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School of Humanities and Social Sciences Tradition, Change and Social Reform in the Fatwas of the Imām Muhammad ‘Abduh A Thesis submitted to ARIC Arabic and Islamic Civilizations in partial fulfilment of the requirements for the degree of Master of Arts by Malak Tewfik Badrawi (under the supervision of Dr. Mohamed Serag) ACKNOWLEDGEMENTS I am very grateful to Dr. Mohamed Serag for his guidance. I would like to thank Mr. Yasser Mohammed Isma‘il for helping me with some of the Arabic terminology, and Dr. ‘Abd el-Wahid Nabawi and Mme Nadia Moustafa at Dar al-Watha’iq al- Qawmiya for their kindness. i TABLE OF CONTENTS Part I-The Background: 1-Thesis Abstract…………………………………………………………………..1 2- Introduction……………………………………………………………………..2 3-A Brief Biography of Muhammad ‘Abduh……...…………………………........9 4-‘Abduh’s Approach to the Sources of Islamic Jurisprudence……………..........13 Part II-The Fatwas 1-Official Queries………………………………………………………………….24 2-Faith and Ritual……...………………………………………………………..…48 3-Marriage and Divorce……………….…………………………………………... 54 4-Custody and Guardianship……………………………………………………….76 5-Financial Transactions…………………………………………………….……...92 6-Third Party Rights - Bequests, Family Endowments and Gifts………………….101 7-Interdiction - ḥajr…………………………………………………………………113 8-Penalties………………………………………………………………..…………115 9-Miscellaneous…………………………………………………………………….127 Conclusion…………………………………………………………………………..130 Bibliography………………...………………………………………………………137 Appendix ii PART I - THE BACKGROUND THESIS ABSTRACT INTRODUCTION A BRIEF BIOGRAPHY OF MUHAMMAD ‘ABDUH MUHAMMAD ‘ABDUH’S ANALYSIS OF THE QUR’ÃN iii THESIS ABSTRACT This thesis proposes to examine some of the fatwas, or legal opinions, issued by Muhammad ‘Abduh, and taken from the manuscript ledgers at Dār al-Iftā’ al- Miṣriyah. The fatwas involve official and semi-official issues, problems of personal status, financial matters, and relations with others. They were picked for their clarity, peculiarity, diversity, and will be examined for their relevance to the needs of various groups of society at that time and for the legal argumentation used. The fatwas will be examined to try to determine ‘Abduh’s legal approach, and his methodology when dealing with everyday issues. Fatwas are also useful tools to gauge different trends and tendencies in a society. The queries reflect some of the preoccupations of individuals. As for the responses, whether these are timely or untimely, or whether they are mundane or peculiar, they demonstrate the degree of empathy of the mufti with the public. Indeed, Muhammad ‘Abduh once observed that the ‘ulamā’- Muslim religious scholars- of his time, even if they were highly qualified, were totally isolated from the needs of the public, and that the only interaction the community had was with the storytellers that they called preachers at the Friday prayers.1 Such a statement implied that he considered that the function of the religious scholars was to serve society. 1 Muhammad ‘Imara, Al-A‘māl al-kāmila li al-Imām al-Shaykh Muḥammad ‘Abduh. Cairo: Dār al-Shurūq, 1993. Vol. 1, p. 859. 1 INTRODUCTION TRADITION, CHANGE AND SOCIAL REFORM IN THE FATWAS OF THE IMAM MUHAMMAD ‘ABDUH The Imam Muhammad ‘Abduh (1848-1905) is best remembered, from his writings, as a religious, social and political reformer. Yet he served Egypt in a legal capacity in the courts- as chief qādī – judge, and then as Grand Mufti of Egypt- mufti al-diyār al- Miṣriya. He was also a jurist who had his own approach to solving social problems or issues. During his stint as mufti, - between 1899 and 1905,- ‘Abduh issued over 940 fatwas,2 or legal opinions, in response to queries that encompassed a wide range of topics. These included official questions on diverse issues, family or charitable endowments, rules of inheritance, marriages, divorces, applications of the death penalty, business transactions, guardianships, to name but a few. The majority of the fatwas (over 700) dealt with endowments, both family and charitable,3 as well as legacies. The queries came from different sectors of the Egyptian administration and from private individuals; some of them were from outside Egypt, from places as distant as the Transvaal and India. The questioners came from diverse backgrounds, and included Muslims, Christians, Jews, British businessmen, Greeks and Sudanese subjects. This thesis reviews over sixty-six of the legal opinions issued by ‘Abduh,4 and taken from the manuscript ledgers at Dār al-Iftā’ al-Miṣriyah. They are examined for their conceptual framework, to try to establish the principles that guided him when issuing his opinions. Each question is dealt with in accordance to its provenance, wording, the generality or specificity of the question, and the legality. The responses are examined for language, comprehensiveness or brevity, to try too determine 2 ‘Imara considered there were over 946 fatwas. His estimate is probably accurate since he is thorough. ‘Imara, Volume 2, p. 486. Counting the fatwas is a problem, as various pages from the ledgers available at Dār al-Wathā’iq al-Miṣriya are missing. For example, in the first ledger, No. 00002, the fatwas are numbered, but whoever numbered them eventually realised that there was a miscalculation, and altered the amount by subtracting 100 from the total. 3 Most of such family endowments were a means to preserve property within a family and to prevent it from being partitioned until it virtually disappeared. 4 Some queries mentioned here consist of more than one question. For example, the so called “Transvaal fatwa” is a response to three questions. 2 whether or how the mufti justified his response, and the sources he used to support his argument.5 The analysis tries to decide whether ‘Abduh was in touch with the needs of his times and public, and the legal tools he relied upon to issue his opinions. This was because as a Muslim religious scholar, he was required to abide by the main sources of Islamic jurisprudence - the uṣūl al-fiqh,- namely the Qur’ān, the Sunna – including the actions and statements of the Prophet, the ijmā‘ or consensus of the community, and qiyās, or analogy, in order to derive, or extrapolate rulings. The fatwas he gave involved official and semi-official issues, problems of personal status, financial matters, third-party rights, and relations with others. Those selected here were picked for their clarity, peculiarity, and diversity. They are looked at for their relevance to the needs of various groups of society at that time and for the legal argumentation he used. Fatwas are useful tools to gauge different trends and tendencies in a society. The queries reflect the preoccupations of individuals, and the responses, whether timely or untimely, mundane or peculiar, demonstrate the degree of empathy of the mufti with the public. Indeed, ‘Abduh once observed that the ‘ulamā’- Muslim religious scholars- of his time, even if they were highly qualified, were totally isolated from the needs of the public, and that the only interaction the community had was with the storytellers that they called preachers at the Friday prayers.6 Such a statement implied that he considered that the function of the religious scholars was to serve society. Abduh, however, was also profoundly convinced of the obligation to follow the precepts of the Shar‘ - Islamic religious law, although his approach was distinctly more pragmatic than most of his fellow religious scholars from the Azhar. This may be illustrated in the responses given to a query addressed indiscriminately to these ‘ulamā’ by an Indian Muslim, about a group in India claiming to be Sunni Muslim, and who maintained that they were following the Imams of the four legal schools. The group was striving to achieve accord among Muslims, calling upon rich and affluent people to take up the education of Muslim orphans, and spread Islam, so as to oppose the onslaught of the People of the Book and the gangs of idol worshippers. However, 5 The analysis will be modelled to a certain extent on Vardit Rispler-Chaim’s “Postmortem examinations in Egypt,” in Muhammad K. Masud, B. Messick, D. Powers (editors), Islamic Legal Interpretation Muftis and their Fatwas. London: Harvard University Press, 1996. pp. 278-285. 6 ‘Imara, Vol. 1, pp. 881-882. 3 in their attempt to support and protect the Muslim community and unite its strength, they were being assisted and supported by non-believers and innovators. The questioner wanted to know whether such assistance was permitted, whether similar situations had existed in the first three praiseworthy centuries after the advent of Islam, and what was to be the judgement given on anyone who attacked these Muslims and accused them of leading people astray?7 The Azhar Shaf‘i, Maliki, Hanbali and Hanafi jurists’ answers to each question were detailed and involved: they included references to the Qur’ān, the citation of several Prophetic Hadiths taken from various accepted sources, as well as rulings from their leading jurists, i.e. they did not depart from the prescribed method of giving a legal opinion. ‘Abduh responded with verses from the Qur’ān, accounts from the life of the Prophet and the early Muslims, and declarations from the jurists, - to substantiate that it was permitted to obtain the assistance of unbelievers and people of no virtue to accomplish what was beneficial and of use to Muslims, and that those who built upon this assistance - so as to unite the word of Muslims, educate their orphans and help these attain what was beneficial to them - were only doing good and following the precedent set by the Messenger of God and by his Companions.8 The difference here was that ‘Abduh derived his answer from accounts of the Prophet’s life and of the early Muslims as evidence, rather than through the citing of hadiths.9 Moreover, when using ijmā ‘ - consensus, which is one of the principle sources of the Shar‘, ‘Abduh referred to the consensus of the early Muslims, or to that of the jurists.