Review of Gomaa’s Responding from the Tradition

Review of Responding from the Tradition: One Hundred Contemporary Fatwas by the Grand Mufti of Egypt, Sheikh Ali Gomaa (Louisville, KY: Fons Vitae, 2011)

Rarely is the English language graced with a major contemporary scholar engaging a range of current concerns. Hence this work will be eagerly received in many quarters of the English-speaking world. Their anticipation is justifiable, as the work will tackle a variety of topics, including theology, law, customs and spirituality. In the end, it should be viewed simply as an introductory volume, and we can hope for a future volume on more pressing life challenges facing Muslims in the English-speaking world.

Regrettably, Responding from the Tradition gives no background as to how and where the hundred questions answered in the volume were asked. One does not know if they have simply been selected from a wider pool, and if so, upon what criteria they were chosen; or whether Shaykh Gomaa himself decided upon these specific answers for publication in one volume. Such a detail could have been very helpful, especially if we were told that Shaykh Gomaa himself selected these questions, because it would have informed us about what he considered priorities for the English-speaking audience.

From the perspective of theology, the work is Sunni-orthodox, despite being published by a publishing house known for propagating perennial philosophy. The answer to question 1 affirms the orthodox message of Islam being “the final religion sent from God to humanity…and intended for people of every race and geographic location.” Furthermore, the answer to question 2 adds: “God willed Islam to be the seal of all religions in the realm of law, and for it to be the only religion in the realm of belief.”

The general Sunnism of the above is made more specific in answer 33 where Gomaa states that “the orthodox school of Sunni Islam” includes “both the Ash’ari and Maturidi schools.” Defensively, he adds,

“those who criticize these schools are ignorant of their tenets of belief in God. Misunderstandings mostly have to do with the ‘possessive attributes of God’ or what are technically referred to as ‘reported attributes.’”

Moreover, Gomaa distinguishes between early and later Ash’ari theologians. He identifies early Ash’aris as accepting the “possessive phrases and reported attributes used by the Quran in reference to God as they are, without believing in the literal meanings of their linguistic expression.” In contrast, he notes, “the later Ash’ari theologians took the approach of interpretation because they thought that affirming attributes in an ambiguous manner led some to anthropomorphic beliefs and all that they necessitate.” In a final comment, Gomaa effectively concludes the controversy surrounding the attributes of God by approvingly quoting a non-Ash’ari-Maturidi, Ibn Qudama al-Maqdisi in his Lum’a al-I’tiqad, as “perhaps the best commentary”; the latter states

“one is obliged to believe in and accept without reservation all that has come in the Quran or has been soundly narrated by the Messenger of God (s) [may the peace and blessings of God be upon him] concerning the attributes of the most Merciful One. One should refrain from rejecting them, indulging in their interpretation, or drawing comparisons and the likenesses between God and His creation.”

One is left to wonder how far Gomaa would take a revisionist stance to late Ash’ari theology in favour of an earlier minimalist version. For instance, would he also prefer not to engage in specifically defining the contrast between the actual speech of God (kalam nafsi) and the revealed Books of God (kalam lafzi)? Would he just stop at saying that the Qur’an is the Word of God or simply the uncreated Word of God? A comprehensive minimalism of the scholastic schools could be more effective for a modern age, eschewing many past and contemporary polemics, of which the answer to this latter question is a consequence.

The legal method of the work is helpfully explained at the beginning by Gomaa himself, under the title of “The Craft of Issuing a Fatwa.” Centrally, he sees the mufti’s job in this age to be one of making “things easy for people by bringing them into God’s religion, protecting them, and providing a means whereby they can act in accordance with a position that is acknowledged by the Shari’ah.” Gomaa notes the mufti should, when responding to a question, first consult the Qur’an, then the Sunnah if not in the Qur’an, then analogy if not in the Sunnah, and should “not breach consensus.” Furthermore, “the protocol established by the schools of jurisprudence allows the mufti to issue fatwas following any of the mujtahid schools, so long as his own ijtihad does not lead him to believe the truth lies elsewhere.” He explains that the Dar al-Ifta’ al-Misriyyah (the Egyptian House of Legal Judgements) transmits the four Sunni schools (Hanafi, Maliki, Shafi’i and Hanbali), as well as the schools followed by many non-Sunnis (such as the Ja’fari, Zaydi, Ibadi and Zahiri), and even

“widens the scope of the evidence upon which it relies to include the schools of major mujtahids like al-Awza’i, al-Tabari, al-Layth ibn Sa’d, and others from among over eighty mujtahids throughout Muslim history. These schools’ opinions are taken into account and may even be given priority of consideration according to the strength of their evidence, the need for their perspective, the purpose of the greater good, or in order to fulfil the goals of the Shari’ah. This methodology reflects the values adopted by all scholarly societies today, in both the East and the West and throughout the Muslim world.”

In light of such comments, it is not surprising that Gomaa doesn’t show a madhhab bias from a strict ideological stance.

One of the highest points in the legal answers is his response to whether the inheritance laws of Islamic law are oppressive of women (question 9). This answer is so important because there is really very little knowledge, never mind defence, of the inheritance rules in English. His answer is very detailed and its summary is that there are

“…thirty scenarios in which a woman inherits either the same amount as a man or more than him. In some cases she inherits while her male equivalent does not inherit at all. There are only four scenarios, however, in which a woman inherits half the share of a man.”

It is the general failure to know such thirty-four possible scenarios, whilst also being unable to recall that Islamic law has been laid-down by God for all people for all times in all societies (and not one’s personal family and whims), that leads to many modern misgivings. What drove home the importance of this detailed fatwa by Gomaa was the recollection of a BBC series on inheritance, entitled “Can’t Take it With You.” Now one of the series had a Muslim couple from England who wanted to write a will that complied with Islamic and English legal requirements; but they were taken aback when told that the Qur’an stipulated that their daughters were entitled to half of the share that their son was due. Sadly, the programme did not introduce an answer like Gomaa’s, which shows a great understanding of the Sacred Law, as well as fiqh al-waqi’ (comprehension of the social realities). Firstly, the Sacred Law understanding is stronger with Gomaa here because his answer agrees with the Qur’an and the scholars of Islam. Secondly, he highlights the reality of why a brother in such a scenario would be entitled to more than his sister:

“When a group of inheritors, such as the children of the deceased, are equal in the first two aforementioned factors [of degree of kinship to the deceased and generation to which the heir belongs], then their shares are affected by the third [of financial responsibility]. In this specific scenario the misunderstood Quranic verses alluded to in the original question come into play. The Quran has not made the disparity between men and women a general condition, but rather has confined it to this specific situation. When the individuals in a group of heirs are equal in both their relation to the deceased and their age, the male son of the deceased receives twice as much as the female daughter of the deceased. The wisdom behind this arrangement is as follows: the male is responsible for the financial upkeep of his wife and children, whereas his sister’s financial upkeep is the responsibility of an individual other than herself, such as her husband or father. Thus, for all practical purposes, the disparity favours the woman because the wealth she inherits is not applicable to the household expenses and hers is to dispense with as she pleases. This financial advantage also protects her from any circumstances that would place her in financial difficulty. Unfortunately, few today understand this finer point of the Muslim inheritance system.”

Gomaa adds that a man also has financial responsibility to “provide a dowry for his spouse,” which “is an obligation that falls on men, not women”; and “men are also required to financially support the members of their extended family if the situation demands.” This answer truly shows the now clichéd context with the text, without having to alter the ruling. Indeed, Gomaa points out our general superficiality by highlighting that

“…wealth is a broader concept than income. Income becomes part of wealth but is not wealth itself, since wealth is that which remains after all expenditure. In the scenarios where a woman receives half of the man’s inheritance, the woman’s new income is protected by the Shari’ah and is hers to dispense with as she wishes. The man’s new income, on the other hand, is to aid him in supporting family members that have now come under his care. This is why we are able to say that Islamic inheritance laws protect the wealth of women and grant preference to them over men.”

We are helpfully reminded by this answer that Gomaa’s first degree, as mentioned in the translators’ introduction, was in commerce from ‘Ayn Shams University, so he has, hopefully, a full understanding of economic consequences necessary for the question, together with his extensive legal training at al-Azhar University.

Nonetheless, economic and legal training is not political training, and two answers of a political nature in the collection might cause concern for some. The first is the answer to question 23 where he uses the legal understanding of Abu Hanifah and Shaybani to permit Muslims living in bilad ghayr al-Muslimin (non-Muslim lands) – for he prefers to call the latter such, as opposed to dar al-kufr (the abode of disbelief) or dar al-harb (the abode of war), because “the situation, however, has changed” and Muslims are not now prevented from residing in such lands and, he says, “there is no open declaration of war against Islam and the Muslims” – to give and take usury (riba) and other transactions that would be invalid in Muslim lands, such as selling meat that has not been slaughtered in accordance with Islamic law, and to sell pork or alcohol, or to engage in gambling. [This fatwa was discussed on virtualmosque.com previously; see here.] Gomaa’s understanding of Abu Hanifah and Shaybani’s stances is understood as correct, as reported by Taqi ‘Uthmani (in Contemporary Fatawa), ‘Abdullah Bin Bayyah (in the CD series entitled “Sacred Law in Secular Lands: A Survival Guide for Muslims in the West, volume 1” trans. Hamza Yusuf), and Muhammad Hamid (as cited in Reliance of the Traveller, trans. Nuh Keller).

Now ‘Uthmani, Bin Bayyah and Hamid concentrate on why they prefer the stance of those that opposed Abu Hanifah’s allowing Muslims to act differently in dar al-harb to how they are obliged to act in Muslim lands. ‘Uthmani appeals to the “overwhelming majority” who opposed such a stance, while Hamid appeals tentatively to the opposing view of Shafi’i and Abu Yusuf which “is not a feeble viewpoint unsupported by evidence.” Bin Bayyah argues that terms like dar al-harb and dar al-Islam, etc. are not “textual”, i.e. from the Qur’an and hadith (narration), and that the world should be re-evaluated because the modern world has changed so much (for another source for Bin Bayyah’s views, see here); and this accords with Gomaa’s understanding in the answer, as well. As H.A. Hellyer mentions in his Muslims of Europe: the ‘Other’ Europeans, Bin Bayyah prefers to call the west dar al-aman (the abode of trust). Indeed, as explained above initially, Gomaa himself disavows the use of the term dar al-harb in the modern context, but is satisfied to apply a ruling formulated in relation to that currently non-existent state of affairs.

Now, what none of the aforementioned scholars do is address whether Abu Hanifah’s actual ruling would remain in the modern context, according to his own criteria. This is the single argument that would prove the death knell to those who want to uphold the position on the basis that the west is still dar al-harb in Abu Hanifah’s understanding. [I will focus on Abu Hanifah’s position because Shaybani’s view, as discussed below, has potentially more far-reaching consequences, with the whole world perhaps being viewed as dar al-harb.] The editor of ‘Uthmani’s Contemporary Fatawa, Muhammad Shoaib Omar – whom ‘Uthmani praises in the foreword as his “learned brother” who added “explanatory footnotes which elucidate certain answers,” and to which he is “grateful” – tentatively raises the problem in the footnote to ‘Uthmani opposing the permissibility of usury in the west based on Abu Hanifah’s understanding:

“Muslims living as minorities in non-Muslim countries enjoy constitutional rights and protections, within a secular state in common with other citizens. Their status appears to be different from Darul-Harb, literally a state of ongoing military conflict between Darul-Islam and Darul-Harb. There is a need to properly define Darul-Harb in the context of the modern state to determine whether Imam Abu Hanifah’s view [italics in the original, not mine – AB] has any application at all.”

The study called for by Omar was addressed, in large part, by another Azhari, Ahmed Mohsen al-Dawoody, in his Ph.D dissertation (2009) at the University of Birmingham, England, entitled “War in Islamic Law: Justification and Regulations” (subsequently published by Palgrave as The Islamic Law of War: Justifications and Regulations). Al-Dawoody notes that Shaybani considered dar al-Islam to be a place where “Islamic law is applied”; but that Abu Hanifah thought that “dar al-Islam is a territory in which Islamic law is applied and Muslims and ahl al-dhimma (non-Muslim citizens of the dar al-Islam) are safe.” Jasser Auda, in a paper entitled “How much of a ‘Land of Islam’ is Today’s Europe? A Study in the Classic Jurisprudence,” quotes Abu Hanifah from Kasani’s Bada’i al-Sana’i:  “The purpose (maqsud)[sic] of calling a certain land a ‘Land of Islam’ or a ‘land of disbelief (kufr)’ is not Islam versus kufr. It is security versus insecurity.”

Bin Bayyah, in “Sacred Law in Secular Lands”, said that the Hanafis, including Sarakhsi and Kasani, said that dar al-Islam is wherever the Muslims have “amn”, or “safety, well-being or security.” Shahrul Hussain, another graduate of al-Azhar, in his Dār al-Islām and Dār al-Ĥarb: An Analytical Study of its Historical Inception, its Definition by the Classical Scholars and its Application to the Contemporary World, quotes the relevant section from Sarakhsi on dar al-Islam in the latter’s al-Mabsut: “A place which is under the authority or ownership of Muslims and the proof (of this) is that Muslims are safe therein.” Al-Dawoody adds, while seizing upon this notion of “safety”:

“In other words, it [namely, dar al-harb] is a territory in which freedom of religion does not exist and the lives of Muslims and dhimmis are not safe. Thus, the classifications of dār al-harb and dār al-Islām refer to the existence or non-existence of safety and peace, specifically the freedom of Muslims to apply and practice Islamic law. It is worth adding here that calling a territory dār al-harb “did not mean actual fighting”, but it clearly indicated a potential state of hostility, enmity or war in cases when territories did not belong to the dār al-Islām and did not have a peace treaty or alliance with it, and specifically if Islamic law could not be applied, Muslims were not safe to profess their belief in Islam and perform prayer, and the lives of the Muslims and dhimmis were imperilled…

“According to [Wahbah] al-Zuhaylī [in his Āthār al-Harb fī al-Islām], the majority of jurists, including Abū Hanifah, did not accept the third conceptual division of the dār al-sulh [the abode of agreement], arguing that, if a territory concludes a peace treaty and pays tax to the dār al-Islām, it becomes a part of the dār al-Islām and thus the dār al-Islām is obliged to protect it…

“Present-day non-Muslim countries would thus be classified as dār al-Islām according to Abū Hanīfah’s definition, since Muslims living there are safe, while in the opinion of other Hanafī jurists, al-Shaybānī and Abū Yūsuf, non-Muslim, as well as most Muslim, countries nowadays would be dār al-harb because some parts of Islamic law are not applied there.”

These scholarly attempts to try and actually understand what Abu Hanifah understood about dar al-harb presents enough material to call into question the idea that he would have upheld his peculiar ruling in question here. Even if one could say that the element of a non-Muslim signatory to a peace treaty with Muslim countries agreeing to pay taxes to the Muslim state is missing, hence calling into question whether he would have called the west dar al-Islam, the other conditions certainly raise doubts about whether he would have held today’s geo-political reality to identically reflect his understanding of his own time. Moreover, one must also question whether Shaybani would have held the same views on the matter. The subject has by no means been categorically finalised, but there are sufficient reasons to question a minority position that has potentially dire consequences if followed in the west.

To take a purely western view on the matter of permitting the taking and giving of usury, buying and selling alcohol and gambling, a mufti from the east should be very careful before giving such a fatwa to us in the west. This is especially the case when our inner city areas, filled with Muslims, are succumbing to the evils and crimes of those who consume alcohol (even as a consequence of Muslims selling the alcohol to them from their shops, as is the case with so many Arab-owned liquor stores in the inner cities of the USA), as well as succumbing themselves directly to the problems of accepting interest-based loans that they cannot maintain repayment of, or even gambling themselves into financial and mental oblivion as they become addicted to gambling and the dire consequences that result thereof to themselves and those closely around them. Moreover, in selling alcohol in the inner cities, how are Muslims going to appear like upright callers to a noble and pristine Islam when they are helping the human degradation complained about by Gil Scott-Heron in his song entitled “The Bottle”? In rejecting such a fatwa, we in the west might not only be able to reject it on the basis that the majority of Islamic jurists, past and present, have rejected it, or that one might be able to argue that even Abu Hanifah and Shaybani might have changed their positions if they lived in our time – as Gomaa says in “The Craft of Issuing a Fatwa”: “fatwas differ according to their specific time, place, people, and conditions” with regards to non-definitive matters that never change – but, rather, we in the west can reject the fatwa on the basis that it realistically holds great danger for us, especially those of us struggling with the already difficult realities of living in the inner cities of the west; and we really do not need Muslims contributing to this problem by making use (or misuse?) of such fatwas.

The second political fatwa that would raise eyebrows is in response to question 16 and the modern applicability of the corporal punishments of Islam (hudud). Gomaa says that these,

“have not been implemented in countries such as Egypt for over one thousand years. This is because the legal conditions for their implementation, which describe specific means for establishing guilt and stipulate the possibility of retracting a confession, are not met…The penal codes of the remainder of the Islamic countries, which number fifty-six out of the one hundred ninety-six countries of the world, remain silent on the issue of corporal punishment (hudud). This is because our age is one of general uncertainty (shubha), and the Prophet [s] [may the peace and blessings of God be upon him] said, ‘Stay the enforcement of corporal punishments when there is doubt.’ Furthermore, the legally accepted witnesses needed to convict offenders in capital cases necessitating corporal punishment have not existed for a long time. Al-Tanuki relates in his book Mishwar al-Muhadara, ‘A judge used to enter a district or a village and find forty witnesses of the sort of whom we are satisfied as to their being just and accurate, while today a judge enters a town and only finds one or two witnesses.’ Thus our age could be generally described as one in which there are no witnesses.”

One wonders at such a fatwa, not only in its grand historical presentation, but that it seemingly equates most of the Muslim world – with its great cities, such as Gomaa’s own Cairo, with their thousands of praying and dutiful believers, and hundreds of righteous scholars – with some rural “district” or “village.” The fatwa is certainly a secularist’s dream. Surprisingly for a leading Islamic scholar, Gomaa’s answer bespeaks of a certain resignation to the current situation, without seeking to remedy the situation which he admits neglects to follow certain Quranic stipulations. It is this seeming apathy and resignation that raises the most surprise. Now, with the greatest of respect, we are reminded by the Arab Spring that scholars – including Gomaa, as compassionately discussed here by Hisham Hellyer – are not always the most politically astute.

The translation of the book is strengthened by its being reviewed by two learned individuals trained in Islamic law, Abdullah ibn Hamid Ali and Musa Furber. Moreover, there is plenty of transliterated Arabic technical terminology in parenthesis, which are very helpful. Also, there is an interesting technique in the footnotes for the names of authors. On the whole, this technique for names is helpful and useful; for example, “Muhammad ibn Isma’il AL-BUKHARI” is first written and thereafter “AL-BUKHARI”, or “Muhmmad ibn ‘Abdullah AL-HAKIM” is thereafter followed by “AL-HAKIM.” In the overwhelming number of cases, the emphasis given to identify the most popular understanding of a name is correct. However, a number of examples indicate a misleading emphasis: for example, “Muslim ibn Hajjaj AL-NAYSABURI” followed by “AL-NAYSABURI” thereafter when it should be “MUSLIM”; and the worst one is “Malik ibn ANIS” who is thereafter written as “ANIS”, which is a double blow to Imam Malik, because his father was called Anas and he was known as Malik, not Ibn Anas or Anas or Anis (sic). There are other examples of this type in relation to Abu Dawud (“AL-SIJISTANI”), Ibn Hibban (“AL-TAMIMI”) and Ibn Abi Shaybah (“AL-KUFI”), so, although infrequent, the reader should be on guard.

In conclusion, this is a worthy and welcome addition in English, with plenty of worthwhile scholarly discussion from Gomaa himself and from some of the greatest scholars of Islamic history, from across the various great schools. Nevertheless, the work is a warning to Muslim minorities in the west that they are to treat Islamic scholarship with caution, even if it comes from the best that Islamic scholarship has to offer at present. This puts a great onus on western Muslims to commit to studying the Islamic sciences, even if they don’t become fully-fledged scholars, but to become sufficiently informed so that they can coherently follow an Islamic scholarly argument, and have a certain limited level of selecting opinions that have the best scholarly strength and benefit (a sort of limited tarjih). Of course, we acknowledge that it is knowledge from the east that has enlightened our hearts, but the light from that region is multi-faceted, so we must be cautious against selecting only one beautiful beam to the exclusion of all others; and, at the same time, we must pray against being colour blind: thinking we truly see things, when we don’t see things as they are at all. Nonetheless, in the west, we are still in dire need of expert scholarship that seeks to empower the audience, and not one that seeks to bully through recourse to narrow authority. Finally, this work is a welcome addition to the English library, and we pray that more publishing houses have a similar goal of producing legal works from experts in the English language. To God is our reliance and to Him we declare our poverty.