Channel: Jonathan Brown
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Thanks very much to me for inviting me months and months ago.
I'm actually a recent addition to the product, which is great, because I'm
I think is a good follow up to what Dr. odo was talking about. And that's that, well, I'll just start actually with something entertaining that happened to me a few years ago when I was in Egypt, where we'll be going anytime soon. And I was walking along the sidewalk, and I found the sidewalk markets. And there was a great book that it said title was,
of course, I really bought the book, nice collection of books on its topic in my office, and then I found other books and nearby it says, you know, Rajan was wrong for this. So there was a ribbon to that book, the main arguments in the meantime, marriages halau book was that the companion pass had, depending on who you believe, either for a time or for his entire life, he believed that marriage was. So you actually had this very esteemed Companion of the prophet who held it without marriage was acceptable in Islam. Obviously, this is not popular amongst elders Sunday school,
among all the Sunday school.
So that's one example. I
mentioned another example as well, also involving off bass. And this is the question of the three fold divorce. So if a man says to his wife, anti
abortion, divorce or divorce, all the fourth Sunday schools of law say that that woman is immediately and you irrevocably divorced. at a given time, he famously disagreed with this. And his argument for why this should only count for one of the three divorces and should not be irrevocable. Why is that? First of all, he believed that this was the spirit of the kranti believe this was the way that actually the Prophet had
prescribed the practice of divorce, which is true, according to Socrates. And finally, he said, this is the best. So here you have two different opinions, one of which people in Egypt would find despicable or,
namely, the use of marriage. The other one that is actually became the basis for a lot of modern Divorce Law in Muslim countries. So the Ottoman Family Law 1917, and many other law codes after that, partially based on that actually taking the 10 years ruling for the triple divorce, making a three, three declarations of divorce in one session only equal to one declaration. I think
that's actually a very good rule to take. And it actually does promote the welfare of Muslims. So what you have here is a great example of a tension which is that the diversity of the Islamic legal heritage, especially in its early period, is both a tremendous resource, it's a blessing in that it gives Muslims a giant toolkit or the analogy I like to use for my students, a Mr. Potato Head bucket of parts, a giant bucket of parts you can draw from, to solve the problems of Muslim and to promote Muslims best interest legitimately.
But of course, as you saw with the case of bass and without marriage, it's also a risk. The early the diversity in Islamic negotiation is a liability is a risk it's a temptation, because justice one can promote the advancement or protection of Muslim interests using a man can also allow or excuse illegitimate desires, your your desires are a different agenda is exploitation using this and that that's what's usually referred to as the tempo of requests or following the different licenses or dispensation. And a good example this comes from the
scholars in Basra he moved to Sinai and not not live in Russia died 153 Henry who said that if you take a pan of the people of Mecca in Mouton marriage and sauce, which is kind of exchanging monies, and you take opinion people in Medina on anal sex and listen to music, you take the people opinion of the people of Kufa, on intoxication, you'll be shocked as a lawyer be the worst person of all human beings are the worst, guys.
So this was the big fear is that people are Muslims are going to cobble together a Sharia out of all the different odd licenses or anomalous weird opinions that they found in the legal heritage end up with a really, really terrible version of Islam, which no one would accept, but which is actually technically legitimate in the sense that it comes out of this historical heritage.
The way that Muslim scholars dealt with this, this tension, how to avoid the take advantage of its good sides without falling into it into Islam into Chinese liabilities is through several methods. One is to talk about intentions. Second is to try and actually set up some procedural restrictions. The third one is to set a set of
qualifications. And the fourth one, and this is not really something they thought of, I think, but it's something that we have to look at is inevitable ineluctable is that this is also always going to be subject to political considerations, it's always going to be subject to political considerations, by which I mean
people's interests, the interests of the powerful the interests of regnant cultural idea, the interests of what people are drawn to in their daily lives. So you can never miss these also, this also has a huge influence over what's the legitimate choice.
And what's an illegitimate choice in terms of drawing on this legal heritage.
Muslim scholars had to look at this from two perspectives. The first was in their capacity as judges.
For my students who've had to sit to me talking about this before I apologize, this primarily we're going to go over, they're
going to remember that Muslim scholars aren't just intellectuals, they're not just people who talk about what ethical what feels good for you, they also serve as judges. And so they had to, they really had to make sure that they were establishing a legal order that was workable, at least on a local level, and it was consistent and
unified at a theoretical global level.
By the by the 1200s, what had basically emerged, whether you're talking about North Africa, which is obviously, Maliki or Central Asia, or Iran, or the Arabian Peninsula, is that if you had an area with one dominant School of Law, like Maliki North Africa, judges would, either by decree of the ruler or pretty much, most of the time, by their own kind of peer pressure, they would be expected to provide them with what's called the muscular of the myths of the mains, the mains opinion or the primary opinion of the School of Law. If you were a senior judge, you would have more lack more latitude, and taking from other rulings in that one method.
If you were in an area where
there were sure I should specify something else, but there is also time, especially in the Hanafi School of Law, we see this a lot in the Ottoman Empire in the Indian mobile Empire, which was hopefully writes about that, that the Sultan's or the rulers would also specify a specific ruling, that was not the main ruling of the method that should be taken.
So we have lots of examples of this in the Ottoman Empire like
that, instead of the main hanafy ruling, which prohibits making endowments with cash, or you know, gold and silver, you normally wouldn't be allowed to that in the Hanafi. School, you could only in any school, actually, you'd have to make an endowment with, you know, land or shop or something like that, where the Ottoman Sultan says that no, we're gonna take the ruling of so far one of his early disciples, which says that you, in fact, can use, make cash walks. And this was very important, because guess what, by that point, in the 1500s, the Ottoman economy, especially its religious economy, measure says, hospitals, mosques, they were all running off cash walks, that's a very good
example of how political reality determines what's an acceptable choice. And a lot of scholars, especially non government, associated scholars in the Ottoman Empire in the 1600s, when this debate happened, people like Ronnie V, who wrote the chuck
Turrican, mohammedia, he really had a lot of severe arcs of your arguments with the establishment, and the Ottoman Empire saying you guys are really betraying the legacy of hanafy School of Law and doing what's inappropriate by allowing this, but the political power of the salon carried the day.
So that that's an area we have one dominant School of Law. If you had it in a place like Egypt, where you have multiple schools of law coexistence, the Maliki school and the Hanafi school in the Shafi is cool. I think what you ended up with by the 1200 1300 is kind of a systematic 10 fee, or a systematic picking and choosing. So it wasn't that people just went to the Hanafi court when they wanted something shopee court, and it was just total chaos. It was understood exactly what court you were supposed to go to for certain issues. So if you wanted to tear down a mosque that was endowed by a walk, you can really tear down mosques because they're eternal. You would go to the assembly
court because the handlers actually allowed the government to basically exercise eminent domain and tear down a mosque or a walk, if it's been determined to be, you know, decrepit, which is a very subjective decision. So if you feel it was understood precisely which course you would go to
For which issues, there wasn't just legal chaos.
But the other dimension, very important dimension of scholars.
duties was not as judges but as mathies. as advisors and as articulators of Islamic ethics, invited by Islamic ethics here, I need things that aren't going to see the inside of a courtroom. Everything I just talked about was only if you actually went to a court for all sorts of things like fasting and prayer, and your hugs, and all these other things, you would never actually be in a court. So when it came to scholars acting as movies, that they also had different approaches to solving this problem, or dealing with this tension between
Islamic legal diversity as a resource legitimate resource versus as a temptation into sin.
By the 1200s, what you saw is basically three and I think, really, it's emerged in the 1200s. Three different approaches to this, the first one we can think of is a very permissive approach, which basically said, you can do federal shopping, you as you know, and Muslim, can go and just ask any number of things you want, what their ruling is, and you just take the one you like, and it doesn't matter if you take the easiest one, because you're lazy, and you want to be able to drink or something like that.
This is fine. Why because deeds are determined by intentions, if you have bad intentions, God's not gonna reward you, or God's gonna punish you, even if it's allowed in this life. Second, and this is the biggest argument that the companions did this.
That doesn't mean the companions went around doing awful Photoshop, what it means is that they didn't have established methods, they would ask each other about different rulings. And then they would take what they thought was right. So you can't require somebody to follow a certain method, because this was not what the companions have done. And you can see in this very, I'll use the word selfie, because it's useful. It's not that the people didn't actually call themselves selfies. But this idea of using the companions and their conduct really as the defining model for what you can demand and Muslims and expect, so the fact that the companions didn't restrict themselves to any one
school of law means that we cannot restrict people today, people have to be free to choose. So that's going to be very permissive approach. This was you finally see, like, Is it even at the salon de 1262?
mom and dad died in 1394.
The second approach is sort of really emerging. Amongst the Shafi scholars of the Middle East, it was first articulated before like, even to think that he died 1302 and tattooed in a suitcase. And this was that they set up
a body of procedures, for example, you
pick and choose between mishaps such that the resulting action was unacceptable to the school you were coming from and the school you're going to what does that mean? Let's say I want to pray. So I, I do my ablutions. And I only white part of my head, which is okay in the Shafi school and Hanafi school and hanbali school, not okay in the Maliki school, and then I go, I pet a dog, a dog, and I go and pray. And I say, oh, but the Maliki's they say dogs are not filthy, so it's okay. Well, the Sharpies say that the dog is filthy. Now you don't accept me wiping half of my head. So I actually have actually put together a Mr. Potato ad that's internally inconsistent.
And later on, this list of restrictions gets simpler. What it says is, you can't have a
resulting ruling or set of connected rulings that is rich, objectionable or unacceptable to all Muslims. So you come up with something where you say, I'm going to take the Maliki ruling, which a minority Maliki Williams says, I don't want to give my wife and my heart and I'm going to take the happy ruling which says I don't need my to ask her permission of the well he and me to take this other ruling. So they don't need to have witnesses. I basically end up with a marriage with no more no more no witnesses and no permission that will leave with no one is going to accept
except the young people probably
third, some other restrictions that they put in there was that
ideally, the person doing this, whether it's the lay person who's going and seeking out opinions of movies, or whether it's the movies themselves giving the ruler ruling, they should do it because they believe this is the strongest opinion this enjoys the best evidence
or that there is some need involved. So even if it's not the best, strongest opinion, you're
by your judgment as a scholar, or by your decision as a layperson, there's some need legitimate need. So it's interesting here we have to distinguish between need and necessity. And I haven't seen a lot of people talk about this, although I'm sure I'm missing a lot of demons see what he talks about in a stamina volume. That necessity they'll do though, that means if you don't do this, you're gonna die. We're really close to it, right? So if you don't, if you are dying of starvation, you can eat a giant pig carcass or at the as I always like to make the joke, you know, Joe's ribs and bibs shack in the desert. If you're dying of starvation, you can go and eat the full pork sandwich.
If you're not dying of starvation, but you're really hungry, and it's causing tremendous difficulty and problems for you. That's hajer that's a need. So that would mean for example, you could get permission to break your Ramadan fast. If you're ill. If you're having your something's wrong with your body, you're just everyday you're miserable because of Ramadan fasting, you might not have to fast Ramadan, according to the Mufti. Or here, you might have things like
he would never allow what is prohibited. No School of Law says that it's okay to eat pork.
So only 100 gururaj. Can you eat pork, but there's lots of disagreement about, let's say, eating
out alligator disagreement about eating alligators. So if you're living in Florida, let's say place we can be as really causing a lot of problems that you can't eat alligator sushi at the
cafeteria at your work, then you could take the ruling of the guy who allows you to eat alligator. So this is it's not allowing was prohibited by agreement, but it's allowing you to pick and choose between methods.
The so that's the kind of what becomes the middles approach to this issue. And it's very common amongst Shafi scholars in the especially the Middle East. The third school is the strictest this I've found to be
prevalent mostly amongst canopies, whether an Ottoman Empire or in South Asia, which is that really you should follow one rule of law.
And if you don't know what a school of law is, because you're really uneducated, which is fine, then you just follow one authority, your village, Mufti or somebody, you follow that one person, whatever they do, whatever they tell you, you, you don't go picking and choosing this is you find this amongst later Ottoman scholars, you also find this amongst the autobahn school in the dome system in the whole world, the dome network. But it's important to note that this is not fixed. This also has an exception, as an exception in the sense that from the side of the scholar, the scholar is still able to choose between maps in situations of Garuda as Rashida and I can go He said, I guess he
pretty much is not here, he could talk about it. But
he or she can go here, one of the early derawan scholars said that he will take a position from another school of law if it isn't necessity. other day when scholars that if there's a there's a strong need or a moment, Bella something that is causing difficulty for the Muslim community, but they will do that in as soon as a scholar issuing effectual. It's not up to the lay person to pick and choose between things based on what they feel their needs. So it's up to the scholar and his or her ability as someone drawing on the legal heritage to come up with a ruling to give to those laypeople.
So that's the most kind of the strictest approach.
I just wanted to talk about too, I think I have time to have maybe just one case study here, for example, and one has to do with
marriage, our marriage, we'll keep talking about marriage, which is marriage age. And what is the Can you can Muslim government? Or can Muslim scholars legitimately in Islam say that, that we can say that
it is illegal for a man or woman to marry let's say under the age of 16? Why is that a problem?
Anybody have a guess?
Why is it a problem for Muslim to say that you cannot marry somebody under the age of 16?
Because the Prophet Mary, I should choose nine or 10 years old? Yeah, arguably, anyway, then, all schools of law say that she was nine years old, therefore, you're accepted. You can't go and say what the Prophet did was wrong. That's wrong. So how do you do this?
What when you
This was first this restriction was, was first introduced or a restriction on marriage. He was first introduced in the Ottoman family law in 1917. And then was followed in places like Egypt and legal reforms in 1923. And in basically every other Middle Eastern country, much it's not true most of them
How does this art argue? How could you argue this islamically one,
you wouldn't say this is a statement about was held on her arm, you're saying this is simply the ruler acting in his capacity as an executive and placing an administrative restriction on judges. So if you live in a village and you've gotten married, your 13 year old daughter gets married to your 13 year old neighbor, son, and you do up
a new car that's legal in God's eyes, but you can't go to court and registered. Because the Sultan is the ruler said that the court can only register marriage people 16 and over that's one argument which is using the executive power of the ruler. The second one is to reach back into that great grab bag of Islamic legal heritage and find where's the exact part that I need? Ah, the proven scholar of the century in sugar Ahmad was a contemporary and he never had a method but was very respected scholar in his day in sugar ma supposedly
said that you cannot have a marriage contract for anyone under age. I also want to clarify, no, no school of law that I know of this issue in depth says you can have sex with someone who's underage and you cannot have sex with someone who is not pubescent.
But of course, that's really hard to legislate. You know, you could legislate, it's hard to know when people stop puberty. The the issue we're talking about here isn't sex, it's the marriage contract. In general, the schools of lon Islam say a marriage contract can be done with someone who's on who's prepubescent.
You just can't actually there can't be consummation of the marriage. So, what it says is there cannot be any contract at all, before the person reaches
the loop before they reach basically physical maturity.
So, you go back and you reach and you find the position and now
why is this problematic?
what is the correct motive? What is what is motivating the scholars involved in this discussion? Are the scholars involved in this discussion, truly concerned with advancing Muslim developed welfare, the Muslim community? Are they truly
doing what they think God wants them? Or are they advancing a position that is popular with
that, at that time, British supervision of Egyptian public life
and its influence on Egyptian days.
There was lots of discussion about this in Egypt in the 1920s. there continues to be discussion about it until today and lots of you don't have to wait very long, maybe just two or three weeks like that. Before there'll be something on your Facebook page where some Mufti says that it's okay married to someone get outraged by that. So there's this always a continuous
training of outrage over this issue until today.
Or are those people other scholars are arguing from an age restriction actually, coming up with a legitimate opinion, which, which really does represent
the best interests of the Muslim community and what God wants from Muslims in this day and age? And that was a position that was taken by lots of very conservative Muslim scholars in Egypt, people like us are after Halima mode, and even Ali Tantawi, that 1999, he was a Syrian scholar worked as a judge in Damascus, courts before the courts are totally second rise in the 1950s. And he later moved to Saudi Arabia, as more famous for his TV shows. But he also
he objected to morally saying that it was wrong to marry someone who was under 16. But he had no problem as a functionary of the state working in a Sharia court, applying the rulers restriction, that you not
register a marriage with someone who isn't except for someone who's under 16.
The second example, I'll give very briefly, also actually involves even Sugarman. They've been driven by this scholar who no one really hears about, but oddly is at the center of two big debates in the modern, Islamic modern Islamic thought. One is marriage age restriction. The second is the crucial trend.
action that allows Muslims to have Islamic mortgages, which is that they unroll behalf.
Right. So what that means is, I want to buy a house. So I go to the bank and I say bank, buy this house for me, I will buy it, I promise I will buy from you over a period of time with an inflated price. That's how you can have an Islamic mortgage. However, the problem is that none of the School of Law allow you to have a sale with conditions. So by saying buy this from me, and I promise I'll buy from you, you're not allowed to do that, in the sense that that promise is not legally enforceable, it can be morally enforceable, it's not legally enforceable, except for whom had been sugar mama would have been sugar law said you can do this. So in 1979, when there's the first
international financial conference for Islamic, what is it what time it is a woman must defend Islam and divine act 79. They go back and say, even children was opinion is the one we're going to take. And this allows this. And this has become very important in Islamic finance. But of course, lots of people objected to this. One of the great Palestinian, virtually Palestinian leader, resident Kuwait scholar cinnamon handle Ashkar wrote in an objection to this, that this is absolute
perversion of the Islamic legal outlook on this issue, that, in fact, no one really knows what even showed him his opinion wise.
And this is an important issue as well, which is that
the problem with taking, like companion opinions, and people who didn't have met heads is that we don't really know what their rulings work. We don't really know what even our best thought of them without marriage, there's just reports. We don't really know what you may have asked, or what even shoot them I thought about sales and contracts. And we just have a few reports. We don't have a comprehensive school they've been children. It's been looked at generation after generation after generation and checked and rechecked and refined.
So that's why all all these different approaches I talked about earlier, to mixing and matching between schools of law, it's between established schools of law.
They're all very, very skeptical and very suspicious of going back before the School of Law to companions and people like that. You cannot go back and take their rulings because you don't know what their rulings were. You just have these hints these echoes in recorded in history. So the Lashkar criticizes this 1979 somni conference ruling on finances as you This is clearly designed to
allow Muslims to participate in a modern financial system which is based on Riba which is unacceptable in Islam.
Now, where the truth in that lies, all of them, but I think you'll see with this examples of marriage age, with divorce with Muay Thai marriage with Islamic financing.
on these issues, it's very hard to tell isn't the best argument that carries the day, for instance, what's politically popular, but politically popular? I don't just mean politically within one country. I mean, politically amongst Muslims, who are
who cannot avoid having near discussions about their religion within the greater hegemonic context of majority of globalized Western values. It's very hard to know what really is determining
what God wants on any one issue. Thanks very much.