qaradawi’s response at face

33 Caeiro and al-Saify (“Qaradawi in Europe”, 126), following Mir-Hosseini, label Qaradawi’s
attitude on gender issues Neo-Traditional, i.e. an attitude that is sensitive to the patriar-
chal character of Islamic gender norms and at the same time refrains from interpreting
these norms in the light of Western models that are perceived as inauthentic. This atti-
tude establishes a space of “gender equity” (iqtirān), located between gender inequality
and equality.
34 Stowasser, “Qaradawi on women,” 182–3. Qaradawi related that he was influenced by some
innovative rules regarding women developed by Muhammad al-Ghazali. Khalafallah
(Muslim women, 42–5, 47), who analyzed the transformation in al-Ghazali’s writings
on women (from conservative opinions in the 1950s to more liberal ones in the 1980s
and 1990s) came to the same conclusions, i.e. that al-Ghazali did not become a feminist.
Rather, his reevaluation of the hadith made it clear to him that the latter had been ma-
nipulated along Islamic history by patriarchal misogynist socio-political considerations.

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Case Study III—Politics and Gender 163

value. When engaging with a legal problem, his starting point is not necessar-
ily a coherent ideological or thematic agenda. In addition, it does not seem
that he adopts a lenient opinion to gain the sympathy of his audience or a
strict opinion when he chooses to appear more authentic.35 What seems to me
more convincing is that he mainly applies his juristic methodology and prin-
ciples carefully and consistently. Moreover, his change of focus from the rights
and duties of females in the domestic arena to those in the public arena may
be attributed to the empowerment of political Islam in the 1970s and 1980s,
accompanied by the establishment of Islamic republics. These developments
compelled the ʿulama‌ʾ to contribute their vision regarding the construction
and the operation of the Islamic political sphere, in general, and the role of
women in that sphere in particular.

This realization is responsible for the revisionist book on the sunna that he published in
the late 1980s. To conclude, according to Khalafallah, al-Ghazali’s basic motivation was
not ameliorating the status of women but correcting Islamic legal methodology that had
been twisted by past scholars.
35 As implied by Stowasser, “Qaradawi on women,” 192. Like Stowasser, Euben and Zaman
(Princeton Readings, 229) argue that the rigidity of some of Qaradawi’s legal positions
emphasizes the modesty of his other opinions, thereby strengthening his attraction to
audiences that would have been repelled by him had he been too lenient.

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Conclusion: Qaradawi’s Juristic Thought and
Practice in Historical Perspective

From the perspective of legal theory, one of the main phenomena associated
with contemporary movements of political Islam is a literal and simplistic in-
terpretation of the Qurʾan and the hadith. At the opposite pole of the spec-
trum of Islamic movements stand intellectuals who operate in the academy,
both in Muslim states and in the West, who undermine the authenticity of the
hadith, interpret the Qurʾan in light of theories of literary and historical criti-
cism and resort to extensive use of social utility. Both trends, political Islamists
and Westernized modernists, hold that the centuries-old heritage of Islamic
jurisprudence and its authorized interpreters, the ʿulama‌ʾ, are unnecessary for
understanding the true nature of Islam. Facing these challenges and against
the background of the education and information revolutions that took place
in the 20th century (especially in its second half), Qaradawi has sought to pro-
pose a middle way, combining the juristic heritage with consideration of social
needs, which would return the ʿulama‌ʾ to their traditional position as the spiri-
tual leaders of their communities.
Among the difficult circumstances with which the contemporary Islamic
jurist has to contend is the strength of the nation-state, which is substantially
superior to that of any Islamic state prior to the Ottoman Tanzimat of the late
19th century. In the legal field, the nation-state has expressed its power mainly
through the mechanism of codification, which unifies the process of creat-
ing the law. The legislature enforces the codified laws on civil society through
a hierarchal system of state courts, which are expected to apply it in a uni-
form and consistent way. Codification, especially that part of it imported from
Europe, has reduced the traditional role of the ʿulama‌ʾ as the shapers of the law
considerably. Moreover, it emptied the law-school—the main organizational
and doctrinal framework within which the ʿulama‌ʾ operated up to the modern
period—of almost all its significance. One should remember however that the
modern nation-state is not solely responsible for the demise of the law-school.
As explained earlier, attacks on strict adherence to a particular law-school date
back to Ibn Taymiyya and, starting from the 17th century, scholars in Arabia
and India emphasized a direct reliance on the primary sources, especially the
hadith. Adding to that the loss of exclusivity that the ʿulama‌ʾ had enjoyed in
the educational, administrative and judicial fields up to the late 19th century,
one can easily appreciate the depth of the crisis that the ʿulama‌ʾ experience in
the current age. Considering these challenges, the ʿulama‌ʾ have had to choose

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Conclusion 165

between opposing the processes that the nation-state promoted and refrain-
ing from cooperating with it, thereby becoming irrelevant,1 and influencing
these processes by articulating them in religious and juristic terms, thereby
granting them Islamic legitimacy. Qaradawi has clearly chosen the second op-
tion, understanding that codification and the almost total irrelevance of the
traditional law-school as a viable organizational body (not as a legal corpus)
are practically irreversible.
Asked to summarize his attitude towards the Islamic juristic heritage,
Qaradawi responded that his principles are a synthesis between the heritage
and current times, between the hadith and the fiqh and between specific
texts and general intentions.2 Qaradawi’s juristic system, analyzed in detail in
Chapters 2–4, draws on the fiqh corpus in a flexible way that makes it possible
to adapt the law to current needs, according to considerations of maṣlaḥa.
He attains this flexibility mainly by asserting that only texts from the Qurʾan
and the Prophetic hadith that are definite in terms of their authenticity and
meaning provide certain knowledge of Allah’s will and therefore are juristi-
cally binding and not subject to ijtihād. Since such texts hardly exist, the great
majority of legal texts are epistemologically probable and the jurists disputed
their meaning. From this, it emerges that the scope of juristic consensus is very
limited and that most juristic topics are open to reinterpretation.
In classical law, the jurists debated for centuries the border between positive
legal rules that were considered fundamental (aḥkām uṣūliyya) and thus un-
changeable, since they were clearly proven, based on a definite text or human
reason, and positive legal rules that branch out of them (aḥkām furūʿiyya) and
were thus liable to reinterpretation. A current authoritative trend, mainly
among the Saudi Salafis, the Neo-Ahl al-Hadith and movements of political
Islam, seeks to expand the scope of the fundamental rules at the expense of
the probable rules, thereby restricting the possibility of juristic disagreement.3
In contrast, Qaradawi’s considerable narrowing of the space of the fundamen-
tal legal rules enables him to use a strong rhetoric of enabling reforms, because
this narrowing opens a large number of legal topics up to reinterpretation.
In Qaradawi’s system, ijtihād in the large area of disputed legal topics may
be either selective or creative. Selective ijtihād draws upon the great variety of
fiqh opinions, without any commitment to those of a particular law-school,

1 According to Crecelius (“Non-ideological Responses”, especially 208), such opposition, which

in the 1950s characterized the reaction of the ʿulama‌ʾ of al-Azhar to the Egyptian govern-
ment’s reformist plans, led the ʿulama‌ʾ to isolation.
2 Khatib, Qaradawi, 283–4.
3 Abou El Fadel, Speaking, 65, 175.

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166 Conclusion

and includes opinions that preceded the crystallization of the law-schools (es-
pecially of the companions), minority opinions within the law-schools, and
the opinions of jurists who did not affiliate themselves to any particular law-
school. For Qaradawi, the entire range of these opinions is a legitimate pool on
which to base juristic solutions. This is because this pool is part of Islamic ju-
ristic tradition and because changing circumstances may create a situation, in
which an opinion, that in the past a particular law-school considered odd and
insignificant, becomes more suited to current needs than the majority opinion
of the same school. In this respect, Qaradawi may have been more circumspect
than Rida and other Modern Salafis in his regard for the law- schools.4 When a
jurist engages in creative ijtihād, Qaradawi holds that he should base it mainly,
in addition to the relevant texts, on maṣlaḥa, informed by al-Shatibi’s version
of maqāṣid al-sharīʿa. Reliance on the practice of the companions and on fiqh
opinions in the framework of selective ijtihād, on the one hand, and on the
maqāṣidī method of an esteemed pre-modern scholar, such as al-Shatibi, on
the other, are the two main components that link Qaradawi’s system to Islamic
juristic tradition, thereby bestowing legitimacy upon it.
Western legal historians often evaluate the current changes of Islamic legal
theories as a distancing from the classical method of discovering the divine
law and expanding it, based on consensus and analogy (the Ashʿari position),
to a method in which the jurist uses his reason to discover the justifications
underlying the divine orders (close to the Muʿtazili position). Through this
change, universal moral principles, identified as maqasid al-sharīʿa, supersede
specific textual orders. This interpretive strategy emphasizes maṣlaḥa as the
main criterion for developing novel legal rules and the authority of legal texts
is restricted to the field of worship. This turn involves ontology, epistemology
and the interpretation of texts, and starts from a new theology of the universe
that sees human beings as Allah’s guardians who run His business on earth in
His behalf.5 This evaluation is inaccurate where Qaradawi is concerned. First,
in his system, considerations of maṣlaḥa may not supersede a text that is defi-
nite in terms of its authenticity and meaning. Second, he does not limit the
import of texts to the field of worship; he holds that certain legal rules from
the realm of human transactions, based on definite texts, such as the prohibi-
tion of ribā and the permission for polygyny, are not open to change through
reinterpretation.
Qaradawi’s admirers, who are usually his students and close associates, praise
his achievements. They claim that he has revived traditional fiqh, adapted it to

4 Zaman, Modern Islamic thought, 95.

5 Johnston, “A turn in the epistemology,” 234–5.

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Conclusion 167

the spirit of the age and renewed its role in public life that previously was re-
stricted by the nation-state. He has nourished the political aspects of Islamic
law (al-fiqh al-siyāsī) by dealing with topics such as the status of non-Muslim
minorities, the state, human rights, economy and poverty. Although he did not
invent the idea of the “comprehensiveness of Islam” (shumūl al-Islām), he suc-
ceeded in making it part of popular consciousness by shaping Islam as a way
of life for the Muslim masses. He has responded well to the challenges of the
time by penetrating fields that others did not dare enter and introduced the
concepts of the jurisprudence of leniency, priorities, intentions and Muslim
minorities to contemporary Islamic discourse. Finally, he has founded—to-
gether with Muhammad al-Ghazali in the field of political thought—a broad
central trend that he is able to maneuver.6
Among contemporary ʿulama‌ʾ, opinions on Qaradawi, who is a polarizing
figure, vary. Salafis find him too permissive, others reject his legal opinions
even when they conform to his interpretive methods and still others, especially
conservative ʿulama‌ʾ, think that he does not have a consistent legal methodol-
ogy and that his “scholarly enterprise is deemed to be the least significant thing
about him.”7 According to Zaman, part of the unease that conservative ʿulama‌ʾ
feel with respect to Qaradawi is connected to his intellectual genealogy, which
goes back not only to al-Azhar but also to Islamist avant-gardists, such as al-
Bana, who has been treated by many ʿulama‌ʾ “with grave misgivings.” An im-
portant part of this unease is rooted in Qaradawi’s efforts

[t]o engage with the foundational texts unconstrained by the established

norms of the legal tradition and to draw on that tradition in a way that
is at best eclectic. His insistence on the need to transcend traditional
school affiliations causes unease even among some of those who are less
constricted by the school tradition than were their predecessors.8

Finally, “the appeal of Qaradawi’s carefully advertised persona as a ‘cen-

trist’ scholar depends on portraying many others as helplessly chained to an

6 Khatib, Qaradawi, 130–1.

7 Zaman (Modern Islamic Thought, 312–13) brings as an example a short essay written by
the Indian scholar Taqi ʿUthmani for the two-volume book published in celebration of
Qaradawi’s 70th birthday. He wrote there that Qaradawi is “a human being before he is a
Muslim, an observant Muslim before he is a preacher and a preacher before he is a scholar
and a jurist.” Some observers have argued that a number of his discussions, such as the one
on capitalism, are superficial; see Khatib, Qaradawi, 132–3.
8 Zaman, ibid., 313.

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168 Conclusion

anachronistic tradition.” It is no surprise that such ʿulama‌ʾ are not particularly

friendly to him, even if they “spared him their sharpest rejoinders.”9 Liberal
Muslim intellectuals regard Qaradawi’s opinions on apostasy from Islam,
women and the use of violence as ambiguous and improperly conservative.
They often criticize him for trying to offer Islamic solutions to modern prob-
lems and consider his categories of permission and prohibition simplistic.
Moreover, they hold that his use of the fiqh as a framework for action is struc-
turally flawed and that meaningful religious change requires not ad-hoc reform
but radical reinterpretation. This polarization regarding Qaradawi exemplifies
the intellectual division in the Muslim world that has enabled him to promote
his position as representing the middle path.10
One finds low appreciation of Qaradawi’s scholarship in academic research
as well. Feldman holds that he is not a distinguished scholar and that his writ-
ing on Islam and democracy is theoretically not the most sophisticated one can
find. He however holds that sophistication is not the only mark of importance
and that the study of ideas necessitates attention to popular manifestations
of debates that spread beyond the discourse of intellectuals and penetrate the
public sphere in a broader sense. As for Qaradawi, the synthesis that he makes
between the conceptions of democracy and Islamic values is “a creative, dis-
tinctively legal approach to the engagement of ideas that are understood to be
grounded in disparate theories of value.”11
To appraise Qaradawi’s writings, especially his legal opinions, one may use
criteria that originated in the fiqh and criteria developed in academic scholar-
ship in the field of hermeneutics. Abou El Fadl, discussing criteria of the first
type, argues that five contingencies form the basis for the relationship between
the legal scholars—the “special agents”—and nonprofessionals, the “ordinary
agents.” For the scholars, proving these contingencies is essential for maintain-
ing the trust of the nonprofessionals, who place in the hands of the scholars
their personal responsibility to obey Allah’s law. If they do not fulfil these con-
tingencies, the scholars may lose their authority. Abou El Fadl further explains
that these contingencies are rational necessities (ḍarūrāt ʿaqliyya) for the logic
of the relationship between Allah (the Principal), His human agents and the
divine orders. In his opinion, this rational necessity is the only way to create
a proper balance between the notion of the believer’s personal responsibility
to abide by Allah’s law, the existence of many complex legal indicators and the
role of Allah as the absolute reference point.

9 Ibid.
10 Caeiro and al-Saify, “Qaradawi in Europe,” 122–3.
11 Feldman, “Shariʿa and Islamic democracy,” 105, 118.

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Conclusion 169

The first contingency is honesty; the scholar does not censor, conceal, lie
or deceive, and he presents all the legal indicators he found. He also does not
pretend to know what he does not know. The second contingency is diligence,
i.e. the scholar exerted a reasonable amount of effort in finding and under-
standing the relevant set of textual instructions pertaining to a particular prob-
lem or set of problems. The level of diligence must rise proportionally to the
potential effect that his legal opinion has on the rights of others. The third
contingency is comprehensiveness, i.e. the jurist tried to be as thorough as pos-
sible in investigating Allah’s instructions and did not negligently decide not to
investigate or pursue certain lines of evidence for the sake of convenience or
comfort. The fourth is reasonableness, meaning that the legal solution should
be reasonable in the context of a particular interpretive community or a com-
munity of meaning. The scholar must respect the integrity of the texts he relies
on and abstain from over-interpreting them. An over-interpretation opens the
text to an endless sequence of meanings that it cannot reasonably sustain or,
on the contrary, declares a text that has more than one reasonable meaning
to have one definite interpretation. The last contingency is self-restraint. The
scholar must bear in mind that his role is to warn the believers and not to con-
trol them. He must abstain from reaching decisive conclusions if the textual in-
dicators do not permit that; he may also say that he does not know the answer.12
Western scholarship on the hermeneutical process explains that the inter-
pretation of legal texts, unlike that of literary texts, is disciplined in the sense
that it is limited by jurisprudential rules and standards, which are accepted
by a particular community. The role of objectivity in the interpretive process
is not necessarily to reach the “correct” rule but the legitimate one, which is
acceptable in the framework of “the rules of the game.”13 Upon interpreting
a text, which is part of a religious-legal tradition, the interpreter must distin-
guish between the meaning intended by the writer and the containing of this
meaning by the realities of the interpreter’s time. A responsible interpretation
adapts the meaning of the original writer to current reality without manipu-
lating the writer’s intent. To achieve this kind of adaptation, the interpreter
must ask himself what the original author would have written had he faced the
current situation. This dynamic strategy prevents, on the one hand, manipula-
tions that disrespect the text by imposing the meaning that suits the interpret-
er upon it. On the other hand, it prevents the traditional text from becoming
a dead letter and enables the rewriting of tradition to adapt it to changing cir-
cumstances and needs. As long as the interpretation is delimited by a legal

12 Abou El Fadel, Speaking, 54–7.

13 Fiss, “Objectivity and interpretation,” 233–6.

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170 Conclusion

tradition, the principle of adapting the text to current reality justifies itself,
based on the claim that our understanding of the world—the same world that
the author wished to regulate by writing the text—is gradually improving.14
The detailed analysis of Qaradawi’s juristic methodology and its application
in his legal opinions testifies to his faithfulness to his juristic methodology and
the consistency with which he applies it. When engaging with a legal prob-
lem, his starting point is not necessarily a coherent ideological or thematic
agenda. In addition, it does not seem that he adopts a lenient opinion to gain
the sympathy of his audience or a strict opinion when he chooses to appear
more authentic. Even if we assume for the sake of discussion that he has a
pre-decided agenda before he writes his legal opinions, he manages to justi-
fy it in a convincing and consistent way according to his “rules of the game,”
thereby legitimizing his opinions. In his legal opinions, he conducts a delicate,
thorough and penetrating analysis of all the relevant textual indicators from
the Qurʾan, the sunna and the fiqh literature. He presents to his readers all his
evidence in an honest and clear way, including indicators or interpretations
that supposedly contradict his own (e.g. his debate with al-Azhar’s opinion on
the political rights of women). His level of diligence rises proportionally to the
level of social sensitivity of the topic at hand and its public profile, as implied
by his statement that more juristic leniency is required in sensitive social and
cultural questions that divide Islamic communities. He does not over-interpret
the Qurʾan and the hadith texts, neither by suggesting an interpretation that a
particular text cannot reasonably sustain nor by enforcing a solitary interpre-
tation on an ambiguous text. The historically sensitive reading of the Qurʾan or
the hadith texts that he proposes both respects these texts and enables them
to be relevant and adaptable to changing circumstances and ideas, such as in
the case of Abu Bakra’s report.
Being unable to determine what is “correct” or “incorrect” in modern Islamic
juristic writing, we may say that Qaradawi’s juristic writing is legitimate from
the perspective of a particular interpretive community, i.e. a group of people
that shares conventions of reading a text and understanding it and a range of
epistemological assumptions, concerns and basic values that are considered
accessible to others.15 The interpretive community of which Qaradawi is one
of the leaders believes in creating a balance between the revealed texts and
maṣlaḥa. It distinguishes itself from the community of strictly literal readers of
the revealed sources, on the one hand, and from intellectuals who dismiss the

14 Hirsch, “Counterfactuals in interpretation,” 60–8.

15 Abou El Fadl, Speaking, 90, 122–3, 153.

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Conclusion 171

hadith as a legal source entirely and who apply criteria of literary criticism to
these texts, on the other.
A number of rival contemporary trends claim to present the authentic ver-
sion of Islam in general and of Islamic law in particular. Authenticity in this
sense means being “faithful to an original” or a “reliable, accurate representa-
tion” of that original. Put differently, authenticity is the degree to which one is
true to one’s own cultural values despite external forces, pressures, and influ-
ences that are very different from its values.16 In the modern Islamic historical
context, each of the competing trends claims to be representing the true spirit
of Islam, unaffected by Western cultural influences and pressures (some would
even use the term onslaught). Since the modern representation of the “origi-
nal” version of Islam is a matter of interpretation, there is no single unique
authentic Islamic juristic method, but a number of juristic methods, some of
which are arguably more qualitative. For example, Abou El Fadl suggests that
his criteria for issuance of legal opinions is qualitatively more authentic than
the authoritarian methodology of the Wahhabi Saudi ʿulama‌ʾ.17 This is because
his system is faithful to the discursive tradition of the fiqh, a tradition that was
tolerant of a continuous debate between conflicting juristic opinions, based on
texts the majority of which are epistemologically probable rather than certain.
In contrast, the authoritarian nature of Wahhabi jurisprudence, imposing a
single binding interpretation on a probable Qurʾanic or hadith text, misrepre-
sents the historical character of the world of fiqh and thus is less authentic or
even inauthentic. In this respect, Qaradawi’s juristic thought is arguably au-
thentic in two dimensions. First, it is sensible and tolerant of the existence of
contradictory legal opinions. Second, it seeks to come to terms with Western
cultural, social and political ideas (e.g. the nation-state, codification, democ-
racy, gender equality). Qaradawi conducts this coming to terms with Western
ideas not by surrendering to their dominance with an uncritical acceptance
of them, but by consciously studying them against the background of Islamic
norms and embracing an adaptation of these elements that is both suitable to
these norms and beneficial to Islamic societies.18

16 Stanford Encyclopedia of Philosophy, s.v. “Authenticity.”

17 Abou El Fadl, Speaking, 6.
18 The writer Ridwan al-Sayyid calls this approach of Qaradawi “the method of giving
[Western norms] firm [Islamic] foundation” (nahj al-ta‌ʾṣīl). Put differently, Qaradawi
adopts from Western civilization only the institutions or conceptions that can be justified
textually or by inference by either the Qurʾan or the sunna (ʿadam al-iʿtirāf bi-ayy shayʾ…
illā idhā amkana iʿādatuhu naṣṣan aw istidlālan ilā aḥad al-aṣlayn); see Khatib, Qaradawi,
126, 129.

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172 Conclusion

Back to the claim about the less-than-high level of originality and intellec-
tual sophistication of Qaradawi’s writings, I would argue that he, like Rida, has
not intended to create a novel theory of Islamic law from the foundation up, as
expected from him and his peers by some observers.19 Rather, he synthesizes
various elements from classical juristic theories into a whole that is coherent
and workable in the modern period. He does not pretend to be innovative in
this realm and admits with candor that a lot of scholarly work is still required
to clarify ambiguous aspects of the classical legal theories. He demonstrates
his lack of pretension to originality by tying his own ideas to great authorities,
both classical and modern. If not in originality, Qaradawi’s strength lies in the
thematic breadth of his writing and in the wide scope of his juristic eclecti-
cism. He has demonstrated his ability to synthesize the elements he finds wor-
thy and appropriate into an organized and coherent whole, which at the same
time respects juristic tradition and adapts it to the realities of his time.
The scholars whom Qaradawi regards as his teachers are numerous. Thus,
for example, he borrows a number of elements from Ibn Taymiyya’s juristic
thought, including the restriction of the consensus to that of the Salaf; extend-
ed perception of maqāṣid al-sharīʿa; pragmatism (looking for practical solu-
tions by weighing the benefits and damages in relation to each case); objection
to exaggerated juristic caution; the presumption of permissibility in muʿāmalāt
and a moralistic legal position.20 He relies on the text of Ibn al-Qayyim as the
basis for his legal opinion on the marriage of converted women in the West and
on al-Ghazali’s and al-Shatibi’s works on maqāṣid al-sharīʿa. As for modern ju-
rists, he draws on Rida’s ideas on the renewal of ijtihād, based on maṣlaḥa, and
on the institutionalized collective consensus; on ʿAbduh, Rida and al-Khuli’s
methods of Qurʾan interpretation; on Sabiq’s work as a basis for his rejection
of strict adherence to a particular law-school; on Shaltut’s system for distin-
guishing between the legal and non-legal parts of the sunna; on Muhammad
al-Ghazali’s revisionist work on the use of the hadith for legal purposes in gen-
eral and the status of women in particular; on Khallaf’s work on using maqāṣid
al-sharīʿa in the context of the modern nation-state, and on Sanhuri’s ideas on
modern codification in general and the role of comparative law in this codifi-
cation in particular. When choosing to base his theory in a certain field on the
work of a particular jurist or on a synthesis of the works of a number of jurists,

19 Hallaq (“Can the shariʿa be restored?” 45) argues that “the traditional theory of uṣūl al-fiqh
is no longer sufficient to deal with the exigencies of modern life [because] this theory is
essentially literalist, paying heed to the lexical and technical meanings of the revealed
texts.”
20 See also Hoover, “Ibn Taymiyya,” 177.

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Conclusion 173

Qaradawi sometimes inserts his own additions to the original work, e.g. his
expansion of al-Ghazali’s list of necessary benefits, to adapt it to social and
political values he appreciates.
As a gifted synthesizer, the organizing idea of his juristic thought and the
concept subject to which he tries to systemize his doctrine is that of the middle
way, represented by his approach to maqāṣid al-sharīʿa and maṣlaḥa.21 This ap-
proach seeks to create a balance between a strict textual stance and one that,
on the contrary, views the text only as a metaphor and sacrifices it to obtain
social goals in the name of maqāṣid al-sharīʿa. For Qaradawi, the maqāṣidī sys-
tem of the middle way is the only one that brings together the revealed texts
and the realities of the world. It may be discerned that he thinks that the his-
torical compromise between theistic subjectivism and rationalistic objectiv-
ism, which is essential for maintaining the relevance of Islamic law in the life
of Muslims, is under attack from both literalist Salafis (whom he designates
as New Zahiris) and secular liberals (whom he designates as New Muʿtazilis).
By attaching to these two trends the names of medieval theological schools,
Qaradawi gives his struggle against them a super-temporal flavor and empha-
sizes that his approach continues the authentic Islam of the companions and
the great classical jurists and is the only one capable of renewing the historical
compromise between the literalist and rational-utilitarian approaches.22
Qaradawi’s life project is to reinstitute the moral authority of the ʿulama‌ʾ in
the face of the diversified challenges that have harmed it. His use of new media
and the establishment of international juristic bodies are part of his striving
for a “virtual caliphate,” which is an ideal pan-Islamic ecumenical organ rather
than a political sovereign body.23 Put differently, Qaradawi’s global Islamic
community is primarily an imagined political space of scholarship. This space
gives him and his associates the opportunity to develop an Islamic discourse
of ʿulama‌ʾ focusing on a non-governmental Islamic union that contrasts with
the ideology of the Islamic state of radical Islamists. In addition, this discourse
reaches beyond mere legal and religious issues and incorporates the debate
about Muslim cultural identity.24 In supporting the ʿulama‌ʾ’s project to define
“genuine Islam” as a guide for the masses in the framework of Islamic revival,
he has contributed to the redefinition and the expansion of the area of Islamic
knowledge in general and of the fiqh specifically. He has done this in ways that

21 Gräf, “Wasatiyya,” 213, 223.

22 Gillis, “Benefit,” 28–31.
23 Caeiro and al-Saify, “Qaradawi in Europe,” 118, following the understanding of Peter
Mandeville.
24 Gräf, “In search,” 47.

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174 Conclusion

are more effective than those of his predecessors, e.g. Modern Salafis such as
Rida. Qaradawi’s advantage over other Modern Salafis is that they had an am-
bivalent attitude towards the ʿulama‌ʾ, while he has been able to reemphasize
the centrality of the latter in the framework of “public Islam.” Qaradawi has
made the centrality of the ʿulama‌ʾ attractive to Islamic political activists who,
since the foundation of the Muslim Brothers in the late 1920s, have doubted
the ʿulama‌ʾ’s ability to serve as the leaders of modern Islamic societies and
criticized them for their political impotency.25
In this context, Qaradawi’s maqāṣidī approach aims to strengthen the au-
thority of the ʿulama‌ʾ against the background of the crisis of religious-legal
authority in the modern Islamic world. When reviewing the intellectual his-
tory of maqāṣid al-sharīʿa through the prism of the ʿulama‌ʾ’s authority, one may
notice that in historical settings in which the ʿulama‌ʾ feared the diminishing
of their authority by the government, competing religious trends or dramat-
ic political events, they expanded the possibility of basing legal opinions on
maqāṣidī justifications. When Qaradawi adopts extensive models of maqāṣid
al-sharīʿa and expands al-Ghazali’s list of necessary benefits, he allows the in-
ternational juristic organs that he leads a broad space of authority in which
Islamic law is able to respond to a wide gamut of social and political realities
(e.g. democracy as the realization of the principle of justice).26
Recently, a few legal historians have asserted that as a result of the nation-
state’s legal codification, which altered the nature of the law, and its policies
of demolishing the institutional framework of the ʿulama‌ʾ and replacing it by
state educational, legal and judicial institutions, the “traditional shariʿa can
surely be said to have gone without return.”27 To enable the ʿulama‌ʾ to develop
a modern version of Islamic law independently [my emphasis], a Sunni state
that aspires to be genuinely Islamic is advised to integrate the religious elite
in its administration, support religious institutions (especially madrasas), and
respect the legal rules determined by the ʿulama‌ʾ as state law.28 According to

25 Salvatore, “Qaradawi’s maslaha,” 242–3.

26 Gillis, “Benefit,” 23–5.
27 Hallaq, “Can the shariʿa be restored?” especially 22, 42. Abou El Fadel (Speaking, 16–17, 171)
generally concurs with Hallaq, although he distinguishes between Islamic law as a corpus
of rules, which he argues is very much alive, and Islamic law as a search for the divine
and a moral way of life, which he thinks is bankrupt, especially in the second half of the
20th century (ibid., 268). Abou El Fadl’s grim impression is mainly the result of his study
of legal opinions by Saudi ʿulama‌ʾ, who he claims replace old legal rules with new ones in
a tyrannical and arbitrary way, do not suggest any methodology for the further develop-
ment of ijtihād and do not make room for juristic debates.
28 Hallaq, ibid., 47. It seems that Hallaq refers to the Saudi model of the state, although he
does not say so explicitly.

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Conclusion 175

these observers, the chances that this scenario would materialize are extremely
low, because centralist states are unlikely to reduce their power in favor of the
ʿulama‌ʾ. However, even if this development does take place, Muslims still face
a major problem that seems to have no solution. They must ask themselves
to what extent they are committed to modernity and its products and what
they wish to adopt from it. For example, if they wish to be part of the global
economy, what about interest? Are they prepared to grant religious minorities
and women the rights that are required by international conventions? In ad-
dition, if the answers to these questions are in the affirmative, how are they to
interpret the revealed texts?29
Although the fiqh is not currently the law applied by the courts of many
Muslims states, it still serves as the standard and the source of authority for
many Muslims in their daily acts through the mediation of muftis, as well as
the source of legitimacy for society and state. This study demonstrates that
Qaradawi as a practical thinker and activist does not waste time on mourning
the decline of classical fiqh. Rather, he strives to articulate a version of Islamic
law that both pays respect to the heritage of Islamic jurisprudence and moral-
ity and is operable in the post-colonial settings in which most Muslims live.
Although one may assume that Qaradawi would gladly welcome the emer-
gence of “true” Sunni states that restore the ʿulama‌ʾ to their role as law makers,
as prescribed by Western scholars, he is realistic regarding the meager chance
that such a possibility might take place. His disappointment by the authoritar-
ian nature of the modern nation-state brought him, from the 1990s onwards, to
circumvent the authority of national religious and juristic organs by establish-
ing independent international juristic bodies, whose authority is supposed to
be trans-national. As for the extent of his commitment to modernity and its
products, he succeeds in striking a balance between two types of elements of
Islamic law and culture. The first type consists of symbols of Islamic identity
that serve as the moral and legal compass of Muslims and are therefore eternal
and must not be replaced or changed. The second type consists of elements
that do not form a central part of the Islamic ethos or core values and thus may
be inspired by Western cultural, social, political and economic perceptions and
values. The optional adoption of such elements must not emerge from a timid
feeling of cultural inferiority but from a position of self-confidence. A precon-
dition for the adoption of these borrowed elements is therefore that the jurists
reshape them in the light of Islamic morality and jurisprudential categories.

29 Hallaq, ibid., 48.

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Bibliography

Books and Articles by Qaradawi

Al-Qaraḍāwī, Yūsuf. “al-Fatwā bayna-l-māḍī wa-l-ḥāḍir.” al-Muslim al-muʿāṣir 5 (1976):

53–75; 6 (1976): 65–85.
Al-Qaraḍāwī, Yūsuf. “al-Jānib al-tashrīʿī fī al-sunna al-nabawiyya.” Majallat markaz
buḥūth al-sunna wa-l-sīra 3 (1988): 17–105.
Al-Qaraḍāwī, Yūsuf. al-Fatwā bayna-l-inḍibāṭ wa-l-tasayyub. Cairo: Dār al-ṣaḥwa, 1988.
Al-Qaraḍāwī, Yūsuf. al-Ijtihād al-muʿāṣir bayna-l-inḍibāṭ wa-l-infirāṭ. Cairo: Dār al-
tawzīʿ wa-l-nashr al-Islāmī, 1994.
Al-Qaraḍāwī, Yūsuf. fī fiqh al-awlawiyyāt: dirāsa jadīda fī ḍawʾ al-Qurʾān wa-l-sunna.
Cairo: Wahba, 1995.
Al-Qaraḍāwī, Yūsuf. al-Ijtihād fī al-sharīʿa al-Islāmiyya. Kuwait: Dār al-qalam, 1996.
Al-Qaraḍāwī, Yūsuf. Min fiqh al-dawla fī al-Islām. Cairo: Dar al-shurūq, 1997.
Al-Qaraḍāwī, Yūsuf. al-Fiqh al-Islāmī bayna-l-aṣāla wa-l-tajdīd. Cairo: Wahba, 1999.
Al-Qaraḍāwī, Yūsuf. al-Siyāsa al-sharʿiyya fī ḍawʾ al-nuṣūṣ al-sharʿiyya wa-maqāṣidihā.
Cairo: Wahba, 1998.
Al-Qaraḍāwī, Yūsuf. Kayfa nataʿāmal maʿa-l-qurʾān al-ʿaẓīm. 3rd ed. Cairo: Dār al-
shurūq, 2000.
Al-Qaraḍāwī, Yūsuf. Kayfa nataʿāmal maʿa-l-sunna al-nabawiyya. Cairo: Dar al-shurūq,
2000.
Al-Qaraḍāwī, Yūsuf. Min hudā al-Islām: fatāwī muʿāṣira. 4 vols. Beirut: al-Maktab al-
Islāmī, 2000–2003 (vols. 1–3); Cairo: Dār al-qalam, 2009 (vol. 4).
Al-Qaraḍāwī, Yūsuf. Dirāsa fī fiqh maqāṣid al-sharīʿa. 2nd ed. Cairo: Dār al-shurūq, 2007.
Al-Qaraḍāwī, Yūsuf. Fiqh al-Jihād. Dirāsa muqārina li-aḥkāmihi wa-falsafatihi fī ḍawʾ
al-Qurʾān wa-l-sunna. Cairo: Maktabat al-Wahba, 2009.

Fatwas by Qaradawi (all from Fatāwī muʿāṣira, see above)

“Nahjī fī al-iftāʾ.” 1: 8–36.

“Difāʿ ʿan ṣaḥīḥ al-Bukhārī.” 1: 90–105.
“Al-Mujtariʾūn ʿalā-l-ḥadīth al-nabawī.” 2: 26–35.
“Ḥawl aḥādīth kitāb al-ḥalāl wa-l-ḥarām.” 2: 104–16.
“Hal yajūz al-ʿamal bi-mā yukhālif al-madhāhib al-arbaʿa.” 2: 119–31.
“Ikhtilāf al-a‌ʾimma wa-ḥukm taqlīdihim.” 2: 132–40.
“Tajdīd uṣūl al-fiqh bayna-l-ithbāt wa-l-inkār.” 2: 152–60.
“Tarshīḥ al-marʾa li-l-majālis al-niyabiyya bayna-l-ijāza wa-l-manʿ.” 2: 409–20.

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178 Bibliography

“Munāqashat fatwā bi-taḥrīm al-ḥuqūq al-siyāsiyya ʿalā-l-marʾa.” 2: 421–8.

“Jihād al-dafʿ farḍ ʿayn wa-l-yahūd muʿtadūn wa-la yajnaḥū lil-silm.” 3: 485–91.
“Islām al-marʾa dūn zawjihā: hal yufarraq baynahumā.” 3: 623–42.
“Man huwa al-muʾahhal li-l-fatwā fī dīn Allāh.” 4: 93–100.
“Ḥaqīqat maqūlat Najm al-Dīn al-Ṭūfī wa-hal yuqaddim al-maṣlaḥa ʿalā-l-naṣṣ al-qaṭʿī.”
4: 116–18.
“Al-Thābit wa-l-mutaghayyir min aḥkām al-dīn.” 4: 182–90.
“Al-Maṣlaḥa al-mursala wa-shurūṭ al-ʿamal bihā.” Accessed December 31, 2015 http://
www.qaradawi.net/new/all-fatawa/1535-2012-01-11-062000.

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General Index

ʿAbd al-Raziq, ʿAli (d. 1966) 83, 156n22 Balqis (Queen of Sheba) 155
ʿAbd al-Salam, ʿIzz al-Din (d. 1262) 96 al-Banna, Hasan (d. 1949) 4, 7n27
ʿAbduh, Muhammad (d. 1905) 19–21, 22n85, al-Bayhaqi, Ahmad b. al-Husayn
23n87, 35, 39n63, 41n70, 42n75, 55, 59, (d. 1066) 78n47, 137
85–7, 172 al-Sunan al-kubra 137
on polygyny 42n75, 95, 108, 113–16 Brown, Daniel 13n55, 76, 77n41, 79nn48, 50,
Tafsir al-Manar 84, 113, 114 80n53, 85n73
Abou El Fadl, Khaled 35n48, 49n3, 65n1, 105, Brown, Jonathan A. C. 22–23
168, 171, 174n27 al-Buti, Ramadan (d. 2013) 92, 93n5,
abrogation, see naskh 94nn9,11, 96n14, 99n25, 103n41, 104n42,
Abu Bakra al-Thaqafi (d. 671) 153, 154nn16– 106
17, 155, 157–8, 161–2, 170
Abu Ghudda, ʿAbd al-Fattah (d. 1997) 78n44 Caeiro, Alexandre 8, 56n28, 162n33
Abu Hanifa (d. 767) 50n8, 61n45, 78n46, Camel, Battle of the 150, 152
81n59, 127, 135; see also law-schools chain of transmitters, see isnād
Abu Yusuf (d. 798) 61n45 common good, see maṣlaḥa
Abu Zahra, Muhammad (d. 1974) 55, 97n21 communal obligation, see farḍ kifāya
Abu Zayd, Nasr Hamid (d. 2010) 88 community, interpretive 169–70
al-Afghani, Jamal al-Din (d. 1897) 20 companions (saḥāba) 18, 29, 32, 37, 49,
Afghanistan 8 61–2, 70, 74–5, 81, 99, 103–4, 122, 125n1,
Agrama, Hussein Ali 15 130, 139, 141, 143, 149, 151–2, 154, 158, 166,
ahl al-hadith 1n2, 16, 18, 23n86, 24–25, 65, 173
76, 78, 100n32; see also Neo-Ahl consensus, see ijmāʿ
al-Hadith criticism, literary 121, 171
Ahl al-Qurʾan 19, 22n84, 69, 76, 77n38
ahl al-raʾy 16, 24–25 Dar al-Iftaʾ (Egypt) 54
ʿAʾisha (d. 678) 71n21, 119, 150, 152, 156 Darraz, Muhammad (d. 1958) 72n25, 97n21
al-Albani, Nasir al-Din (d. 1999) 23n86, ḍarūra (necessity) 25, 40–3, 46, 59, 73n26,
75n32, 77–8 89, 94, 96, 113, 122–3, 168
ʿAli b. Abi Talib (d. 661) 126, 136–7, 140, ḍarūriyyāt, see maqāṣid al-sharīʿa
141–2, 144, 150 al-Dhahabi, Muhammad Husayn
almsgiving (zakat) 59 (d. 1977) 73n26
analogy, see qiyās
Arkoun, Muhammad (d. 2010) 7n26, 88 Egypt 4, 18, 20, 37n55, 86, 108, 114–15, 145
al-Arnawut, Shuʿayb 78n44 Eickelman, Dale 14, 15
artificial insemination 53n18, 105 Eisenstadt, Shmuel N. 10
al-ʿAshmawi, Saʿid (d. 2013) 7n26, 22 eliminating pretexts, see sadd al-dharāʾiʿ
authority, religious-legal, see marjiʿiyya European Council for Fatwa and
Awqaf, Ministry of 52 Research 4n13, 84, 97n19, 125
al-Aʿzami, Habib al-Rahman (d. 1995) 78n44
al-Azhar 5, 54, 84, 114, 129, 145–66, 149, 155, farḍ kifāya (communal obligation) 83n65
165n1, 167 al-Fasi, ʿAlal (d. 1974) 91
fiqh (Islamic jurisprudence) 49, 55–7, 60–3,
Badr, Battle of 149 78, 82, 90, 103, 112, 115, 143, 166–8, 171,
al-Bahi, Muhammad (d. 1982) 5 173, 175

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codification of (taqnīn al-fiqh) 49–52, holy war, see jihad

54, 85, 164–5, 171–2 honor 3, 94n7, 98, 101, 121
corpus of 85, 89, 165, 170 al-Hudaybiyya, treaty of 71n20, 103, 130, 133
fiqh al-sunna 65 ḥudūd (sg. ḥadd, Qurʾanic
for Muslim minorities (fiqh al-aqalliyyāt punishments) 27n11, 28, 32n38, 67,
al-Muslima) 4, 167 73n26, 74n30, 90, 123
of intentions (fiqh al-maqāṣid) 98 human transactions, see muʿāmalāt
of priorities (fiqh al-awlawiyyāt) 66n3,
98n22, 102, 104 ʿibādāt (worship) 20, 40, 65, 67, 80, 99n26,
of reality (fiqh al-wāqiʿ) 56n28 101, 115, 166
renewal of 48 popular practices of 17
rules 65, 86 rules of 33, 58–9, 66n6, 90, 100
rules “known from religion by necessity”
(maʿlūm min-l-dīn bi-l-ḍarūra) 59, 122 Ibn ʿAbbas, ʿAbd Allah (d. 687) 133, 154–5,
sources of, see uṣūl al-fiqh 158
Free Officers (Egypt) 145 Ibn ʿAbd al-Barr (d. 1071) 134
Ibn ʿAbd al-Hakam, ʿAbd Allah
Gabriel, the angel 69 (d. 829) 63n52
Gandhi, Indira 155 Ibn ʿAbd al-Wahhab, Muhammad
gender 3, 121, 159n30, 162 (d. 1791) 17
equality 96, 108, 121, 145, 151, 171 Ibn Abi Shayba (d. 849) 137
equity (iqtirān) 162n33 Ibn al-ʿArabi (d. 1240) 72
al-Ghazali, Abu Hamid (d. 1111) 5, 26–30, Ibn ʿAshur, al-Tahir (d. 1973) 55, 80, 97n21,
34n45, 46, 92 130n13
al-Ghazali, Muhammad (d. 1996) 4, 5n16, Ibn Baz, ʿAbd al-ʿAziz (d. 1999) 56n28
22n85, 23n87, 35n48, 38, 66n4, 76n38, Ibn Daqiq al-ʿId (d. 1302) 78n47
77n41, 78nn44, 45, 85n73, 97–9, 106–7, Ibn Hajar al-ʿAsqalani (d. 1448) 78n47
154nn13, 17, 156n24, 160, 162n34, 167, Ibn Hanbal (d. 855) 81n59, 127; see also
172–4 law-schools
Gibb, Hamilton R. A. 11, 21n78 Ibn Hazm (d. 1064) 61n46, 63nn52–3, 55,
Gran, Peter 12 100n32, 127, 154; see also law-schools
Ibn Kathir, Ismaʿil (d. 1373) 69
hadith (Prophetic reports) 3, 16, 17, 22, 24, Ibn Qayyim al-Jawziyya (d. 1349) 5, 34n44,
33, 36n52, 41, 43n80, 48n3, 51, 72, 75n34, 37, 50n8, 73n25, 79n47, 80, 97n21, 100,
76, 79, 80–7, 113, 119, 129, 136, 147, 157, 125n1, 126–8, 130, 133–4, 153, 172
162n34, 164–5, 170–2 Ahkam ahl al-dhimma 126
compilations 135n17, 137–9, 143 Ibn Qudama (d. 1223) 154
corpus 18, 19, 77 Ibn Qutayba (d. 889) 80
exegetes 48 Ibn Taymiyya, Taqi al-Din (d. 1328) 1n2, 17,
experts 23, 77–8, 134, 153 34, 37, 46, 50n8, 55n23, 57, 61n47, 69, 70,
modern studies of 82 79n47, 82, 85n72, 94n9, 97n21, 99n27,
multiply-transmitted (mutawātir) 19 100, 105n45, 106, 126, 128, 133–40, 143–4,
solitary (aḥād) 22 164, 172
sound 44 Ibn ʿUmar, ʿAbd Allah (d. 692) 154–5, 158
ḥājiyyāt, see maqāṣid al-sharīʿa ijmāʿ (consensus) 3n8, 22, 24, 25n2, 28–29, 37,
hajj (pilgrimage) 102–3, 160 39, 45, 48, 58, 73n26, 82–6, 89, 94, 100,
Hallaq, Wael 22, 25n6, 29, 30n28, 33, 35, 37, 123, 130, 144, 153, 155, 158, 165–6
40–6, 85n71, 116, 172n19, 174n28 among law-schools 113, 122, 154

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institutional (modern) 20, 39, 83, 85–6, jurisprudence, Islamic, see fiqh
172 jurisprudence for Muslim minorities, see fiqh
mechanism of 20, 41n71 al-aqalliyyāt al-Muslima
of the community 75, 123
of the companions 18, 20, 36, 43n79, Kerr, Malcolm 21n78, 35, 38–40, 41n71
62n49, 70, 82, 85–6, 93, 152 Khallaf, ʿAbd al-Wahhab (d. 1956) 55, 92,
of the mujtahids of the age 53 93n5, 94nn8, 9, 11, 97n21, 99n25, 100n31,
of the Salaf 17, 172 106n49, 172
practical (ijmāʿ ʿamalī) 83, 86, 89, 95, 126, Khan, Sayyid Ahmad (d. 1898) 19, 22n85
143 Khawarij 155
scholarly (ijmāʿ fiqhī) 83, 122, 126 al-Khuli, al-Bahi (d. 1977) 4, 97n21, 172
scholarly and practical (ijmāʿ fiqhī
wa-ʿamalī) 122 law-schools, see madhāhib
universal 68 Layish, Aharon 35
ijtihād (derivation of legal rules based on uṣūl legal theory, see uṣūl al-fiqh
al-fiqh) 2, 18, 35n47, 49–51, 58, 59, 66, 70, leniency, see taysīr
78, 84, 95, 133, 141, 151, 156, 159
absolute (muṭlaq) 17, 55 madhāhib (sing. Madhhab; law-schools)
collective 53 Hanafi 25, 50, 62n49, 63n52, 89, 93, 105,
creative (inshāʾī) 7, 60, 63, 89, 90, 162, 166 114
modern 43, 48, 85–6, 92, 106, 113 Hanbali 17, 18, 24, 25, 81n59, 93, 105
on polygyny 109, 113, 121, 123 Maliki 25, 33, 50n8, 63n52, 93, 105
process of 16, 17, 77–8, 100–2, 143, 174n27 Shafiʿi 25, 50n8, 63n52, 93, 105
qualifications for 55 Shiʿi 49, 113
renewal of / reopening the gates of 20, Zahiri 6n25, 65
34, 48–50, 52–5, 64, 75, 89, 91, 96, 160, Mahmasani, Subhi (d. 1986) 91
172 Majlis al-Shaʿb (Egypt) 145n1
selective (intiqāʾī) 3, 7, 60, 89, 90, 144, Majmaʿ al-Buhuth al-Islamiyya
162, 165–6 (of al-Azhar) 54
utilitarian, neo-ijtihād 35n48 Majmaʿ al-Fiqh al-Islami 54
intellectual(s), Western-oriented 6, 7n26, Malik b. Anas (d. 795) 62n48, 81n59, 127
65, 84, 107 al-Muwattaʾ 62n48
intentions of the shariʿa, see maqāṣid maʿlūm min-l-dīn bi-l-ḍarūra, see fiqh, rules
al-sharīʿa al-Manar 34n45, 36, 84
International Union of Muslim maqāṣid al-sharīʿa (intentions of Islamic
Scholars 97n19 law) 3, 7, 24–28, 33, 38, 40n67, 43, 48, 55,
iqtirān, see gender, equity 60, 79, 94n7, 97–107, 125, 153, 166, 172–4
Islamic awakening 5, 98; see also revivalism and maṣlaḥa 100
Islamic Fiqh Academy 84 Caliph ʿUmar’s practice of 93n6
isnād (chain of transmitters) 23, 77, 78n45, ḍarūriyyāt (necessary benefits) 27, 30,
134, 138 32n37, 90, 98–100, 101n36, 103–4, 106–7
istiḥsān (in Hanafi law: juristic ḥājiyyāt (needed benefits) 27, 30, 99,
preference) 25, 26, 58 103–4
istiṣlāḥ (in Maliki law: consideration of theory of 89, 90, 96, 99
public welfare in the application of taḥsīniyyāt (improvement benefits) 27,
analogy) 25, 58 30, 99, 103
traditional 99n26
jihad (holy war) 8, 62, 66n3, 67, 83n65, 102 al-Maraghi, Mustafa (d. 1945) 5

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General Index 189

marjiʿiyya (religious-legal authority) 6, 174 Opwis, Felicitas 2n4, 24, 26, 29, 32–3, 46, 91,
maṣlaḥa (public interest) 2, 9n33, 27–36, 39, 106
40n67, 42–6, 53, 55n25, 60, 73n25, Oslo Accords 56
103–4, 106–7, 136, 151, 153, 165–6, 170, Ottoman Family Rights Law 52
172–3 Ottoman
and analogy 25 caliphate 156
and leniency 141 codification 50
and polygyny 109, 114, 122, 124 Tanzimat 164
concept of 24, 41
in juristic thought 3, 38 particularization, see takhṣīṣ
textually unattested (mursala) 25, 26, People of the Book 75n34, 130
92–4, 105–6, 160 Pilgrimage, see hajj
role of 89–100 Pillars of Islam 67, 102
uses of 8, 20, 22; see also maqāṣid Piscatori, James 14, 15
al-sharīʿa polygyny 3, 42, 68, 95, 96n14, 108, 111, 114, 116,
al-Matʿani, ʿAbd al-ʿAzim (d. 2008) 129, 130n, 120, 124, 166
132–4, 136–142, 144 practice of 113
al-Mawsuʿa al-Fiqhiyya 52 prohibition of 74, 118, 120, 123
Mecca 30, 74n27, 102, 130–4, 138 support of 8, 83, 89, 112
Meir, Golda 155 verses 60, 73, 109–10, 115, 119, 122–3
Modernism, Islamic 11, 12, 40 prohibitions, moral 58, 67, 85
monogamy 108, 115, 120 Prophet 1n2, 2, 18, 32, 36, 55n25, 61, 69–71,
Motzki, Herald 112 73n26, 74, 77–81, 103, 113–14, 120, 122,
muʿāmalāt (human transactions) 20, 28, 33, 134, 138, 143, 153–7, 160
43, 59, 85, 100, 115, 146, 161, 166 authority 76
Mubarak, ʿAli (d. 1893) 34n45 battles 116, 118
Mubarak, Husni 145n1 daughter (Zaynab) 133, 135, 142, 144
al-Mundhiri, ʿAbd al-ʿAzim (d. 1258) 78n45 law 76
Musa, Ebrahim 51n12 orders 58
Muslim Brothers 4, 174 reports 19, 22, 28, 43n79, 51, 68, 104, 137,
Muslim World League 84 158
Muʿtazila 24, 65; see also New Muʿtazila sunna 90, 102, 133, 161–2
wives 71n21, 119, 147–52, 161
Nafi, Basheer M. 8 Prophetic tradition 3, 17; see also hadith
naskh (abrogation) 29, 63n55, 69n14, 74, 81,
110, 121, 138, 142 al-Qarafi, Shihab al-Din (d. 1285) 28n23, 46,
naṣṣ (pl. nuṣūṣ; textual indicators) 7, 18, 21, 90, 93, 99, 103n41, 107
26–28, 43n79, 85, 97n19, 100, 106, 161, al-Qasimi, Jamal al-Din (d. 1914) 23n86, 35
169–70 qiyās (analogy) 3, 16, 18, 20, 24–26, 27n15,
undisputed, certain (qaṭʿī) 27, 58, 68, 35n48, 36–8, 42n74, 44n83, 46, 49, 58,
73n26, 83 68, 82, 85, 89, 92, 95, 98, 106, 117–19, 166
probable (ẓannī) 28, 30, 33, 43n80, 54, 59, Qurʾan exegesis 19, 68, 74, 86, 87
68, 72, 89, 94, 96, 99, 103, 121, 165, 171 “Qurʾan Only” movement 22
necessity, see ḍarūra Qurʾanic punishments, see ḥudūd
Neo-Ahl al-Hadith 17, 19, 20, 77–8, 84, 165; Qutb, Sayyid (d. 1966) 23n87, 48, 66n5,
see also ahl al-hadith 86n75, 119–23, 130n13
New Literalists 65; see also Zahiris, new
New Muʿtazila 7n26

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190 General Index

Rabitat al-ʿAlam al-Islami 55 Saudi Arabia 23, 55–6, 85n71, 105, 158–61,
al-Raghib al-Isfahani (d. 1108) 72 174n28
Rahman, Fazlur (d. 1988) 22, 69, 87n79, 116 Schulze, Reinhard 12
al-Razi, Fakhr al-Din (d. 1210) 46, 92, 103n41, secularist, movement 5
106–7 intellectual 6, 37, 84, 147, 150
regression (taʾakhkhur) 5 tendencies 35
religious utilitarianism 116 Westernized 97n19
revival / revivalism Al-Shafiʿi, Muhammad b. Idris (d. 802) 24,
Arab 34 63n52, 81n59, 127
cultural (nahḍa) 5 Shahrur, Muhammad 7n26, 22, 71n19, 75–6,
Islamic 2, 11n46, 18, 76n38, 79nn48, 50, 88, 118–19, 120, 123
87, 173 Shakir, Ahmad (d. 1958) 77
revivalist movement 17 Shaltut, Mahmud (d. 1963) 5
Rida, Muhammad Rashid (d. 1935) 1, 5, 6, 8, al-Shatibi, Ibrahim b. Musa (d. 1388) 5, 26,
20, 22n85, 36–9, 55, 59, 60n39, 61n44, 29–33, 35n48, 38, 40, 43, 45–6, 58, 91,
62nn49–50, 73n25, 75n34, 79n50, 80–7, 97, 99n30, 100, 103n41, 106–7, 166, 172
91, 93, 97n21, 100n30, 101n37, 106, 108, al-Shawkani, Muhammad (d. 1834) 18,
166 38n59, 58, 61n46, 77, 130n13
juristic thought 2–4, 21, 24, 34–5, 40–7, al-Shaybani, Muhammad (d. 802) 50n8,
172, 174 61n45
on polygyny 115–16, 121, 123–4; see also al-Shifaʾ bt. ʿAbdallah al-ʿAdawiyya
Tafsir al-Manar (d. 640) 155
Yusr al-Islam 42 shūra (consultative council) 39, 62, 67,
Righteous Caliphs 76; see also ʿAli b. Abi 93n6, 102, 156
Talib, ʿUmar b. al-Khattab, ʿUthman b. siyāsa sharʿiyya (politics corresponding to
ʿAffan Islamic law) 81, 92, 115, 122
Solomon, King 155
Sabiq, Sayyid (d. 2000) 5, 65, 97n21, 172 specification, see takhṣīṣ
Saʿd b. Abi Waqqaṣ (d. 674) 81n60 Stowasser, Barbara 8, 146, 162
sadd al-dharāʾiʿ (eliminating pretexts) 52, suffrage (women) 145, 150
105, 142, 147, 159–60, 162
saḥāba, see companions al-Tabari, Muhammad b. Jarir (d. 923) 68,
al-Saify, Mahmoud 8, 56n28, 162n33 110–11
Salafi 35n48, 37, 48, 84, 158, 161, 165, 167 Tafsir al-Manar, see ʿAbduh, Muhammad
literalist 173 Taha, Mahmud Muhammad (d. 1985) 91
reformist 120 al-Tahawi, Abu Jaʿfar (d. 933) 78n47, 137
traditional 22, 23 taḥsīniyyāt, see under maqāṣid al-sharīʿa
Wahhabi 6 takhṣīṣ (specification) 28, 32
Salafism, modern 1, 20, 22, 23n87, 85, 143, talfīq (patching) 60
166, 174 taqlīd (adherence to a particular law-
Salvatore, Armando 8, 13 school) 1, 16n63, 18, 22, 25, 34–5, 53,
al-Sanʿani, ʿAbd al-Razzaq (d. 827) 78n47, 60n39, 61, 65n2, 85, 91, 164, 172
137 taysīr (leniency) 7, 36–7, 67, 99n26, 121, 141,
Musannaf of 137 147, 161, 167, 170
al-Sanʿani, Muhammad b. Ismaʿil textual indicator, see naṣṣ
(d. 1768) 23n86 Thatcher, Margaret 155
al-Sanhuri, ʿAbd al-Razzaq (d. 1971) theology, Ashʿarite 24
49nn6–7, 50, 51n10, 172 Traditionalists, Late Sunni 22, 23, 76

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General Index 191

Trench, Battle of the 148 ijtihād in 58, 78

al-Tufi, Najm al-Din (d. 1316) 20n74, 26, maṣlaḥa and 89, 106
28–30, 33, 40, 45–6, 90, 94, 107 pre-modern 24, 37n54, 41, 45–6
concept of maṣlaḥa 36, 45, 91 reformist 2, 21, 35, 40, 46–7
substantial-rationalist model 36n50
al-Turabi, Hasan 125 Von Grunebaum, Gustave E. 11

Uhud, Battle of 112, 149 Wadud, Amina 22n84, 117–18, 120, 123, 152
ʿulamaʾ (religious scholars) 6, 8, 20, 21, 36–9, Wali Allah, Shah (d. 1762) 18, 23n86, 69,
52–8, 61n46, 91, 93, 109, 124, 163–8, 78n45, 80, 97n21
173–5 Wasatiyya / Wasatism / Central Trend 6, 7,
al-Azhar 165 65, 97n19
classical 5 Watt, Montgomery W. 112
conservative 12, 84, 164 al-Wazir, Muhammad b. Ibrahim
contemporary 51, 160, 167 (d. 1437) 97n21
corrupt 35 Weber, Max 26
modern 83, 92, 106, 108 Worship, seeʿibādāt
orthodox 76, 108
reformist 5, 18 Yathrib 149
Salafi 158 Yusr al-Islam, see Rida
Wahhabi 158–9, 161, 171
ʿUmar b. al-Khattab (d. 644) 93, 104, 123n24, Zahiri, scholars 61n46, 154
126, 135–6, 139, 140–4, 155–7 New Zahiris 173; see also law- schools,
ʿUthman b. ʿAffan (d. 656) 62n50, 156 Zahiri
uṣūl al-fiqh (sources of Islamic Zaman, Muhammad Qasim 6n23, 8, 9,
jurisprudence) 2, 3, 16, 17, 24, 28, 30n28, 34n46, 35n47, 39n64, 83, 92, 107n50,
33, 38, 42n73, 45, 55, 58, 64, 90, 164, 124, 167
172n19

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