Contemporary Jurisprudential Perspectives (Book)

Author: Muhammadqasem Mobarez

• abstract

Contemporary Jurisprudential Perspectives (Book) (in persian: دیدگاه‌های فقهی معاصر (کتاب)) is the Persian translation of the book 'Contemporary Fatwas' (a collection of fatwas by Dr. Yusuf al-Qardawi), which addresses inquiries and questions posed by Muslims on various topics including family, worship, social issues, political matters, transactions, and similar subjects. This book analyzes and examines the principles and sub-principles of Islamic jurisprudence, particularly within the context of contemporary social and cultural conditions. 'Contemporary Fatwas' (فتاوی معاصرة» (« is an Arabic publication consisting of four volumes. Since it is written in response to inquiries, it contains a significant amount of scattered and repetitive content. The discussions on Islamic jurisprudence encompass various issues of contemporary jurisprudence as well as traditional jurisprudence, in addition to numerous non-jurisprudential topics. The primary jurisprudential themes of the book can be categorized under titles such as women's and family issues, economic jurisprudence and transactions, artistic matters and issues related to games and entertainment, political jurisprudence and governmental ISSUES, as well as health and medical jurisprudence. In this book, Qardawi does not limit himself to the four schools of thought and claims to have exercised independent reasoning (ijtihad) based on the Quran and the practice of the Prophet (Sunnah). He considers independent reasoning permissible only in matters of suspicion and where there is no explicit text. He believes that rulings can change based on cultural and environmental conditions, prohibits forced marriages for girls, and supports women's social participation and representation in legislative bodies. He deems sculpture and imagery as forbidden while considering music permissible. He allows passive euthanasia but opposes artificial insemination by a non-mahram man and embryo implantation. He declares peace with Israel as forbidden, categorizes bank interest as usury, and asserts that zakat is obligatory on capital.

The Structure and Subjects of the Book

The book 'Contemporary Jurisprudential Perspectives' was translated from Arabic to Persian by Ahmad Ne'mati and published by Ehsan Publishing between 2001 and 2010 in four volumes. Each volume contains similar content covering doctrinal, political, social, health-related, interpretative, narrative, and jurisprudential issues. The book 'Contemporary Fatwas' has been written in response to the inquiries of modern followers, which is why one of its notable features is its special focus on current issues within the Islamic community, particularly in areas such as economics, health, and family law. The most significant jurisprudential topics discussed in these four volumes can be categorized under the headings of women's and family issues, economic jurisprudence and transactions, artistic matters and issues related to games and entertainment, political jurisprudence and governmental matters, as well as health and medical jurisprudence. In this book, Qardawi does not merely issue fatwas; he elaborates on all issues and details related to rulings, wisdom, and their justifications, presenting this approach as the method of the Quran and the Prophet (Vol. 1, p. 39). He emphasizes the importance of considering the conditions of time, place, customs, and cultural context in deriving Islamic rulings, which is one of his fundamental claims. Furthermore, the interpretations and content of the book are based on the principles of the four Sunni schools of thought, with no reference or acknowledgment of the Ahl al-Bayt (AS) school or Shia Islam, either affirmatively or negatively.

The Author

The author of the book, Dr. Yusuf al-Qardawi (1916-2022), was an Egyptian Shafi'i -Salafi scholar. His responses to questions regarding Islamic rules in Friday prayers in Cairo and on Qatari television, along with his authorship of two significant works, 'The Halal and Haram in Islam' and 'The Jurisprudence of Zakat', established him as a religious authority within the Sunni world (Vol. 1, pp. 30-31). Membership in several scholarly and jurisprudential assemblies, including the World Muslim League in Mecca, the Research Center for Islamic Civilization in Jordan, the Center for Islamic Studies in Oxford, the Board of Trustees of the International Islamic University in Islamabad, the Islamic Call Institute in Sudan, and the chairmanship of the Sharia Supervisory Committee for various Islamic banks, is recorded in his academic achievements (Vol. 2, pp. 9-11).

Methodology

Qardawi has articulated his method of deriving rulings as follows:

1. Liberation from bias and imitation: According to Qardawi, in deriving rulings, adherence to reason and freedom from religious bias and imitation does not imply neglecting the imams of the various schools of thought and scholars; rather, it aligns with their methodology and the teachings of the Quran (Vol. 1, p. 31).
2. Ease and flexibility: Qardawi believes that the essence of Sharia and the context of current times necessitate a flexible interpretation of rulings. He notes that if there are two perspectives on a matter—one emphasizing caution and the other favoring ease—he will choose the latter for his rulings, as he argues this was the method practiced by the Prophet (Vol. 1, p. 37). However, he limits this flexibility to cases without clear textual guidance, stating that in instances such as interest-based transactions and the consumption of tobacco, which have explicit prohibitions, he will not allow for leniency.

Despite this claim, he argues against the permissibility of combining two prayers at will, even though he cites a narration from Muslim indicating that the Prophet combined two prayers outside of travel and necessity to alleviate hardship. The Hanbalis have acted based on this narration, yet without referencing the school of Ahl al-Bayt. He considers the permissibility of combining the two prayers conditional upon not becoming accustomed to it and the presence of necessity and hardship (Vol. 1, p. 326).

1. Utilizing comprehensible language: This means speaking with rational logic instead of appealing to emotions, providing the wisdom and reasoning behind each judgment, and avoiding complex scientific terminology.
2. Adherence to moderation: Qardawi claims to have maintained a balanced approach in all matters; he neither welcomes new ideas nor holds old fatwas in reverence. He does not deny fixed rulings like the proponents of evolution, nor does he ignore the demands of the times like people with rigid mindset, who declare everything as forbidden (Vol. 1, pp. 47-50).

Foundations and Criteria

Relying solely on the authority of the Book and Sunnah in deriving legal rulings

Qardawi, influenced by Hassan al-Banna, the founder of the Muslim Brotherhood, relies solely on the Quran and Sunnah for his jurisprudential interpretations. He asserts that he has never used the fatwas of religious leaders as a standard, as deriving rulings within a specific sect involves strict limitations that direct reference to the Quran and Sunnah does not impose (Vol. 1, p. 26). Nevertheless, he frequently cites the opinions of early scholars, including Ibn Taymiyyah and his student Ibn Qayyim, and has derived numerous rulings based on their perspectives. In certain instances, such as the topic of divorce, he explicitly states that he has chosen the views of Ibn Taymiyyah and his disciple (Vol. 1, p. 37).

The Rulings Are Subject to Change

Qardawi believes that the fatwa of a jurist can change based on the conditions and transformations of time, place, customs, and circumstances (Vol. 3, p. 76). He considers adaptability to be one of the advantages of Islamic law and a key to its dynamism (Vol. 4, p. 325). Accordingly, he comments on the Shafi'i fatwa that allows a father to marry off his daughter without her consent, stating that historical and cultural contexts significantly influence such rulings (Vol. 1, p. 12). Furthermore, regarding the provision in the verse (وَلِلمُطَلَّقَاتِ مَتَاعُ بالمَعرُوفِ) (And for divorced women is a provision in a fair manner), he asserts that what is deemed fair and appropriate can shift with changing time, environment, and circumstances (Vol. 3, p. 57).

Independent Reasoning (ijtihad) Is Permissible Only in Matters of Suspicion

Qardawi argues against those who advocate for extensive ijtihad in all jurisprudential rulings, asserting that the scope of ijtihad is limited to matters of suspicion rather than definitive rulings and cases with clear textual evidence. He critiques those he refers to as proponents of evolution, claiming that they sacrifice established rulings for the sake of transformation, which they believe should apply generally. For instance, they consider bank interest permissible, arguing that while usury was prohibited in the past due to the wealthy being the lenders and the poor the borrowers, the situation has reversed today, with banks as the powerful entities providing interest and the general populace as the recipients. In response, Qardawi maintains that usury has a well-defined ruling with abundant textual evidence, rendering ijtihad in this matter irrelevant. He believes that this rationale and understanding of the prohibition is fundamentally flawed, as usury encompasses various economic, social, and political factors (Vol. 1, pp. 47-49). Another example is the transformation of conditions for women, who were once buried alive, subjected to humiliation, and deprived of social status in the early Islamic period. Today, however, they have attained a more significant social standing than men. Qardawi emphasizes that despite these changes, it is not permissible to alter the texts or engage in independent reasoning. He argues that in cases such as the inheritance being twice as much for men, male guardianship, and polygamy, the changing circumstances do not allow for independent reasoning. He does not accept Umar's interpretations that contradict the texts and provides justifications for them (Vol. 1, p. 42).

Islamic Rulings Are Determined by the Principles of Benefit and Wisdom

Qardawi believes that all rulings and the Sharia are rooted in wisdom and benefit, even if some of these benefits may be beyond our understanding. He has elaborated on the wisdom behind certain rulings, such as the obligation of ritual purification after sexual intercourse (Vol. 1, pp. 301-302).

The Principle of Permissibility

According to Qardawi, the primary principle in all cases is permissibility. Unlike the Salafis, whose fatwas predominantly emphasize prohibition, he frequently references the principle of permissibility alongside the Quran, Sunnah, and the opinions of scholars and companions of the Prophet. He asserts that unless there is a clear and strong evidence against something, the default ruling is permissibility (Vol. 1, p. 44). For instance, regarding chess, he dismisses the related narrations since it became popular after the era of the Prophet, considering it permissible as long as it does not involve gambling (Vol. 3, pp. 200-226).

Women's Issues

Qardawi places significant emphasis on women's rights. While he believes that, from an Islamic perspective, complete equality between men and women is unattainable (Vol. 1, p. 42), his jurisprudential viewpoint seeks to establish a more suitable status and rights for women, considering the conditions of the era. Other challenging topics addressed in this section include spousal physical punishment, breastfeeding regulations (Vol. 3, pp. 50 and 343), the relationship and affection between boys and girls, marriage with people of the Book, and the interactions and roles of men and women outside the home.

The Right to Marry and Divorce

In response to forced marriages, Qardawi states that according to numerous hadiths, the general rule is that a marriage is invalid without the consent of the girl, making forced marriages particularly unacceptable. He argues that marrying a girl against her will contradicts reason and the principles of Sharia, as God does not permit a guardian to manage a girl's property without her consent; thus, it is illogical to compel her into marriage. Qardawi believes that there is no distinction between a virgin and a widow in this regard, and the prohibition on management is limited to minors. He also believes that even though the husband has the authority to initiate divorce, the interests of the wife are still ensured; as she is entitled to maintenance under certain conditions and has the right to seek divorce if she harbors animosity towards her husband. According to Qardawi, divorce initiated by the husband is a last resort, which, in the absence of valid justification, is prohibited under the principle of "no harm" (Vol. 3, pp. 13-19 and 56-59).

Women's Social Participation

Qardawi elaborates on the corrective influence and social involvement of women, focusing on the concept of public responsibility, the equal capabilities and characteristics of both men and women, the historical involvement of women in the social arenas of early Islam, and references to certain verses of the Quran. For instance, based on verses 67 and 71 of Surah at-Tawbah, «وَالمُؤمِنُونَ وَالمُؤمِنَاتُ بَعضُهُم أَولِيَاءُ بَعض يَأمُرُونَ بِٱلمَعرُوفِ وَيَنهَونَ عَنِ المُنكَرِ», he asserts that as hypocritical men and women collaborate in wrongdoing and the prohibition of good, believing men and women must also work together against hypocrisy (vol. 3, pp. 73-75 and 81; vol. 4, pp. 338 and 341). He considers the hadiths that prohibit women from participating in social settings, such as those attributed to the Prophet: 'It is better for a woman not to see a man nor for a man to see her,' 'Do not teach them writing,' and 'Consult them but oppose their opinions,' to be fabricated or weak and therefore not worthy of attention (vol. 4, pp. 339-340).

Women and the Legislative Assembly

Main article: Women's Political Positions According to Qardawi, women are permitted to participate in legislative assemblies. He supports his viewpoint by highlighting the inadequacies of opposing arguments and the principle of permissibility. These arguments include: a) Reference to verse 33 from Surah al-Ahzab, which states, «وَقَرنَ فِي بُيُوتِكُنَّ وَلَا تَبَرَّجنَ تَبَرُّجَ ٱلجاهِلِيَّةِ ٱلأُولَى» (And remain in your houses and do not display yourselves as [was] the display of the former times of ignorance): Qardawi believes that this verse is, firstly, directed towards to the wives of the Prophet. Secondly, despite being aware of this restriction, the Prophet's wives have participated in social matters; for instance, Aisha took part in the Battle of Jamal. Thirdly, the necessity to maintain occupations and counter secularism necessitates that believing women engage in social activities while upholding their faith. Fourthly, the ruling regarding a woman's confinement to the home, based on verse 15 of Surah an-Nisa, pertains to a specific period when adultery was widespread (Vol. 3, p. 77). b) Reference to restricting means and interaction with non-mahrams: Nevertheless, Qardawi asserts that such reasoning and excessive rigidity may at times destroy more significant interests and advantages (vol. 3, p. 78). c) Reference to the verse «ٱلرِّجَالُ قَوَّامُونَ عَلَى ٱلنِّسَاءِ» (Men are the protectors and maintainers of women) which suggests a prohibition on women's guardianship and authority over men. According to Qardawi, this issue does not arise in the context of parliamentary representatives, as the number of male representatives is typically greater, thus maintaining their authority. Furthermore, the verse regarding guardianship pertains specifically to marital and familial life, rather than social matters outside the family, which does not restrict women's responsibilities. Additionally, in contemporary societies where most systems are democratic, the powers of the parliament are quite limited, and the governance of the country is primarily in the hands of organizations and institutions, thereby not falling under women's jurisdiction. However, Qardawi, based on the aforementioned verse and narrations, does not consider the position of supreme leadership (leadership and presidency) permissible for women (Vol. 3, pp. 80-81 and 97).

Temporary (Misyar) Marriage

One of the controversial opinions of Qardawi that stirred debate among Sunni scholars is the fatwa permitting temporary marriage, known as Misyar marriage. In this arrangement, the woman is responsible for her own living expenses, while the man engages in a sexual and emotional relationship within her home. Qardawi asserts that all the necessary conditions for a valid marriage contract, such as mutual consent, the presence of witnesses, the permanence of the marriage, and the payment of the marriage portion, are fulfilled in Misyar marriage and are therefore valid (Vol. 4, pp. 349-350).

Islamic Jurisprudence and Art

Qardawi holds a dual perspective on artistic matters; while his fatwas regarding auditory and visual arts such as music, radio, and television are quite flexible, he adopts a strict and serious stance on visual arts. He believes that ghina is inherently a form of speech, similar to other forms of discourse, and does not consider it subject to the verses that prohibit and invalidate. Instead, he views it as permissible based on the principle of the presumption of permissibility, especially during times of celebration, where hadiths explicitly support its permissibility. Qardawi regards the prohibition of ghina as related to the content of the speech and surrounding issues (vol. 2, pp. 157 to 164; vol. 3, pp. 230 to 255). However, he considers the visual arts as impermissible, regardless of their current artistic value. He states that Islam prohibits the creation of human and animal sculptures, particularly those of Jesus, Mary, toys, ancient Egyptian statues, and hanging figures intended to ward off the evil eye. All of these are considered forbidden, and anyone who deems them permissible is deemed an infidel! (Vol. 2, p. 170) Furthermore, the act of hanging photographs on walls and in homes is also regarded as forbidden, as such images may be subject to veneration and respect (Vol. 2, p. 172).

Medical Ethics and Treatment in Islamic Jurisprudence

The transplantation of animal organs to humans, organ donation, the trade of vital and non-vital organs among Muslims and non-Muslims, abortion, blood banks, milk banks, human cloning, and other related topics are contentious issues within the field of medical jurisprudence and advancements in medicine, which Qardawi discusses in this book (vol. 3, pp. 313-339; vol. 4, pp. 409 and 600 on).

Killing out of Compassion (Euthanasia)

Euthanasia can be categorized into two types: the first is the active method, where a physician prescribes lethal medication after determining that the patient has no hope of recovery and is suffering. The second is the passive method, in which the physician ceases treatment in response to the patient's pain and despair. Qardawi considers the active form of euthanasia to be unequivocally forbidden and a grave sin. However, regarding the passive form, he issues a ruling that treatment must continue until the physician has lost hope in the patient's survival. Once hopelessness is established, further treatment is deemed unnecessary, even if discontinuing treatment results in the patient's death (Vol. 3, pp. 305-309).

Artificial Fertilization

According to Qardawi, artificial insemination (the process of combining a man's sperm with a non-mahram woman's egg) is undoubtedly prohibited, as it fundamentally resembles adultery; both involve the mixing of lineages and the intrusion of outsiders into the family unit, which disrupts the system of inheritance and kinship (Vol. 1, p. 700). Furthermore, the implantation of embryos is also deemed forbidden due to its consequences. These consequences include: 1- The degradation of the significant concept of motherhood, as per verse 2 of Surah al-Mujadila, where a mother is defined as a woman who gives birth to a child; 2- The severing of the bond between mother and fetus, disrupting the emotions and feelings that arise from blood transfer, nourishment, and the pain and suffering of pregnancy, which are essential for granting custody of the child to the mother; 3- Additionally, the feelings, emotions, and relationship of the woman nurturing the fetus are overlooked; 4- Another consequence is that in the future, wealthy and attractive women may avoid motherhood and delegate child-rearing responsibilities (Vol. 1, pp. 700-708).

Alteration of the Baby's Gender

Regarding the selection of gender and gender reassignment for infants, Qardawi considers it contrary to religious teachings. This is because, firstly, according to the verses «ٱللَّهُ يَعلَمُ مَا تَحمِلُ كُلُّ أُنثَى و ما تَغِيضُ ٱلأَرحَامُ و ما تَزدَادُ» (Allah knows what every female carries and what the wombs decrease and what they increase) and «وَيَعلَمُ مَا فِي ٱلأَرحَامِ» (He knows what is in the wombs), the knowledge of wombs is solely with God, and humans do not have access to it. Secondly, changing one's gender is seen as an affront to divine will and a contradiction to divine wisdom, as stated in verse 49 of Surah ash-Shura (Vol. 1, p. 711).

Alteration of Temperament and Character Traits

The alteration of temperament and character due to changes in the chemical interactions of blood and glands is viewed by Qardawi as contradictory to religious understanding and teachings; this is because such changes disrupt the exceptional nature of humanity, which includes free will. It is precisely for the preservation of this human nature that intoxicants and narcotics are prohibited in Islam. Furthermore, verse 119 of Surah an-Nisa refers to the alteration of creation as the work of the followers of Satan (vol. 1, p. 713).

Political Rulings

Qardawi has addressed various topics within the realm of political jurisprudence, including the responsibilities of government, the rules governing interactions between Muslims and non-Muslim neighbors as well as non-Islamic governments, the ruling on political parties, the principle of tolerance, the regulations and stages of enjoining good and forbidding evil, the rulings concerning actions contrary to the four Sunni schools of thought, the legality of martyrdom operations, the necessity or lack thereof of adhering to councils, astronomical calculations for moon sighting, the regulations regarding the crowds during Hajj and the stoning of the Jamaraat, among other challenging issues discussed in his book 'Contemporary Fatwas' (Vol. 2, pp. 385, 517; Vol. 3, pp. 461 onwards; Vol. 4, pp. 320, 512, 575).

The Ruling on a peace agreement with Israel

Qardawi, representing the Society of the Muslim Brotherhood, believes that the struggle against Israel is a defensive war and that defending Palestine is an obligatory duty for every Muslim. This duty can be fulfilled at a minimum through boycotting Israel and providing financial support to the Palestinians (Vol. 4, pp. 516-518 and 530-534). He strongly opposes the notion of permitting peace regarding Palestine, arguing that any form of peace or compromise with Israel contradicts Islamic law and the Quran, as supported by the verse «فَلَا تَهِنُوا وَتَدْعُوا إِلَى السَّلْمِ...» (So do not weaken and call for peace...). He believes that peace in the Quran is conditional upon the enemy's inclination towards peace, as stated in «وَإِن جَنَحُوا لِلسَّلْمِ فَاجْنَحْ لَهَا» (And if they incline to peace, then incline to it) (Vol. 4, pp. 530-538 and 545).

Denunciation

Qardawi has explicitly opposed the denunciation of Muslims as declared by certain jihadist factions. He argues that, based on the lenient approach of Islam and the practices of the Prophet, who engaged cooperatively with those who profess the phrase «لا اله الا الله» (There is no god but Allah), he does not consider the denunciation of such individuals permissible. (Vol. 1, pp. 180-182) Nevertheless, in a contradictory statement, he labels many Islamic sects that are considered people of the word as infidels. He categorically identifies sects such as the Druze, Alawites, Ismailis, and others with an esoteric focus, alongside communists, Baha'is, and secular politicians affiliated with secular parties, as outright infidels. (Vol. 1, p. 175) However, he distinguishes between the ruling of disbelief for a particular sect and the denunciation of individuals from that sect, asserting that caution should be exercised in the matter of denunciating individuals. (Vol. 1, p. 176)

Economic Rulings

Bank Interests (usury)

Qardawi considers bank interest to be forbidden and does not recognize individuals as its rightful owners. He believes that anyone who has received bank interest should repent, and this repentance involves giving the received interest to the poor (Vol. 2, p. 49). Nevertheless, he permits employment in banks to prevent non-believers from occupying these positions and acknowledges that many lawful activities occur within banks (Vol. 2, p. 55). He also applies the concept of usurious transactions to paper currency, as these notes represent stored value.

Zakat on Assets

Qardawi, like other Sunni scholars, considers trade assets subject to zakat in addition to the nine specified categories. These assets encompass all existing capital and receivables that are engaged in commerce for profit. He appears to regard the applicability of zakat to commercial capital as a fundamental principle of Sharia, without providing evidence or references to support this view. He calculates the threshold for these assets based on gold (Vol. 1, pp. 358-362). Regarding the distribution of zakat, contrary to most Islamic jurists who do not permit the transfer of funds to distant areas despite local need, Qardawi criticizes such rulings as rooted in bias and nationalism, advocating that wealthy Persian Gulf countries should send their zakat to the poor in other countries (Vol. 4, p. 306; Vol. 1, p. 367).