“Qiyas (Analogical Reasoning) and some Problematic Issues in Islamic Law.
Introduction:
The Quran is the primary source of law. The other three sources’ i.e., the Sunnah, the Ijma and the Qiyas has been stamped with the revelatory character. Qiyas derives its value from these sources; hence it is indirectly infallible.
Muslim Jurisprudence (Fiqh), for the systematic deduction of law, developed a methodology of its own to interrupt and make deductions in line with the Shariah. For example, Qiyas (Analogy), Ijma (Consensus)……The basic usul are four: Quran, Sunnah, Ijma and Qiyas. The Various schools of Muslim Jurisprudence differ on the number of usul to be used or emphasized, although all of them include the Quran and the Sunnah.
Qiyas:
Qiyas is the fourth source of Islamic law. It is a restricted form of Ijtihad which means personal reasoning or interpretation. Thus Qiyas is reasoning by analogy.
According to the famous jurist Shihab al Din al Qarafi, Qiyas means,
“Establishing a relevance of a ruling in one case to another case because of a similarity in the attribute (cause or reason) upon which the ruling was based”.[1]
Literal Meaning of Qiyas:
Ø In its literal meaning, the word Qiyas means “measuring” or “ Estimating” one thing in terms of another.
Ø It also implies making two things equal, that is “Comparing”.
Technical Meaning of Qiyas:
In the technical sense as defined by the Jurists, it applies to
“The assignment of the hukm of an existing case found in the texts of Quran, The Sunnah or Ijma, to a new case whose hukm is not found in these sources on the basis of a common underlying attribute called the illah of the hukm”.
Another definition is:
“The equality of the case, whose hukm is not mentioned explicitly in the texts, with a case whose hukm is mentioned, on the basis of the equality between the underlying causes found in the two cases”.
Element of Qiyas:
The definition of Qiyas shows that it has four ingredients or elements:
Ø The case (set of facts) mentioned in the text with its hukm;
Ø The hukm of the set of facts mentioned in the text;
Ø The illah or the underlying cause that has led to the hukm:
Ø The new case or the set of facts for which the hukm has not been explicitly mentioned and which needs a hukm.[2]
| Components of the Analogy Process. |
| Primary Situation (Al-Asal) | Secondary Situation. (Al-Far) | Cause/Reason (Al-Illah) | Ruling. (Al-Hukm) |
| Analogy. (Legitimacy). |
| Legitimate “Source” of rulings | Invalid |
| Ø Shafi’is. Ø Maliki’is. Ø Hanafi’is. Ø Hanbali’is. Ø Ibadis. Ø Mutazalites. | Ø Zahiris. Ø Shia. Ø Zaydis. Ø Some Mutazalities. |
Some Problematic Issues in Application
v Kafa: Equality in marriage.
v Slavery: One-half.
v Marriage, Contract and Sale.
v Marriage, Contract and Lease.
v Peace treaties with non-Muslims.
1. Kafa' or Kufu': Equality in marriage:
You shall encourage those of you who are single to get married. They may marry the righteous among your male and female servants, if they are poor. GOD will enrich them from His grace. GOD is Bounteous, Knower (24:32).
The verse of the Quran shows the importance of the married life in Islam as marriage is at the core of all social institutions and it is no exception in Islam. Marriage is probably also the most important personal decision in an individual's life, whereby two individuals of opposite sex join together as one unit. Each of us as an individual has uniqueness. There is no such thing as perfect or guaranteed compatibility, but the more the incompatibility can be minimized is better. Not necessarily, but significant gap in age, education, wealth, status, can affect a harmonious marital life.
According to Dr Omer Farooq the prospective partners in marriage would share as much common or comparable background as possible is simply a common sense matter. Turning this into a legal requirement and treating certain violation of it as a matter of legal intervention by the parents and the Qadi (judge) are illustrative of legalistic tendencies.
This requirement is same in every school of thought but here the verdict of Hanafi school of thought is discussed. The following is taken from Hanafi text, Hedaya by al-Marghinani
a. Literal Meaning of Kafa:
“Kafa, in its literal sense, means equality.
b. Technical meaning of Kafa:
In the language of the law it signifies the equality of a man with a woman...
In marriage regard is had to equality, because the Prophet has commanded, saying:
'Take ye care that none contract women in marriage but their proper guardians, and that they be not so contracted but with their equals'
c. Problem:
According to the author of the article the problem here is that which has not been made a "requirement" of marriage either in the Qur'an or in Sunnah is turned into a requirement for the "validity" of the marriage. Moreover, if two adult prospective marriage partners violate this, the guardians can legally intervene through the court system and have the marriage dissolved.
Apparently, this requirement is based on textual proofs from the Prophet. Let's see the proof.
A'isha reported that the Prophet (s) said:
"Choose for your sperms the best women, marry with comparable [in Arabic, Kafa'] and make proposal of marriage to them."
d. Wise Guidance turned into legal ruling:
It should be pointed out that much such guidance from the Prophet is merely sensible and wise guidance, not necessarily to be treated as a matter of law. Turning everything like this into legal matters is the kind of legalism Muslim society has fallen victim of.
e. Authenticity of the Hadith:
Let us take a closer look at this hadith. It is not a mutawatir hadith, which yields certainty of knowledge that that's what the Prophet has said. It is neither mutawatir bil lafz (exact words) nor bil ma'na (meaning). Even Sahih or otherwise known as authentic hadith does not yield certainty of knowledge. A bigger problem is that this is not even a Sahih hadith. The comments in Sunan Ibn Majah about this hadith clarify it amply.
According to al-Zawaid, its isnad contains in it Harith b. Imran al-Madine. Abu Hatim said about him: He is not a sound transmitter and the hadith, i.e. this hadith, which he transmitted from the reliable authorities, has no basis. Dara Qutni said, "He is matruk" [Ibn Majah, Vol. 3, p. 180]
According to Omer Farooq he has searched Bukhari and Muslim and find chapter "Equality in marriage", but none of the hadiths there is as specific as the one quoted above from Ibn Majah.
This is crystal clear that the hadith mentioned above is not authentic and not valid for deducing any law and no one can be the culprit of violating the law based on this hadith.
So according to Omer Farooq, “some valuable words of wisdom and exhortation from the Prophet have been turned into a matter of law, based on a hadith that not only does not yield certainty of knowledge, but also is not an authentic or undisputed hadith. Yet, this is not an example of Qiyas, because the general principle of equality or compatibility underlying this legal position is at least informed by a hadith”.
f. Scholars stretched the matter of equality:
The relevant scholars stretched the matter of equality to a level that falls within the realm of Qiyas, because such stretching is supported neither by the Qur'an or Sunnah. This is done by misusing the Qiyas and laws are based on this type of Qiyas.
g. Kafa in Piety and Virtue:
The specification of kafa' in piety and virtue is simply untenable. Of course, any individual with bad reputation or habits should be taken into consideration by the relevant parties to marriage. But why turn this into a matter of law, if two adult Muslims want to marry, even where they don't have kafa' in terms of piety and virtue?
“Equality is to be regarded with respect to property, by which is understood a man being possessed of a sufficiency to discharge the dower and provide maintenance; …
h. Kafa and Mahr:
Once again, dower (mahr) is a required condition of marriage and is covered by separate sources in the Qur'an and the Sunnah. Some degree of compatibility or comparability in terms of wealth and property is a matter of common sense. No need to turn it into a legal requirement, except to protect the rights of any weaker or disadvantaged party.
i. Equality in marriage with respect to lineage:
“Equality is regarded with respect to lineage, this being a source of distinction among mankind. It is said that there should be equality in marriage with regard to lineage of both parties. It clearly depicts that all the people in the world are not equal in status.
An Ajam who is the first of his family professing the faith is not the equal of woman whose father is a Muslim.”
The above reasoning, except the dissenting opinion of Abu Yusuf in this case, categorically contradicts the teachings of the Prophet. In the famous Last Sermon, the Prophet demolished all such notions. He said:
All mankind is from Adam and Eve, an Arab has no superiority over a non-Arab nor a non-Arab has any superiority over an Arab; also a white has no superiority over black nor does a black have any superiority over white except by piety and good action.
To claim that a converted Muslim is not equal to someone who has been born into a Muslim family is also an outrageous misapplication of Qiyas.
j. Examples of Stretching of Qiyas in Haskafi's Durr-ul-Mukhtar:
The overstretching of Qiyas, as presented in Hedaya, was further stretched in later legal treatises. Here are some examples from Haskafi's Durr-ul-Mukhtar.
“A male emancipated by a man of low class will not be equal to a woman emancipated by a person belonging to the gentiles.”
“An Ajam (non-Arab) male is not as equal to an Arab female, although the Ajam be a learned man or a king, and this is the most correct view.”
“A Hanafi male is an equal to the daughter of a Shafei, and if we are asked as to whether it is valid according to the doctrines of that sect, we will say in reply that it is valid according to our sect.”
k. Inferiority of Bride:
The segment of Hedaya on this topic begins with a prefatory remark: "Kafat, in its literal sense, means equality. In the language of the law it signifies the equality of a man with a woman..." However, the legal analysis and reasoning that came about turned the issue of equality, in reality, into an endorsement of inequality. Indeed, what was supposedly formulated to protect women and their family in terms of their rights and status became an issue of inferiority of bride. “How can the issue of equality on which these scholars insist becomes an issue of "inferiority of bride"? Well, when human reasoning, as in this case Qiyas is overstretched, it is possible.
Hammudah Abd Al-Ati, author of a scholarly work, Family Structure of Islam, offers an illuminating analysis as to why the Classical scholars may have gone in that direction of such emphasis on kafa'. He makes a distinction between "social equality in marriage" and "religious equality in marriage."
Whatever way one views this, the fact is that the egalitarian view of Islam was seriously compromised in such rulings about kafa', through use of unauthentic or disputable ahadiths and misapplication of Qiyas.
Final Analysis:
In this article Dr Omer Farooq demonstrates the misapplication and misuse of Qiyas in by deriving the legal rulings on the basis of Qiyas. Even the ahadiths are not authentic and some time contrary to human reasoning too but scholars have taken that and the wise saying or advices of prophet PBUH is made as the compulsory legal rules and regulations for the marriage contract. They stretch Qiyas on the basis of these narrations which are even not authentic ahadiths. Allah and His messenger Prophet PBUH clearly states that the high rank is of piteous only. The wealth, color, creed or social status is not the criterion of judging a person for equality in marriage but the religion is the clear base along with piteousness and righteousness. According to him by stretching and mishandling Qiyas, scholars had made the rules of Kafa harsh to practice as no one is perfect and if one tries to find out this type of equality in marriages then most of the people will remain unmarried.
2. Slavery: The One-half Rule
Slavery was an institution inherited from the past and it existed as an ongoing condition during the earliest periods of Islam under the Prophet Muhammad. When Islam invited the humanity back to the original and pristine teachings of God, it duly upheld the fundamental dignity of human beings. Arguably, slavery was not categorically prohibited by Islam, as it has prohibited intoxicants, adultery or pork. This is the orthodox, but an erroneous position in my view. However, there is no question that Islam revolutionized the conditions of slavery and set the institution on the path of abolition. It even set a permanent fund as part of Zakah, one of the five ritual pillars of Islam, specifically designated for securing freedom of those who are in bondage/slavery. The guidance of the Qur'an and the leadership of Prophet Muhammad revolutionized the contemporary society by defining and establishing certain laws and parameters for the slaves, elevated their human dignity even as slaves, and put on motion a movement toward freedom for the existing slaves. Enslavement of free people became prohibited, except captivity due to warfare. Even in case of these war captives and slaves, general incentives as well as exhortation facilitated an environment for freeing the slaves. One part of obligatory Zakah was permanently allocated for freeing people from slavery. The Prophet taught that freeing people was such a noble virtue that it can help people in their salvation from God. Some war captives (who could have been turned into slaves) were given the option of emancipation, if they could offer literacy to a number of people from the nascent Muslim community in Madinah. Freeing people from bondage was presented by the Prophet as an important way to expiate for sins. Freeing slaves was established as a recourse, if they were beaten or slapped. The jurist arise some issue by some hadith It is worth pointing out that the discourse about slavery pertains to only those who are already in slavery, because turning any free persons into a slave (through trade) is regarded prohibited. Several hadiths in Sahih al-Bukhari and other collections, similar to the one below, indicate that God will be an adversary on the Day of Judgment against those who sell free persons into slavery.
The Prophet said, "Allah says, 'I will be against three persons on the Day of Resurrection:
1. One who makes a covenant in My Name, but he proves treacherous.
2. One who sells a free person (as a slave) and eats the price,
3. And one who employs a laborer and gets the full work done by him but does not pay him his wages."
Based on hadith like the above, the scholars and jurisprudents hold the opinion that any trade involving free persons is prohibited. So, the issue pertains only to those who are already in slavery or war captives. We still haven't dealt with the pertinent verses in the Qur'an. However, the ethos of the all the above narrations from the Prophet can be summed up in one terse command from the Prophet: "Set free the slaves (raqaba)..." [Musnad Ahmad, #18672]. The orthodoxy erroneously argues that the Prophet has never specifically or categorically prohibited slavery. However, this is based on the claim that they can't find the word "haram" or "prohibited" or any prohibitive injunction in case of slavery. This is an outrageous error because all the things that are considered "prohibited" (haram) or "obligatory" (fard) are not based on the explicit presence of such expression in textual sources (i.e., the Qur'an and Sunnah). Indeed, the religious scholars and jurisprudents have made prohibited or turned into requirements so many things based on the weakest of hadiths or even misapplications of qiyas (as illustrated in the preceding section on Kafa'). But when it came to asserting the fundamental human dignity by taking the movement of the Prophet for emancipation to its logical conclusion, the Islamic position on slavery was turned on its head. Ibn Shihab said: Others have added: "[The price of the slave] shall be estimated in the same manner as that of a commodity. ...
He asked: What is the proof?
[Shafi] replied: "It is an analogy [based on the case] of the criminal offence committed by a freeman. He said: [The compensation for the slave] differs from the diya of the freeman, because the latter is specified, while the former is equal to his price, just as commodities--such as camels, beans, beasts and the like--are price."
It is noticeable how casually the issues pertaining to slaves are cast in terms of commodities based on qiyas. Such dehumanization of slaves is most regrettable, because it is also inconsistent with the perspective of the Qur'an and the Prophet that has ennobled and sanctified human life. A more egregious application of the laws pertaining to slaves was formulated based on a qiyas of a mathematical ratio of ONE-HALF.
Here we take a closer and more detailed look at the Hanafi position, once again, from Hedaya.
Slaves can marry up to two only: "It is lawful for a freeman to marry four wives, whether free or slaves; ... It is unlawful for a man who is a slave to marry more than two women; Malik maintains that it is lawful for a slave to marry as many women as a freeman, he holding it as a principle, that a slave, with respect to marriage, is in every particular the same as a free person, insomuch that (according to him) a slave is authorized to marry without his proprietor's consent. The argument of our doctors, in this case, is that slavery operates to the privation of one half of the natural privileges and enjoyments, and the legality of four wives in marriage being of this description, it follows that the privilege of a slave extends to the possession of two wives only, in order that the dignity of freedom may be duly supported."
For slaves, only two divorce pronouncements: "The utmost number of divorces, with respect to a female slave, is two, whether her husband be a slave or free; and the same with respect to a free woman is three. -- Shafei has said that, in the number of divorces, respect to be had to the state of the man; that is to say, if the husband be free he is empowered to pronounce three divorces although his wife be a slave; whereas, if he be a slave, he is not authorized to give more than two divorces, although his wife should be a free woman, the prophet having said, "In divorce the state of the husband is to be regarded, and in iddat that of the wife:" -- The divorces of a female slave are two and her iddat is two courses". Secondly, it is the woman who is subject of legality, and this legality entitles her to benefits; but slavery entitles only to half of these benefits; hence it follows that, the divorce of a female slave should not exceed one and a half, but such subdivision of it being impossible, her divorces extend to two. -- As to the saying of the prophet quote by Shafei, that "in divorce the state of the husband is to be regarded," it means no more than that the efficiency of divorce proceeds from him.”
Of course, two divorces for slaves do not constitute one-half of the three divorces as norms for divorces by free men. But as clearly indicated, the same One-half Rule was invoked. So, where does this One-half Rule come from?
If any of you have not the means wherewith to wed free believing women, they may wed believing girls from among those whom your right hands possess: And Allah hath full knowledge about your faith. Ye are one from another: Wed them with the leave of their owners, and give them their dowers, according to what is reasonable: They should be chaste, not lustful, nor taking paramours: when they are taken in wedlock, if they fall into shame, their punishment is half that for free women. This (permission) is for those among you who fear sin; but it is better for you that ye practise self-restraint. And Allah is Oft-forgiving, Most Merciful. [4/an-Nisa/25]
It is legalistic approach that has misled the scholars and jurisprudents on this issue. Based on the hadiths like in Sahih al-Bukhari 430, cited above, where it is mentioned that Allah will be against anyone "who sells a free person (as a slave) and eats the price," the scholars have arrived at the agreement that turning free persons into slaves is forbidden. Thus, this should be the norm, affirming the fundamental dignity of human beings. However, instead of accepting this as a norm, and treating the existing slavery as a transitional phase until it is uprooted, the scholars and jurisprudents got entrapped in their legalism. The crux of the issue is not whether there is an explicit text or evidence that Islam prohibits slavery, (even though it can legitimately argued that the all the prohibitions or restrictions by the scholars are not based on any explicit text or evidence as such), the real issue is whether Islam upholds the fundamental dignity and sanctity of human beings and thus affirms freedom as the first (or one of the first)-order condition(s) in Islam. The Qur'an definitely does and the Prophet's life as well as exhortation demands an abolitionist view that was lost in the maze of orthodox legalism.
Marriage, Contract and Sale
Marriage is the core of all social institutions. In some societies/religions, such as Christianity, marriage is a sacrament (i.e. "a rite which removes the taboo on sexual intercourse between a man and a woman, while at the same time imposing a lifelong taboo on the intercourse of either of them with a third party"), by which it is made so sacred that it can't be dissolved. That's why the Roman Catholic Church considers divorce as one of the greatest sins and as such, prohibited. Marriage in Islam is neither sacramental nor just a contract. However, it seems that legalistic tendencies, which has become dominant in Islamic laws, has caused marriage as to be viewed with an overwhelming bias toward contractualism. From dowry to maintenance, or from marital obligations to divorce conditions/procedures, the emphasis on contractual dimension seems to be totally formalistic.
Al-Ati provides a detailed exposition of various economic and other modern theories to explain the custom of dowry. However, his analysis shows that none of those theories helps explain and understand the Islamic position on dowry. But let's first identify some salient aspects of dowry (mahr) in Islam. While Islam has mandated mahr, but it has not set any minimum or maximum. This is important in understanding the inability of most theories to explain Islam's position on mahr.
“Since Islam has set neither a dowry minimum, according to the majority of jurists, nor a dowry maximum, in the opinion of all jurists, why did it prescribe it in the first place? We have previously noted several theories concerning the institutionalization of dowry. But none of these by itself seems adequately account for dowry in Islam.”
The theory that dowry is compensation to the father or his substitute for the loss of the girl's economic services is inapplicable for the primary reasons that dowry can be such a nominal value that it would hardly be considered as any compensation to the guardian. Also, Islam mandates that the mahr belongs exclusively to the bride. It can't be claimed or usurped by anyone else, including bride's parents or other guardians.
So, what are some of the religious explanations by the Muslim scholars and jurists?
“Muslim jurists of later centuries have held the technical view that dowry is enjoined in return for the man's right, at least potentially, to have legitimate access to cohabitation with the woman in question. She is entitled to dowry because she has consented to marriage and made herself accessible. Much discussion among the jurists has centered on this issue. But the exponents of this view appear to assume or to infer that women have no sexual desires and needs of their own, that gratification is not reciprocal, that sex is a cheap commodity in view of the permissibility of nominal dowries, and that marriage is little more than a commercial transaction. That list of assumptions and inferences may be extended. Yet, these seem contrary to the bio-psychological facts and to the very idea of marriage which is depicted in the Qur'an (e.g., 30:21) as a shelter of peace and comfort, and as a means of mutual love and mercy."
Not really that significantly large to serve the said purpose.
I don't know how many Muslims get into marriage, where the marrying parties think that they are getting into a commercial transaction: the bridegroom thinking that he is involved in a purchase and the bride thinking that she is involved is a sale. Even without any scientific survey or scientific study, it can be safely asserted that like my beloved wife, most women would be nauseated and repulsed at the thought of marriage as selling themselves. Let alone the women, as a man, I find the idea of any kind of sale/purchase in regard to marriage quite repugnant. Unfortunately, reading the legalistic works and positions of our jurists and scholars, one can't but have the distinct impression that they have reduced marriage into a commercial transaction.
The author takes dowery in the sense of commercial transaction and he says that bridegroom and bride both consider them selves as they are involved in sale and purchase. But we can not consider this view as right because dowery is bride’s right and the purpose of giving dowery to provide her comfort.
“A woman may refuse to admit her husband to a carnal connection until she has receive her dower of him, so as that her right may be maintained to the return, in the same manner as that of her husband to the object for which the return is given, as in sale.
What is here advanced proceeds upon a supposition of the whole dower, or a certain portion of it, being Moajil, or prompt; but if the whole be Mowjil, or deferred, the woman is not at liberty to refuse the embraces of her husband, as she has dropped her right by agreeing to make her dower Mowjil, -- the same as in the case of sale, where, if the price of the article sold be made deferrable, the seller is not at liberty to detain the article sold on account of the price
"It is proper to observe, that where the woman refuses to admit the husband to a repetition of the carnal act, as above stated, yet she has, nevertheless, (according to Haneefa) a claim to her subsistence, as her refusal does not, in any case, proceed from any stubbornness or disobedience, since it is not exerted in resistance to a right, but rather in maintenance of one. -- The two disciples hold that she is not entitled to any subsistence; -- and their argument on this occasion is, that the sole object of the contract has been duly delivered to the husband, either by the single carnal act, or by the single complete retirement, as aforesaid; on which account it is that her right to her whole dower is confirmed and established, and consequently no right of further detention of her person remains with her; as in a case of sale, where the seller having delivered the article sold to the purchaser, before receiving the price, has no farther right over it
The author says that a woman can refuse to admit the husband to a repetition of the carnal act, because it’s her right to give her her Mahr first.
"If a man marries two women by one contract, one of whom is lawful to him, and the other prohibited, his marriage with the one who is lawful holds good, but that with the other is void, because in that only a cause of nullity is found: contrary to where a man puts together a freeman and a slave, and sells them by one agreement, as such sale is null with respect to both, because sale is rendered null by invalid condition, and the consent to the contract of sale is required with respect to the free person, in order to the legality of it with respect to slaves.
So, how did the jurists draw this "sale" connection? The answer is qiyas. Marriage is a contract, and so is purchase/sale (commercial transactions or exchanges). Therefore, in enforcing the right of the husband to have his wife in his bed, in denying maintenance to the wife when she refuses to share bed with his husband, or in determining a lawful/valid and unlawful/invalid marriage, the jurists have found tremendous analogical parallel in purchase/sale transactions.
The jurists are right in there qiyas that marriage is a contract, and so is purchase/sale. Neither the theories offered by social scientists nor the ones underlying our jurists and scholars help us understand and properly appreciate the role of mahr in Islam. Acknowledging the need for exploration, al-Ati offers some suggestions that are quite relevant and meaningful.
“Dowry is probably a symbolic expression of the groom's cognizance of the economic responsibilities of marriage and of his readiness to discharge all such responsibilities subsequent to marriage. It may be thought of as a manifest assurance on his part that the bride's economic security and rights will be maintained. It is a symbolic acknowledgment that he does or will dissociate the purpose of marriage from the designs of economic exploitations. For 'instinctive' or cultural reasons, it is usually the women who need reassurance of the man's intentions and interest. This reassurance may require more than verbal expressions of love and seriousness on the man's part, and dowry may be the tangible symbol of such love and seriousness. To the bridge, it is a token of the groom's desire to enter into a union with her. To her family, it is a gesture of mutual friendship and solidarity, an assurance that their daughter will be secure and in good hands. However, there may be other symbolic meanings of dowry, as has been mentioned earlier. Nor is it to be overlooked that what is being suggested here is conceptualized in terms of the religious and moral ideals which may or may not be in fact fully implemented. There is no sufficient ground to assume that the actual has always coincided with the ideal in this case.
Here the author says that dowery is bride’s right which is given to her for her comfort and her parents think that she is in save hands now and it is a gesture of mutual friendship and solidarity and the author is very right in saying this.
Marriage, contract and lease:
Some such aspects of Islamic laws are simply impractical and some are unfair. For example, orthodox schools require that as part of the marriage, the wife is entitled to her own, exclusive dwelling.
“It is incumbent upon a husband to provide a separate apartment for his wife's habitation, to be solely and exclusively appropriated to her use, so as that none of the husband's family, or others, may enter without her permission and desire, because this is essentially necessary to her, and is therefore her due the same as maintenance, the word of God appoints her a dwelling house as well as a subsistence: and as it is incumbent upon a husband to provide a habitation for his wife, so he is not at liberty to admit any person to a share in it, as this would be injurious to her, by endangering her property, and obstructing her enjoyment of his society ..."
“A wife is entitled to lodging in a house unoccupied by members of the husband's family.
There is hardly any effort on the part of our scholars and jurists to educate the women about this right and "requiring" the men to honor this right. Notably, there is no authentic and explicit textual evidence to offer such specified right to an exclusive dwelling for the wife, even though it can be safely asserted that Muslim wives would be deeply gratified by having such a right honored. The jurists are very right here.
“A husband is at liberty to prevent his wife's parents, or other relations, or her children by former marriage, from coming in to her, as her apartment or habitation is his property, which he may lawfully prevent any person from entering; but he cannot prevent them from seeing and conversing with her whenever they please ... Some have said that he cannot prohibit them from coming in to her, any more from conversing with or seeing her.
Just as assignment of an exclusive dwelling for the wife is a pleasant surprise to most women (and possibly a shocker to most men!), there are some real shockers for women. According to Islamic law, wives are entitled to certain maintenance (nifqa). But what does it consist of?
Islam gives equal rights to every human being so according to Islamic law wives are entitled to certain maintenance (nifqa) and that is her legal right which she can get from her husband. And it is her husband’s duty to provide her basic necessities of life. Nifqa actually consist on basic needs of life such as to provide her shelter, food, clothes etc.
“Nafaqa literally means that which a man spends over his children; in law it means feeding, clothing and lodging; in common use it signifies food
What about if the wife gets or becomes sick, especially on a long-term or even permanent basis? Well, the law is very clear. The wife is legally entitled only to food, clothing and lodging. Notably, there is no specific or detailed textual evidence to support such narrow definition of maintenance. Most Muslim men and women might be surprised or shocked at learning this, but Islamic law not only does not require the husband to take care of sick wife, but also not entitled to maintenance (food, clothing, lodging), especially if the wife cannot fulfill the primary basis for the contract to be able to carnally satisfy the husband!!!
The author is wrong because when Islam says that wife have right over her husband and husband have right over her wife then it means that they are responsible to provide comfort to each other in every situation. So this statement of author is not right.
“If a woman falls sick in her husband's house, she is still entitled to maintenance. This is upon a principle of benevolence, as analogy would suggest that she is not entitled to maintenance, where she falls sick so far as to be incapable of admitting her husband to the conjugal embrace, since in this case she cannot be deemed in custody for the purpose of enjoyment
“The Qur'an and the Sunnah have enjoined care for and kindness to the wife. Yet the application of this general principle to the case of a sick wife has stimulated curious arguments, differences or opinion, and legal niceties. According to some jurists, a sick wife who, on account of her failing health, is unable to discharge her marital duties has no legal right to maintenance by the husband.
Islam is a religion of peace and prosperity and Isalm always teaches us to help others and to do work for other’s comfort so in the case of husband and wife, Islam also teaches us to help each other and co operate with each other in every type of situation. So the statement of author is not right.
“The problem of maintenance of a sick wife is provocative, although it seems more apparent than real, that is, more of an academic exercise than a practical issue. It probably indicates that the later in time, the farther some jurists drifted away from the spirit of the law and its ethical foundations. It is curious that neither the Qur'an nor the Sunnah raised the problem in any way that can be likened to the approach of those jurists. Moreover, none of the disputants produces any authoritative evidence in support of his argument against the adversaries.
It is husbands duty to provide his wife medical care. It is his religious duty to provide her basic needs of life and medical care.
“Related to the problem of a sick wife's maintenance is the cost of her medical care. The formal consensus, not the unanimous opinion, of the majority of the jurists is that the husband is not legally responsible for the cost of medicine, the physician's fee, etc. Some jurists, however, maintain that if the husband is financially comfortable and the cost of medical care is modest, he is responsible for it. Others argue that even if he is not legally responsible for the cost, it is still his religious duty to bear the responsibility out of compassion, courtesy, or in conformity with the social norms. Those who exempt the husband from the responsibility do not consider the cost of medical care to be part of the obligatory maintenance. They draw an analogy between wifedom and leased property; tenants are not responsible for the repairs and improvement of the premises. Their obligation is to pay only the rent; the rest is the owner's charge. Like a tenant, a husband is not responsible for the cost of any treatment his wife may undergo to restore or improve her health.
The Qur'anic commandment for abstention from all activities when the call for the Friday prayer is made has also been used as a basis of qiyas extending to marriage.
"Sale of goods, or conducting business, during the time of the Friday congregational prayer is prohibited by the following verse of the Qur’an: “O you who believe! When the call is proclaimed to prayer on Friday, hastenearnestly to the remembrance of God, and leave off sales transactions.” The ‘illah of this prohibition is that which, from the transaction of sale, detains one from proceeding to the Friday prayer and the potentiality of alienating one from the Friday prayer. This ‘illah has been deemed to be present in the transactions of lease, of mortgage, and of marriage. Therefore, the hukm upon these transactions during the Friday prayer is the same as that of sale.
It is no wonder that many women are turning against the so-called orthodox Islamic laws, while they still feel attached to Islam that is embodied in the Qur'an and the Sunnah. Many Muslim men are also finding such laws in much of its details, especially using qiyas, a fallible methodology of human reasoning, asynchronous with Islam itself. Contemporary Muslim scholars, especially who are not trained in the orthodox tradition, are also challenging such legalism.
Moreover, such formal interpretations contain no authoritative evidence. Nor do they seem compatible with the ordinances of the Qur'an and the Sunnah, which unequivocally call for kindness, compassion, and consideration. Here again, the question arises: were these jurists fighting windmills or tackling a real problem? How could they overlook the strong directives of the Qur'an and the Sunnah, and focus, instead on such a formalistic approach?
The view that a husband may be exempted from the obligation of maintenance and payment for an indisposed wife's medical care cannot be explained in terms of any authoritative text from the Qur'an or the Traditions. Not only is there no such possible explanation, but also the very view is perhaps one of the clearest instances of 'deviation' from the orientation of the basic sources of Islamic law.”
It is important to understand that a misapplication of qiyas is not an isolated phenomenon. Al-Ati offers some insights about the directions the juristic works took over the centuries.
“Aside from the possibility of intellectualistic riddles or formal casuistries, this view, together with the accompanying analogy between wifedom and 'leased property' was probably a reflection of certain social and intellectual trends. ...
The demographic composition of the Muslim population was growing diverse as well as complex. An urban life style on a new large scale, with the concomitant relative anonymity and individuality, was increasingly in vogue. Under such circumstances, marital bonds would be regarded not so much as alliances of families, clans, or tribes or as "companionship" ties as individual 'contracts' largely oriented to specific formal exchanges of service. Women, as a rule, became increasingly secluded in the background and excluded from the world of men. ... With the traditional mother role so depreciated, and with the companion role so contested by other rivals, probably little was left for the normal housewife other than being an object of sexuality. Even that role was not confined to her exclusively.”
The legal treatises reflect such "seclusion of women" in their works. When getting married, does a wife regard or the husband expect that the wife would be "surrendering" to the "custody" of the husband? Or, does any woman expect that marriage for her is basically embracing "confinement"? Well, to the jurists, that's the way they understood marriage and presented their legal interpretations in that light.
“When a woman surrenders herself into the custody of her husband, it is incumbent upon him thenceforth to supply her with food, clothing, and lodging, whether she be a Muslim or an infidel, because such is the precept both in the Koran and in the traditions; and also, because maintenance is a recompense for the matrimonial restraint.
The word in Arabic is ahbas, derived from habasa. The characterization in the translation of Haskafi's Durr-ul-Mukhtar is more explicit and vivid.
“[M]maintenance is compensation for her confinement
As women became secluded in society, contrary to the legacy of the Prophetic period, and as women became "confined" by juristic discourses, Islamic legal discourse became confined and mired in legalism and lit
Peace Treaties with Non-Muslims
Islam is Divine religion. Allah like peace and the meaning of Islam is also peace. So Islam does not like injustice in a society. This is also prohibited for Muslims to not fight with each other and the best among Muslims are those who first establish peace instead of fighting. another thing is important ,if there is danger of one’s life by non Muslim and Muslims as well then the self defense must be preferred for the saving of life because life have very important in Islam from peace. Islam give principle for a Muslims and one of them is Self defense this step must be follow for preservation of Dean as well. Holy Prophet PBUH) and His rightly Guided caliphs (RA) and other Muslims worrier also engage to campaigns but these were not aggressive only to the welfare and need of time to establish a true base of Islam not enforce fully but with high moral values people inspired to accept it. In other way Qumran does not allowed for a common Muslim to create panic and disturbance in a society.
To those against whom war is made, permission is given (to fight), because they are wronged; - and verily, Allah is most powerful for their aid;
(They are) those who have been expelled from their homes in defiance of right, - (for no cause) except that they say, "our Lord is Allah". Did not Allah check one set of people by means of another, there would surely have been pulled down monasteries, churches, synagogues, and mosques, in which the name of Allah is commemorated in abundant measure. Allah will certainly aid those who aid his (cause); - for verily Allah is full of Strength, Exalted in Might, (able to enforce His Will). [22/al-Hajj/39-40]
At this point the researcher disagree to the author the concern of Islam and its aim must be to protect Mosques and it is the main duty of Muslim because Allah Himself says that these are the house of Allah and Human being (Muslims) call there may name (Worship).But on the other side Islam also advise Muslims to protect the Worship places of other means non Muslims churches, synagogues, temples, etc. .the reason behind it that they will also give respect to your mosques It is also stated in Ahadith that Allah says do not abuse to the gods of non Muslims may be due to lack of knowledge they abuse to your God and this is the biggest sin for both. Muslims at the time of war not harm to the children and women of non Muslims because they have no strength to fight with anyone. But if it goes in harm for it then this can be taken serious must fight with them. the question arises about the property of non Muslims ,while doing war with the property must be taken here means huge lands because on this way Muslims can gain power over them ,establish Islamic state but booty of war as also taken and use against them and keep it only for the fighting purpose(weapons).
But if the enemy inclines towards peace, you (also) incline towards peace, and trust in Allah: for He is One that hears and knows (all things). [8/al-Anfal/61]
If non Muslims incline towards peace then Muslims must be incline also towards peace according to the above verse, but it must be kept in mind that if the other
Party can give lose to Muslims on another way except fighting so some treaties must be made. The condition must be related to their own lose when they want to break it. After it preference can be given to peace.
And make not Allah's (name) an excuse in your oaths against doing good, or acting rightly, or making peace between people (an-Nas; mankind); for Allah is One Who hears and knows all things. [2/al-Baqarah/224].
Here the writer discuses the problems arises with the other people .mention non Muslim. So Muslims always in favor of peace but sometimes disturbance create by Muslims then to show himself as right then they take oath of the name of Allah then it is dislike by Him. So this is only for Muslims that they must not have any problem with each other and if it is then avoid taking oath and decide it with consultation of both. But if any time such issue arise and there is need of witness and one can not present it then at this point oath can be taken. If any time dispute arises in both Muslim and non Muslim then it must be solving with justice but here it is important that oath of non Muslim will not be acceptable.
And fight them on until there is no more Tumult or oppression, and there prevail justice and faith in Allah; but if they cease, Let there be no hostility except to those who practice oppression. [2/al-Baqarah/193]
Muslims must avoid wars but that along with such specified conditions the treatise must be sign with non Muslims but the purpose of that treatise must be peace.
It is not righteousness that ye turn your faces Towards east or West; but it is righteousness- to believe in Allah and the Last Day, and the Angels, and the Book, and the Messengers; to spend of your substance, out of love for Him, for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the ransom of slaves; to be steadfast in prayer, and practice regular charity; to fulfill the contracts/treaties which ye have made; and to be firm and patient, in pain (or suffering) and adversity, and throughout all periods of panic. Such are the people of truth, the Allah-fearing. [2/Al-Baqarah/177].
Three signs is mention in sahi ahadith that there are three signs of hypocrite and one of them is to break a promise by Muslim which he done to his brother. It is essential for a Muslim to must fulfill their promises including in every aspect speech, treaty or contract. But this principle must be follow by Muslim to the non Muslims as well. In some extent it goes to the point like someone deny Allah because who deny the saying of Allah indirectly they deny Allah. So in this matter must be fear from Allah and must fulfill promises.
If ye gain the mastery over them in war, disperse, with them, those who follow them that they may remember. [8/al-Anfal/55-57]
Muslims must maintain peace but it must be look forward to the other group as well that they can maintain such treatise or not then must go for the option of contacts just to avoid bloodshed.
According to Shafi opinion about the polytheists…that at least once in year attack must be on them. But here the important thing is that Prophet (PBUH) never says anything like it. And if they are they living in peace and also leave Muslims in peace as well then there are no needs of attack. But if it is concern about fear create in their hearts then it can be bring in this way if anyone tease Muslims then Muslims not keep any limits for them. But this also can be brought by justice. But if it comes under to extend Muslims territories and they want to gain power and establish a Islamic sort of government then step for attack on them must be taken. but on the different opinions of different imams (Hanafi, Shafi.Maliki and Humbli) that not agree every time at every point so they all give much importance to the principles of holy Prophet (PBUH) then their the others scholars Qiyas must be based on two primary sources Qur’an and sunah of Prophet (PBUH).otherwise the result will be different and disagreement must remain.
According to Dr. AbdulHamid AbuSulayman; that qiyas is done of a word and word because it is related to the imposition of subject based on legal ruling and must be kept in mind the previous experiences and examples similar to new case but according to the researcher result must not be similar but new change will taken place with every new issue
Conclusion;
Qiyas is based on human reasoning but the knowledge of jurists must be able to done this analogy. This is done only when new case arises and the present laws not enough for its solution. it does not mean that for a very common issue Qiyas is practice nor it is done for every similar case again and again according to Sunni it is primary but Shia consider them as secondary sources principles also related to the jurist while practicing Qiyas.For any purpose he will not disclose anything about it until it become the part of law.Qiyas is related to shari which is divine while qiyas is based on that rules of sharia which is divine., because sharia is based on the injunctions of Qur’an and Sunnah Prophet (PBUH).once it is done it must be comprehensive for all, Mohammad Hashim Kamali gives importance to wisdom and good sense in analogy but according to the researcher the negative aspect also give importance. one thing can be done with good sense but the results will be come best when the negative sense also keep in such issue. the rigidity is that Muslims is bind to follow it as they follow the injunctions of Qur’an and sunah of Prophet (PBUH) .the Muslims scholars is honorable for every one but in this not come under disrespect to analyze their work because due to many differences at one time the
Whole will agree to each other. So the original scholars must be followed by new scholars the reason is that that the base of one thing is taken from them but on the basis to identify their mistakes as well. But the new hukam must be base on the Qur’an and Sunnah Prophet (PBUH).
So the every stage have their own scholars and definitely they have knowledge and wisdom to which they impose such rules or hukam for the subjects .so it is also obey by subjects to avoid conflicting with each other on these issues and follow the opinions of the scholars because they taken these rules from the Qur’an and Sunnah Prophet (PBUH).
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