The Hukm of Female Genital Modification

FEMALE GENITAL MODIFICATION

                                              

INTRODUCTION

Allah SWT says in the Qur’an Al-Hakim:

81:8 And when the female (infant) buried alive shall be questioned.
9 For what sin she was killed? 

            In antiquity, many societies in the Mediterranean Basin practiced female infanticide.  Roman fathers placed little necklaces around the necks of baby girls and abandoned them on rubbish mounds.  If the child was fortunate, someone would come by and enslave the infant. Otherwise, she would just starve to death, surrounded by the remains of Rome’s abundant food supply. And those little necklaces they provided a link to the parentage of the child, in case the child made something of herself later in life and the parents decided they would like to reconnect.[1] How nice of them!

So, why do fathers abandon their baby girls on rubbish heaps?  Why do they bury them alive? Why do they become consumed with grief upon hearing of the birth of a daughter?  Besides the perhaps more obvious blow to ones macho image, many men also fear damage to their honor.  What if she goes off and has a relationship with some low ranking man?  What if she has a relationship before I can marry her off to some man from another tribe, thereby making important alliances?  What if she takes a younger lover after being married to this well-connected man? 

Controlling female sexuality is an obsession among some men.  In many societies around the world, the male elders consider having a daughter a burden and a danger to the honor of the family.  The Jewish scriptures state: "Your daughter is headstrong? Keep a sharp look-out that she does not make you the laughing stock of your enemies, the talk of the town, the object of common gossip, and put you to public shame" (Ecclesiasticus 42:11), "Keep a headstrong daughter under firm control, or she will abuse any indulgence she receives. Keep a strict watch on her shameless eye, do not be surprised if she disgraces you" (Ecclesiasticus 26:10-11). In Jahiliyyah, the Arabs also buried their daughters alive.

16:58-59 "When news is brought to one of them of the birth of a female child, his face darkens and he is filled with inward grief. With shame does he hide himself from his people because of the bad news he has had! Shall he retain her on contempt or bury her in the dust? Ah! what an evil they decide on?" 

In Christianity, women were considered by nature, evil.  After all, according the Christian Bible, Eve is the one who tempted Adam to sin.  Only Mary is considered chaste and pure among women.  Christians subscribed fully to the Biblical statement: " The birth of a daughter is a loss" (Ecclesiasticus 22:3). European fathers locked their daughters up in metal chastity belts and held onto the keys.  The poor girls were not even able to clean themselves properly after going to the bathroom inside these metal cages surrounding their genitals. And even earlier, the Egyptian Copts or Kibtis, the Pharaonic people, allowed the girls to keep clean, but, instead, surgically sewed their vaginas shut.

            Then Allah SWT sent revelation through His Prophet Muhammad SAW. He revealed the ayat quoted above, and upon their acceptance of Islam, our Sahabi took an oath, the Baiyya’:

Sahih al-Bukhari » Limits and Punishments set by Allah (Hudood)

Narrated Ubada bin As-Samit:

I gave the pledge of allegiance to the Prophet with a group of people, and he said, "I take your pledge that you will not worship anything besides Allah, will not steal, will not commit infanticide, will not slander others by forging false statements and spreading it, and will not disobey me in anything good. And whoever among you fulfill all these (obligations of the pledge), his reward is with Allah. And whoever commits any of the above crimes and receives his legal punishment in this world, that will be his expiation and purification. But if Allah screens his sin, it will be up to Allah, Who will either punish or forgive him according to His wish." Abu `Abdullah said: "If a thief repents after his hand has been cut off, then his witness will be accepted. Similarly, if any person upon whom any legal punishment has been inflicted, repents, his witness will be accepted."

حَدَّثَنَا عَبْدُ اللَّهِ بْنُ مُحَمَّدٍ الْجُعْفِيُّ، حَدَّثَنَا هِشَامُ بْنُ يُوسُفَ، أَخْبَرَنَا مَعْمَرٌ، عَنِ الزُّهْرِيِّ، عَنْ أَبِي إِدْرِيسَ، عَنْ عُبَادَةَ بْنِ الصَّامِتِ ـ رضى الله عنه ـ قَالَ بَايَعْتُ رَسُولَ اللَّهِ صلى الله عليه وسلم فِي رَهْطٍ، فَقَالَ ‏ "‏ أُبَايِعُكُمْ عَلَى أَنْ لاَ تُشْرِكُوا بِاللَّهِ شَيْئًا، وَلاَ تَسْرِقُوا، وَلاَ تَقْتُلُوا أَوْلاَدَكُمْ، وَلاَ تَأْتُوا بِبُهْتَانٍ تَفْتَرُونَهُ بَيْنَ أَيْدِيكُمْ وَأَرْجُلِكُمْ، وَلاَ تَعْصُونِي فِي مَعْرُوفٍ، فَمَنْ وَفَى مِنْكُمْ فَأَجْرُهُ عَلَى اللَّهِ، وَمَنْ أَصَابَ مِنْ ذَلِكَ شَيْئًا فَأُخِذَ بِهِ فِي الدُّنْيَا فَهْوَ كَفَّارَةٌ لَهُ وَطَهُورٌ، وَمَنْ سَتَرَهُ اللَّهُ فَذَلِكَ إِلَى اللَّهِ، إِنْ شَاءَ عَذَّبَهُ وَإِنْ شَاءَ غَفَرَ لَهُ ‏"‏‏.‏ قَالَ أَبُو عَبْدِ اللَّهِ إِذَا تَابَ السَّارِقُ بَعْدَ مَا قُطِعَ يَدُهُ، قُبِلَتْ شَهَادَتُهُ، وَكُلُّ مَحْدُودٍ كَذَلِكَ إِذَا تَابَ قُبِلَتْ شَهَادَتُهُ‏.‏

            It is rather telling that Allah SWT felt that female infanticide was so serious a crime that pledging to not commit this practice came third in the list of pledges constituting surrender to Allah in Islam; only second after agreeing to worship none other than Allah.

After the revelation of the Qur’an, our deen and our Shariah take precedence over any culturally devised solutions to the problem of family honor.  We must abide by the commands and prohibitions of the Qur’an and the Sunnah.  While Urf can be a source of fiqh, it is only so if the Qur’an and the Sunnah do not directly address that particular issue.  Urf is far down on the list of sources of fiqh.  No matter how attached we may become to cultural traditions, if they are proscribed by our Shariah, to continue to perform such acts is sinful. 

We are all aware of the poor image of Islam held by the predominant culture in the West.  Despite the treatment of women in the West until very recently, the Western media has focused on other cultures, including the cultures of countries where Islam is the dominant religion, and singled out practices that subjugate and demean women as being the norm in those countries, thereby proving the “superiority” of Western culture.  Painting the “other” as backward, filthy, sexually licentious, and morally depraved is an old tactic.  The Romans did it to Carthage, painting them as baby killers. Islamophobes paint our beloved Prophet SAW as a pedophile in their effort to criminalize Islam. 

Islamophobes have an agenda, a mission, to paint Islam as evil.  One way is to focus on the treatment of women.  Not all of the accusations are unfounded.  The fact that actual men have seldom followed the teachings of the Qur’an and Sunnah in regard to the treatment of women does not imply that Islam is misogynistic.  Far from it.  Islam gave women the right to contract and conduct business 1400 years before women gained that right in the West – in 1973.

On the other hand, the errors and failures revealed by history are no excuse for our present behavior.  As Muslims, living in the world we live in today, we cannot afford to be lackadaisical about our fiqh. You are an ambassador for Islam, as well as for your country and your family.  Many unseen eyes are watching you!!  They are judging every Muslim in the world by your behavior.  If a fellow Muslim is killed because someone got a poor impression of Islam and Muslims from your behavior, you are partially to blame.  Remember our fiqh is not just ibadaat (worship), it is also mu’amalaat (transactions). And if you are “non-practicing”, “secular” then fine, but make sure people know you are not a Muslim.  Islam is not an ethnicity; it is a religion, a way of life.  If you are not living it, then you are not a Muslim, you have a different identity. We have no right to judge Christianity by the behavior of “non-practicing” Christians or secular atheists, (although many of us do). Please be clear about your identity so people will not judge Muslims on the basis of your cultural or personal behavior. And, if your identity is as a Muslim, learn your deen and try your best to live it. Don’t just assume you know it because you grew up in a certain place or speak a certain language.  It is amazing that people are so obsessed with family or tribal honor, but care little for the honor of those who share their nation or their deen. 

With this in mind, we must examine an issue made large by the Islamophobic movement: female genital mutilation.  This practice, confined mostly to eight African states, has become a cause for condemning Islam as misogynistic and barbaric, even though many practitioners of female genital mutilation are not Muslim and many who perform it are women.  Many Muslim leaders including leading shuyuk have condemned it and have declared many of the forms of this practice to be haram.  However, in regard to one form of this practice, scholars, both ancient and modern, disagree.  Just the fatawa issued by the scholars of Egypt and Al-Azhar University alone reveal the extent of this iktilaaf. [2]

In this paper, we will examine the various forms of female genital modification in light of the Qur’an, the Sunnah, and the Maqaasid ash-Shariah.   

---

[1] See, Meet the Romans, presented by Mary Beard, TV program available on YouTube as of 7/16/2017. 

[2] Al-Azhar has issued several “modern” fatawa, beginning in 1951, either declaring the practice mukaramah (pleasing to Allah) or denouncing it.  More recently, Sh. Gad al-Haq Ali issued a fatwa that khifaadh is a part of the legal body of Islam and is mukaramah. Imam al-Qaradawi has also favored it and has commented that it protects a girl’s morality “especially these days.” On the other hand, in March 2005, Dr Ahmed Talib, Dean of the Faculty of Sharia at Al-Azhar University, stated: "All practices of female circumcision and mutilation are crimes and have no relationship with Islam. Whether it involves the removal of the skin or the cutting of the flesh of the female genital organs... it is not an obligation in Islam." Sh. Mohammad Salim al Awa also released a fatwa along the same lines.  Most recently, in 2007, Ali Gomaa, the Grand Mufti of Egypt issued a fatwa condemning it. These dualing fatawa reveal a political dimension behind the debate over the Islamic ruling on khifaadh.  The Ikhwan al-Muslimeen and its scholars favor and promote the practice, resisting attempts to criminalize female circumcision in Egypt.  Scholars with government ties or ties to rival parties have ruled against it, including Mohammad Salim al Awa, who ran for president in the 2012 Egyptian elections against Mohammad Mursi.

                                                                                                             

Defining the Practice in Question

            Female genital mutilation is not an Islamic term.  No ayat of the Qur’an or hadith mention this term. It is a modern term covering a range of practices. I have preferred to use the term “female genital modification” in an effort to de-emotionalize the discussion.  Mutilation implies harm, pain, evil. Mutilation is haram. Even if, in the end, we find the practice to be haram, we must use neutral terms in our initial discussion.  When one of the things we must determine as fuqaha is whether this practice is mutilation, we would be guilty of circular logic is we used the term “female genital mutilation” to refer to the practices in question.

First of all, most of the scholars agree that the original or natural hukm sharii of any act is mubah. [1]  There are five hukm sharii in Shariah; fard, mustahab or mandub, mubah, makruh, and haram.  Unless evidence exists of a specific hukm other than mubah, then the practice is mubah.  Second, many have claimed that no ayat of the Qur’an governs this practice.  In that case, then, we must look to the Sunnah and other sources of evidence, such as qiyas or other rational methods.  Otherwise, if there is no specific applicable nass can be found to bear upon the issue, then the practice would be mubah.  However, there is an ayat of the Qur’an addressing this practice. Allah SWT says:

4: 119  I will mislead them and I will create in them false desires;

I will order them to slit the ears of cattle and to alter the creation of Allah.

Whosoever forsakes Allah and takes Shaytan as his friend has surely suffered a manifest loss. 

Therefore, any alteration, mutilation, and/or permanent modification of the human body is haram.[2] This ayat has been utilized in fiqh to prohibit cosmetic surgery, and other alterations to the human body performed for the purpose of appearance, trend, and other whims and fancies.  The same ayat provides the dalil for forbidding tattoos.  Moreover, it is upon this ayat that scholars have prohibited autopsies and even organ donation. 

In order to understand the weight this ayat has in our fiqh, we must understand the law of evidence under Shariah.  Evidence is of several grades: qati (certain), dhanni (probable), daif (weak), and khati’ah (false). The ayat above is qati evidence, clearly making alteration of the body is haram without a permissible reason, medical necessity, or clear statement in another ayat providing either naskh or takhsis (abrogation or specification/exception), or a hadith providing takhsis. Since there are no ayat providing either naskh or takhsis, then we must seek authentic, mutawatir or sahih hadith that would clearly make female genital modification mubah or one of the other five hukm sharii.

But before we do, we must understand the practice we are seeking a ruling on.

            Female genital modification is a practice prevalent in eight countries, centered mostly in Africa.  Several forms of this practice exist at the present time. These include:

1. Nicking the clitoral hood.
2. Cutting off the clitoral hood.
3. Cutting off the clitoris in part or in entirety.
4. Cutting off the labia mejora.
5. Cutting off the labia menora.
6. Incising the labia and sewing the labia together, leaving only a small hole for urine and blood to pass.
7. Cutting off the clitoris and labia mejora and labia menora.

The practice has a long history.  The first recording of this practice is in the records of Pharaonic Egypt during the time of Seti I and Ramses II.  In Egypt, the midwives performed a procedure cutting off the clitoris, labia mejora and labia menorah, and sewing the incised labia together, leaving only a small hole for the passage of urine and blood.  The practice spread to Sudan when Egypt conquered Nubia and proliferated up and down the Nile River basin when the Nubian kings conquered Egypt. [3]

When Christianity entered Ethiopia in the 1st century AD, the Church encountered the practice.  Christianity opposed the practice vigorously.  Christianity has long opposed circumcision for men; the idea of female circumcision was shocking for the Church.  Several prominent Christian scholars wrote bulls (fatawa) prohibiting the practice.  However, today, female genital modification remains prevalent in the Ethiopian Coptic Church.  In Africa, animists and pagan adherents, such as the Nandi, have long practiced this custom.  And in Ethiopia, the Ethiopian Jews also perform female circumcision, but do not perform it for men, despite clear Jewish law.[4] 

Why have previous peoples performed this practice?  As the presence of this practice among the Ethiopian Jews, who do not circumcise men, reveals, the practice centers on male concerns about women’s sexuality and the potential impact on family honor. What if my daughter has sex before marriage? What if she cheats on a husband that I married her to in order to cement family and tribal ties?  She would dishonor our family, our tribe…  So I need to find a way to restrain her.  As we noted in the Introduction, some fathers were so traumatized by the birth of a baby girl that they killed them rather than face potential shame. 

Some fathers could not kill the child, after all she could be married to another tribe to improve his business.  So they cut her genitals to remove her libido.  And to make everything more controlled, why not sew her vagina shut.  But how is her husband suppose to have sex with her, and if he manages to do so, how is she to have a baby?  How does this procedure protect honor and lineage if she cannot have a child? 

Have these concerns and the traditional nature of the practice influenced the people of the eight countries where this practice is prevalent to continue the practice after conversion to Islam?  There is no doubt that it has pre-Islamic roots.  So do many Islamic practices, including Hajj.  However, one must ask if this is a case of an existing practice adopted and approved of by the Qur’an and Sunnah or a case of an existing practice Islamically justified so people can continue to follow local traditions? How far are we willing to go to defend urf? 

Before we explore proffered evidence that female genital modification has been adopted and approved of by the Qur’an and Sunnah, let us set some preliminary terminology.  We shall define these terms in more detail later, but for now, in the interest of clarity, we will refer to male circumcision as Khitaan and female circumcision as Khifaadh.  While khitaan has been used to refer to both male and female circumcision, here we will restrict the usage so as to avoid confusion. Male circumcision or khitaan refers to the cutting and removal of the foreskin of the penis, a flap of skin surrounding the penis, attached to the shaft just below the glans, which can be moved up or down, exposing the glans.  Female circumcision or khifaadh, according to its proponents, then would be analogous to male circumcision and refers to the cutting and removal of the clitoral hood or prepuce, a flap of skin surrounding the clitoris, attached just below the clitoris and capable of being moved up and down to a slight degree. Movement of the prepuce is not necessary for sexual stimulation or intercourse.  The WTO refers to this practice as Type Ia female genital mutilation.[5]

As we have noted above, besides removal of the foreskin or precape, there are other forms of female genital modification.  Because these practices have been labeled “khitaan” or “khifaadh” by practitioners, it is imperative we examine each one and determine, not only the nature of these practices, but the hukm. We begin here by characterizing each practice.  We will examine the hukm later if Allah SWT gives us life.

            The first practice we will examine is nicking the clitoral hood. This practice involves nicking the prepuce with a cutting instrument just enough to cause bleeding and be superficially considered “cutting.” This practice has been suggested by Western medical practitioners as a way to respect cultural traditions without incurring the great harm women can experience with more evasive procedures. [6]

           

            The second practice is clitoridectomy.  The WHO defines this practice as partial or total removal of the clitoris and the clitoral hood and classifies it as Type I female genital mutilation. Removal of just the clitoral hood, which some consider to be female circumcision or khifaadh, is referred to as partial clitoridectomy, or Type 1a female genital mutilation.  Total removal of the clitoris and the prepuce is referred to a total clitoridectomy and constitutes the cutting and removal of the entire clitoris and its prepuce.  The WHO classifies this practice as Type Ib female genital mutilation.[7]

            The third practice is excision: cutting and removing the labia minora or inner vaginal “lips,” and/or cutting and removing the labia majora or outer vaginal “lips.” The WHO refers to this as Type II female genital mutilation.  The WHO recognizes three forms; Type IIa – removal of the labia minora; Type IIb – partial or total removal of the clitoris and labia minora; and Type IIc – partial or total removal of the clitoris, labia minora and labia majora.[8]

            The fourth practice is infibulation or the partial or total sealing off of the vaginal orifice. The WHO refers to this practice as Type III female genital mutilation.  Type IIIa involves excision, removal and apposition or suturing of the labia minora. Type IIIb involves excision, removal and apposition or suturing of the labia majora. Total infibulation leaves no opening for sexual relations and only a small hole for urine and blood to pass. In order for the woman to have sexual relations after marriage or to give birth to children, she will have to undergo further difibulation surgery.  Some women are then subjected to re-infibulation after child birth.[9] 

Now that we have defined the practices in question, we can move on to examine the Divine Sources of our deen to determine the hukm of each practice under Shariah law.

Evidence From Divine Sources

1. The Hadith of Abu Hurairah on the Fitrah

            All of the scholars agree that the Qur’an does not specifically address circumcision, either for males or females.  All evidence of the hukm sharii of circumcision comes from the Sunnah and is reported in the hadith literature.

            Proponents of khifaadh put forward several hadith in support of their contention that khifaadh is an Islamic practice.  They begin with hadith regarding the relationship of khataan to the fitrah, and arguing that the commands and prohibitions of the Shariah apply equally to men and women unless specified otherwise. This is based on the following Qur’anic verses:

4: 124. If any do deeds Of righteousness,
Be they male or female—And have faith,
They will enter Heaven, And not the least injustice
Will be done to them.

33: 35. For Muslim men and women,—For believing men and women,
For devout men and women, For true men and women,
For men and women who are Patient and constant, for men
And women who humble themselves For men and women who give
In charity, for men and women Who fast (and deny themselves),
For men and women who Guard their chastity, and
For men and women who Engage much in God's praise,—
For them has God prepared Forgiveness and great reward.

According to the Musnad Ahmad, Umm Salamah RAA asked the Prophet SAW “I said: O Prophet of Allaah  how is it that we are not mentioned in the Quran in the same manner as the men are mentioned?” She said: “Then, one day, I suddenly heard the call of the Prophet  on the pulpit while I was combing my hair, and I went near the door [of the room trying to hear what he says] and I listened directly to the voice coming from the direction of the Jareed (i.e. the part of the mosque which was thatched with the dried palm fronds, where the Prophet  used to give Khutbah) and I heard him saying: ''Allaah Says (what means): {Indeed, the Muslim men and Muslim women, the believing men and believing women, the obedient men and obedient women, the truthful men and truthful women, the patient men and patient women, the humble men and humble women, the charitable men and charitable women, the fasting men and fasting women, the men who guard their private parts and the women who do so, and the men who remember Allaah often and the women who do so - for them Allaah has prepared forgiveness and a great reward.}[Quran 33:35][10]

a.       Khitaan and its Hukm

            Given this fundamental principle that the Shariah applies equally to all Muslims, men and women, we must begin with an examination of the evidence from within the hadith literature for khitaan, male circumcision, and its hukm. The hadith most used to support the hukm of khitaan in Islam is a statement by Abu Hurairah RA.

Sahih al-Bukhari » Dress

Narrated Abu Huraira:

Allah's Apostle said, "Five practices are characteristics of the Fitra: circumcision, shaving the pubic region, plucking the armpit hairs, clipping the nails and cutting the moustaches short."

حَدَّثَنَا عَلِيٌّ، حَدَّثَنَا سُفْيَانُ، قَالَ الزُّهْرِيُّ حَدَّثَنَا عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ، رِوَايَةً ‏ "‏ الْفِطْرَةُ خَمْسٌ ـ أَوْ خَمْسٌ مِنَ الْفِطْرَةِ ـ الْخِتَانُ، وَالاِسْتِحْدَادُ، وَنَتْفُ الإِبْطِ، وَتَقْلِيمُ الأَظْفَارِ، وَقَصُّ الشَّارِبِ ‏"‏‏.‏ 

Narrated Abu Huraira:

I heard the Prophet saying. "Five practices are characteristics of the Fitra: circumcision, shaving the pubic hair, cutting the moustaches short, clipping the nails, and depilating the hair of the armpits."

حَدَّثَنَا أَحْمَدُ بْنُ يُونُسَ، حَدَّثَنَا إِبْرَاهِيمُ بْنُ سَعْدٍ، حَدَّثَنَا ابْنُ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ ـ رضى الله عنه ـ سَمِعْتُ النَّبِيَّ صلى الله عليه وسلم يَقُولُ ‏ "‏ الْفِطْرَةُ خَمْسٌ الْخِتَانُ، وَالاِسْتِحْدَادُ، وَقَصُّ الشَّارِبِ، وَتَقْلِيمُ الأَظْفَارِ، وَنَتْفُ الآبَاطِ ‏"‏‏

Sahih al-Bukhari » Asking Permission

Narrated Abu Huraira:

The Prophet said "Five things are in accordance with Al Fitra (i.e. the tradition of prophets): to be circumcised, to shave the pelvic region, to pull out the hair of the armpits, to cut short the moustaches, and to clip the nails.'

حَدَّثَنَا يَحْيَى بْنُ قُزَعَةَ، حَدَّثَنَا إِبْرَاهِيمُ بْنُ سَعْدٍ، عَنِ ابْنِ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ ـ رضى الله عنه ـ عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ ‏ "‏ الْفِطْرَةُ خَمْسٌ الْخِتَانُ، وَالاِسْتِحْدَادُ، وَنَتْفُ الإِبْطِ، وَقَصُّ الشَّارِبِ، وَتَقْلِيمُ الأَظْفَارِ ‏"‏‏.‏

Sahih Muslim » The Book of Purification (Kitab Al-Taharah)

Abu Huraira reported:

Five are the acts of fitra: circumcision, removing the pubes, clipping the moustache, cutting the nails, plucking the hair under the armpits.

حَدَّثَنِي أَبُو الطَّاهِرِ، وَحَرْمَلَةُ بْنُ يَحْيَى، قَالاَ أَخْبَرَنَا ابْنُ وَهْبٍ، أَخْبَرَنِي يُونُسُ، عَنِ ابْنِ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ، عَنْ رَسُولِ اللَّهِ صلى الله عليه وسلم أَنَّهُ قَالَ ‏ "‏ الْفِطْرَةُ خَمْسٌ الاِخْتِتَانُ وَالاِسْتِحْدَادُ وَقَصُّ الشَّارِبِ وَتَقْلِيمُ الأَظْفَارِ وَنَتْفُ الإِبْطِ ‏"‏

Abu Huraira reported:

Five are the acts quite akin to the Fitra, or five are the acts of Fitra: circumcision, shaving the pubes, cutting the nails, plucking the hair under the armpits and clipping the moustache.

حَدَّثَنَا أَبُو بَكْرِ بْنُ أَبِي شَيْبَةَ، وَعَمْرٌو النَّاقِدُ، وَزُهَيْرُ بْنُ حَرْبٍ، جَمِيعًا عَنْ سُفْيَانَ، - قَالَ أَبُو بَكْرٍ حَدَّثَنَا ابْنُ عُيَيْنَةَ، - عَنِ الزُّهْرِيِّ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ، عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ ‏ "‏ الْفِطْرَةُ خَمْسٌ - أَوْ خَمْسٌ مِنَ الْفِطْرَةِ - الْخِتَانُ وَالاِسْتِحْدَادُ وَتَقْلِيمُ الأَظْفَارِ وَنَتْفُ الإِبْطِ وَقَصُّ الشَّارِبِ ‏"‏ ‏.

Jami` at-Tirmidhi » Chapters on Manners

Narrated Abu Hurairah:

that the Messenger of Allah (SAW) said: "Five are from the Fitrah: Cutting the pubic hair, circumcision, paring the mustache, plucking the under arm hair and trimming the fingernails."

حَدَّثَنَا الْحَسَنُ بْنُ عَلِيٍّ الْحُلْوَانِيُّ الْخَلاَّلُ، وَغَيْرُ، وَاحِدٍ، قَالُوا حَدَّثَنَا عَبْدُ الرَّزَّاقِ، أَخْبَرَنَا مَعْمَرٌ، عَنِ الزُّهْرِيِّ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ، قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ "‏ خَمْسٌ مِنَ الْفِطْرَةِ الاِسْتِحْدَادُ وَالْخِتَانُ وَقَصُّ الشَّارِبِ وَنَتْفُ الإِبْطِ وَتَقْلِيمُ الأَظْفَارِ ‏"‏ ‏.‏ قَالَ أَبُو عِيسَى هَذَا حَدِيثٌ حَسَنٌ صَحِيحٌ ‏.‏

Sunan an-Nasa'i » Book of Adornment

It was narrated that Abu Hurairah said:

"Five things are of the Fitrah: Clipping the nails, trimming the mustache, plucking the armpit hairs, shaving the pubes, and circumcision." (Sahih Mawquf)

أَخْبَرَنَا قُتَيْبَةُ، عَنْ مَالِكٍ، عَنِ الْمَقْبُرِيِّ، عَنْ أَبِي هُرَيْرَةَ، قَالَ خَمْسٌ مِنَ الْفِطْرَةِ تَقْلِيمُ الأَظْفَارِ وَقَصُّ الشَّارِبِ وَنَتْفُ الإِبْطِ وَحَلْقُ الْعَانَةِ وَالْخِتَانُ ‏.

Sunan an-Nasa'i » Book of Adornment

It was narrated that Talq bin Habib said:

"Ten things are from the Sunnah: Using the Siwak, trimming the mustache, rinsing the mouth, rinsing the nose, letting the beard grow, trimming the nails, plucking the armpit hairs, circumcision, shaving the pubes and washing one's backside."

أَخْبَرَنَا قُتَيْبَةُ، قَالَ حَدَّثَنَا أَبُو عَوَانَةَ، عَنْ أَبِي بِشْرٍ، عَنْ طَلْقِ بْنِ حَبِيبٍ، قَالَ عَشْرَةٌ مِنَ السُّنَّةِ السِّوَاكُ وَقَصُّ الشَّارِبِ وَالْمَضْمَضَةُ وَالاِسْتِنْشَاقُ وَتَوْفِيرُ اللِّحْيَةِ وَقَصُّ الأَظْفَارِ وَنَتْفُ الإِبْطِ وَالْخِتَانُ وَحَلْقُ الْعَانَةِ وَغَسْلُ الدُّبُرِ ‏.‏ قَالَ أَبُو عَبْدِ الرَّحْمَنِ وَحَدِيثُ سُلَيْمَانَ التَّيْمِيِّ وَجَعْفَرِ بْنِ إِيَاسٍ أَشْبَهُ بِالصَّوَابِ مِنْ حَدِيثِ مُصْعَبِ بْنِ شَيْبَةَ وَمُصْعَبٌ مُنْكَرُ الْحَدِيثِ ‏.‏ 

Sunan Ibn Majah » The Book of Purification and its Sunnah

It was narrated from 'Ammar bin Yasir that:

The Messenger of Allah said: "Part of the Fitrah is rinsing out the mouth, rinsing out the nostrils, using the tooth stick, trimming the mustache, clipping the nails, plucking the armpit hairs, shaving the pubic hairs, washing the joints, washing the private parts and circumcision.'" (Da'if) Another chain with similar wording.

حَدَّثَنَا سَهْلُ بْنُ أَبِي سَهْلٍ، وَمُحَمَّدُ بْنُ يَحْيَى، قَالاَ حَدَّثَنَا أَبُو الْوَلِيدِ، حَدَّثَنَا حَمَّادٌ، عَنْ عَلِيِّ بْنِ زَيْدٍ، عَنْ سَلَمَةَ بْنِ مُحَمَّدِ بْنِ عَمَّارِ بْنِ يَاسِرٍ، عَنْ عَمَّارِ بْنِ يَاسِرٍ، أَنَّ رَسُولَ اللَّهِ ـ صلى الله عليه وسلم ـ قَالَ ‏ "‏ مِنَ الْفِطْرَةِ الْمَضْمَضَةُ وَالاِسْتِنْشَاقُ وَالسِّوَاكُ وَقَصُّ الشَّارِبِ وَتَقْلِيمُ الأَظْفَارِ وَنَتْفُ الإِبِطِ وَالاِسْتِحْدَادُ وَغَسْلُ الْبَرَاجِمِ وَالاِنْتِضَاحُ وَالاِخْتِتَانُ ‏"‏ ‏.‏ حَدَّثَنَا جَعْفَرُ بْنُ أَحْمَدَ بْنِ عُمَرَ، حَدَّثَنَا عَفَّانُ بْنُ مُسْلِمٍ، حَدَّثَنَا حَمَّادُ بْنُ سَلَمَةَ، عَنْ عَلِيِّ بْنِ زَيْدٍ، مِثْلَهُ

Sunan Abi Dawud » Purification (Kitab Al-Taharah)

Narrated Ammar b. Yasir:

The Apostle of Allaah ( sal Allaahu alayhi wa sallam ) said : The rinsing of mouth and snuffing up water in the nose are acts that bear the characteristics of fitrah (nature). He then narrated a similar tradition (as reported by Aishah), but he did not mention the words "letting the beard grow". He added the words "circumcision" and "sprinkling water on the private part of the body". He did not mention the words "cleansing oneself after easing". Abu Dawud said : A similar tradition has been reported on the authority of Ibn 'Abbas. He mentioned only five sunnahs all relating to the head, one of them being parting of the hair; it did not include wearing the beard. Abu Dawud said: The tradition as reported by Hammad has also been transmitted by Talq b. Habib , Mujahid, and Bakr b. 'Abd Allaah b. al-Muzani as their own statement ( not as a tradition from the Prophet, sal Allaahu alayhi wa sallam ).They did not mention the words "letting the beard grow". The version transmitted by Muhammad b. Abd Allaah b. Abi Maryam, Abu Salamah, and Abu Hurairah from the Prophet ( sal Allaahu alayhi wa sallam ) mentions the words "letting the beard grow". A similar tradition has been reported by Ibrahim al-Nakha'i. He mentioned the words "wearing the beard and circumcision."

حَدَّثَنَا مُوسَى بْنُ إِسْمَاعِيلَ، وَدَاوُدُ بْنُ شَبِيبٍ، قَالاَ حَدَّثَنَا حَمَّادٌ، عَنْ عَلِيِّ بْنِ زَيْدٍ، عَنْ سَلَمَةَ بْنِ مُحَمَّدِ بْنِ عَمَّارِ بْنِ يَاسِرٍ، قَالَ مُوسَى عَنْ أَبِيهِ، - وَقَالَ دَاوُدُ عَنْ عَمَّارِ بْنِ يَاسِرٍ، - أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ ‏"‏ إِنَّ مِنَ الْفِطْرَةِ الْمَضْمَضَةَ وَالاِسْتِنْشَاقَ ‏"‏ ‏.‏ فَذَكَرَ نَحْوَهُ وَلَمْ يَذْكُرْ إِعْفَاءَ اللِّحْيَةِ وَزَادَ ‏"‏ وَالْخِتَانَ ‏"‏ ‏.‏ قَالَ ‏"‏ وَالاِنْتِضَاحَ ‏"‏ ‏.‏ وَلَمْ يَذْكُرِ ‏"‏ انْتِقَاصَ الْمَاءِ ‏"‏ ‏.‏ يَعْنِي الاِسْتِنْجَاءَ ‏.‏ قَالَ أَبُو دَاوُدَ وَرُوِيَ نَحْوُهُ عَنِ ابْنِ عَبَّاسٍ وَقَالَ خَمْسٌ كُلُّهَا فِي الرَّأْسِ وَذَكَرَ فِيهَا الْفَرْقَ وَلَمْ يَذْكُرْ إِعْفَاءَ اللِّحْيَةِ ‏.‏ قَالَ أَبُو دَاوُدَ وَرُوِيَ نَحْوُ حَدِيثِ حَمَّادٍ عَنْ طَلْقِ بْنِ حَبِيبٍ وَمُجَاهِدٍ وَعَنْ بَكْرِ بْنِ عَبْدِ اللَّهِ الْمُزَنِيِّ قَوْلُهُمْ وَلَمْ يَذْكُرُوا إِعْفَاءَ اللِّحْيَةِ ‏.‏ وَفِي حَدِيثِ مُحَمَّدِ بْنِ عَبْدِ اللَّهِ بْنِ أَبِي مَرْيَمَ عَنْ أَبِي سَلَمَةَ عَنْ أَبِي هُرَيْرَةَ عَنِ النَّبِيِّ صلى الله عليه وسلم فِيهِ وَإِعْفَاءُ اللِّحْيَةِ وَعَنْ إِبْرَاهِيمَ النَّخَعِيِّ نَحْوُهُ وَذَكَرَ إِعْفَاءَ اللِّحْيَةِ وَالْخِتَانَ ‏.‏ 

In examining this line of ahadith, we must note that there are variants of the hadith from Abu Hurairah that do not mention khitaan. For example:

Sahih Bukhaari, Book of Dress

Narrated Ibn Umar: Allah’s Messenger (SAW) said, “To shave the pubic hair, the cut the nails, to clip the moustaches short, are characteristics of the fitrah.” 

Moreover, the last hadith narrated by Ammar ibn Yassir, shows the degree of variability in similar hadith on the fitrah.  However, given the abundance of ahadith referring to khitaan, [11] there is no doubt that khitaan is an Islamic practice.  Moreover, the hadith evidence points to a hukm sharii of at least mustahabb or mandub, therefore, not just permissible, but preferred and rewardable.  Of the traditional madhdhaab, the Hanafi and Maliki schools consider khitaan to be Sunnah Mu’akkadah, while the Shafi and Hanbali schools consider it fard. 

Certainly, under Jewish law, a prior revelation, circumcision of men is obligatory.  In Usuul Al Fiqh, prior law can be persuasive evidence, provided it is confirmed by either the Qur’an or the Sunnah.  Several versions of a hadith narrated by Abu Hurairah recount:

Sahih al-Bukhari » Asking Permission

Narrated Abu Huraira:

Allah's Apostle said "The Prophet Abraham circumcised himself after he had passed the age of eighty years and he circumcised himself with an adze."

حَدَّثَنَا أَبُو الْيَمَانِ، أَخْبَرَنَا شُعَيْبُ بْنُ أَبِي حَمْزَةَ، حَدَّثَنَا أَبُو الزِّنَادِ، عَنِ الأَعْرَجِ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ ‏"‏ اخْتَتَنَ إِبْرَاهِيمُ بَعْدَ ثَمَانِينَ سَنَةً، وَاخْتَتَنَ بِالْقَدُومِ ‏"‏‏.‏ مُخَفَّفَةً‏.‏ حَدَّثَنَا قُتَيْبَةُ حَدَّثَنَا الْمُغِيرَةُ عَنْ أَبِي الزِّنَادِ وَقَالَ ‏"‏بِالْقَدُّومِ"‏‏ وَهُوَ مَوْضِعٌ مُشَدَّدٌ

Therefore, an argument could be made that in regards to khitaan for men, the hukm under Jewish Halaqa law remains and that khitaan is fard. 

However, hadith conflict regarding whether the Prophet SAW required new converts to circumcise. 

Sunan Abi Dawud » Purification (Kitab Al-Taharah)

'Uthaim b. Kulaib reported from his father (Kuthair) on the authority of his grandfather (Kulaib) that he came to the Prophet (saws):

I have embraced Islam. The Prophet (saws) said to him: Remove from yourself the hair that grew during of unbelief, saying "shave them". He further says that another person (other than the grandfather of 'Uthaim) reported to him that the Prophet (saws) said to another person who accompanied him: Remove from yourself the hair that grew during the period of unbelief and get yourself circumcised.

حَدَّثَنَا مَخْلَدُ بْنُ خَالِدٍ، حَدَّثَنَا عَبْدُ الرَّزَّاقِ، أَخْبَرَنَا ابْنُ جُرَيْجٍ، قَالَ أُخْبِرْتُ عَنْ عُثَيْمِ بْنِ كُلَيْبٍ، عَنْ أَبِيهِ، عَنْ جَدِّهِ، أَنَّهُ جَاءَ إِلَى النَّبِيِّ صلى الله عليه وسلم فَقَالَ قَدْ أَسْلَمْتُ ‏.‏ فَقَالَ لَهُ النَّبِيُّ صلى الله عليه وسلم ‏"‏ أَلْقِ عَنْكَ شَعْرَ الْكُفْرِ ‏"‏ ‏.‏ يَقُولُ احْلِقْ ‏.‏ قَالَ وَأَخْبَرَنِي آخَرُ أَنَّ النَّبِيَّ صلى الله عليه وسلم قَالَ لآخَرَ مَعَهُ ‏"‏ أَلْقِ عَنْكَ شَعْرَ الْكُفْرِ وَاخْتَتِنْ ‏"‏ ‏.‏ 

Al-Adab Al-Mufrad » Circumcision

It is reported that al-Hasan said, "Are you not astonished by this man? (i.e. Malik ibn al-Mundhir) He went to some of the old people of Kaskar who had become Muslim and examined them and then commanded that they be circumcised although it was winter. I heard that some of them died. Greeks and Abyssinians became Muslim with the Messenger of Allah, may Allah bless him and grant him peace, and they were not examined at all."

حَدَّثَنَا مُحَمَّدٌ، قَالَ‏:‏ أَخْبَرَنَا عَبْدُ اللهِ، قَالَ‏:‏ أَخْبَرَنَا مُعْتَمِرٌ قَالَ‏:‏ حَدَّثَنِي سَالِمُ بْنُ أَبِي الذَّيَّالِ، وَكَانَ صَاحِبَ حَدِيثٍ، قَالَ‏:‏ سَمِعْتُ الْحَسَنَ يَقُولُ‏:‏ أَمَا تَعْجَبُونَ لِهَذَا‏؟‏ يَعْنِي‏:‏ مَالِكَ بْنَ الْمُنْذِرِ عَمَدَ إِلَى شُيُوخٍ مِنْ أَهْلِ كَسْكَرَ أَسْلَمُوا، فَفَتَّشَهُمْ فَأَمَرَ بِهِمْ فَخُتِنُوا، وَهَذَا الشِّتَاءُ، فَبَلَغَنِي أَنَّ بَعْضَهُمْ مَاتَ، وَلَقَدْ أَسْلَمَ مَعَ رَسُولِ اللهِ صلى الله عليه وسلم الرُّومِيُّ وَالْحَبَشِيُّ فَمَا فُتِّشُوا عَنْ شَيْءٍ‏.

Alone, this evidence is not dispositive.  Neither of these accounts is found in Sahih collections.  The first one narrated from the grandfather of “Uthaim ibn Kulaib has a hidden defect.  The part mentioning khitaan is related by an unknown individual, rendering it broken and unusable for fiqh under our minhaj.  The second one narrated by al-Hasan, a Sahaba, is stronger, but Imam Bukhaari did not include it in his Sahih, so we can assume he felt it has some defect.

The opinions of Abu Hanifa and Imam Malik seem to conform to a view that the Prophet SAW used the term “fitrah to indicate the Sunnah. Certainly, the hadith of Talq ibn Habib supports this view. 

So, what is the hukm sharii of khitaan, male circumcision?  Certainly, the hadith of Abu Hurairah does not support a hukm beyond mustahabb or mandub.  Referring to the five practices as “fitrah” does not mean they are fard.  There is no evidence that refraining from shaving the arm pits, cutting the nails, shaving the public hair and trimming the moustache is sinful and would incur punishment.

It should also be noted that khitaan was a common practice among the Arabs at the time of Prophet SAW.  In rather lengthy hadith in Sahih Bukhaari’s Book of Revelation narrated by Abdullah Ibn Abbas, a sub-narrator notes that Ibn An-Natur, the governor of Ilya (Jerusalem) narrated that Heraclius, the Byzantine Emperor, asked about a dream he had that the leader of those who circumcise would become a conqueror.  He was told that the Jews circumcised.  He then asked about the Arabs, and was told that they also practiced circumcision. While this hadith is weak at best, being related by a sub-narrator, without proper isnad, it does show some indication that male circumcision was an existing pre-Islamic practice, potentially carried over from Arab descent from the son of Ibrahim (AS), Ismail (AS).  And, it is known that the children of Muslims were circumcised.

Sahih al-Bukhari » Asking Permission

Narrated Said bin Jubair:

Ibn 'Abbas was asked, "How old were you when the Prophet died?" He replied. "At that time I had been circumcised." At that time, people did not circumcise the boys till they attained the age of puberty. Sa'id bin Jubair said, "Ibn 'Abbas said, 'When the Prophet died, I had already been circumcised. "

حَدَّثَنَا مُحَمَّدُ بْنُ عَبْدِ الرَّحِيمِ، أَخْبَرَنَا عَبَّادُ بْنُ مُوسَى، حَدَّثَنَا إِسْمَاعِيلُ بْنُ جَعْفَرٍ، عَنْ إِسْرَائِيلَ، عَنْ أَبِي إِسْحَاقَ، عَنْ سَعِيدِ بْنِ جُبَيْرٍ، قَالَ سُئِلَ ابْنُ عَبَّاسٍ مِثْلُ مَنْ أَنْتَ حِينَ قُبِضَ النَّبِيُّ صلى الله عليه وسلم قَالَ أَنَا يَوْمَئِذٍ مَخْتُونٌ‏.‏ قَالَ وَكَانُوا لاَ يَخْتِنُونَ الرَّجُلَ حَتَّى يُدْرِكَ‏.‏ 

Al-Adab Al-Mufrad » Circumcision

Salim said, "Ibn 'Umar, Nu'aym and I were circumcised and they sacrificed a ram on our behalf. I think that we were more happy about it than the other children since a ram had been sacrificed on our behalf."

These two hadith seem to indicate a continuation of the pre-Islamic Arab practice, where the boy was circumcised around the age of puberty.  Only weak hadith indicate that Al-Hasan and Al-Hussein were circumcised on the 7^th day after birth, as is the custom among many Muslims today.  So, we could suppose that the early Muslim never questioned whether or not it should be performed.  It was more or less automatic in the culture.

Therefore, none of these reports provides definitive support that khitaan is fard.  While circumcision of Muslim children might be viewed as indicative of its obligation, this fact could stem from a preference for circumcision among Arabs in general.

While aathar provide persuasive evidence that the early scholars held that khitaan was fard, these too are not dispositive. 

Al-Adab Al-Mufrad » Circumcision

Ibn Shihab said, "When a man became Muslim, he was ordered to have himself circumcised, even if he was old."

Although this report is not a hadith, but is an aathar or report of a saying by a Sahabi, Tabi’in or scholar, it does provide evidence that at the time of Umar Ibn Abdulaziz, the Muslims held that a convert was required to circumcise.  Moreover, it is recorded that Ali ibn Abi Talib (RAA) also made a similar statement to the effect that, “If a man becomes a Muslim, he must submit to circumcision, even if he is 80 years old.” [12] The Shia Ulema hold that a person may not make hajj until he is circumcised.

Given this evidence, one has to ask whether these aathar and daif hadith are persuasive enough or reliable enough to support a hukm sharii beyond mustahabb.

b. Hukm Sharii of Khitaan for Males

Therefore, given the totality of the evidence, the hukm sharii of khitaan for males is mustahabb or mandub.  The Islamic hukm of khitaan is based on the revelation sent to Ibrahim, and its affirmation in the Sunnah revealed to the Prophet Muhammad (SAW). However, the most sahih report, the report of Abu Hurairah, indicates that the hukm sharii applied under Jewish Halaqa law, that of fard, has been abrogated and replaced by the hukm of mustahabb or mandub.  This is supported by the earliest madhdhaahib, that of Abu Hanifa and Imam Malik, who hold that khitaan is Sunnah Mu’akkadah. The aathar of Ibn Shihab, Ali ibn Abi Talib and others were recorded far later and may be questionable. Earlier narrations regarding the obligation of converts to circumcise also have issues, although the hadith of Al-Hasan, holding that the practice is not obligatory, is stronger. Finally, the opinion of Imam Malik holding that khitaan is Sunnah Mu’akkadah carries great weight due to being the prevailing opinion of the Ahl al-Madina.[13] 

However, it should be noted that the opinion that khitaan is fard is quite reasonable given the same evidence.  For this reason, ikhtilaf on the issue of the hukm of khitaan, or male circumcision, is permissible.  Allah Ta’ala Alaa.

c. Under the Hadith of Abu Hurairah, Does Khitaan Apply to Females?

Proponents of female circumcision have argued that the hadith of Abu Hurairah mentioned above applies equally to women.  We noted above the Qur’anic verse supporting equal application of the Shariah law to women.  Therefore, it is a well settled principle in Islam that the commands and prohibitions of this Deen apply equally to men and women unless otherwise indicated.

Clearly there are cases where this equality can only be stretched so far.  Men do not menstruate or bear children.  Men are not required to wait for three quru’ before remarriage and are not required to wait four months after the death of a husband to remarry.  They do not have to wait to reveal what is in their wombs. 

Let us review the hadith of Abu Hurairah in light of these considerations:

Sahih al-Bukhari » Dress

Narrated Abu Huraira:

Allah's Apostle said, "Five practices are characteristics of the Fitra: circumcision, shaving the pubic region, plucking the armpit hairs, clipping the nails and cutting the moustaches short."

حَدَّثَنَا عَلِيٌّ، حَدَّثَنَا سُفْيَانُ، قَالَ الزُّهْرِيُّ حَدَّثَنَا عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ، رِوَايَةً ‏ "‏ الْفِطْرَةُ خَمْسٌ ـ أَوْ خَمْسٌ مِنَ الْفِطْرَةِ ـ الْخِتَانُ، وَالاِسْتِحْدَادُ، وَنَتْفُ الإِبْطِ، وَتَقْلِيمُ الأَظْفَارِ، وَقَصُّ الشَّارِبِ ‏"‏‏.‏ 

Many have noted that shaving the pubic region, plucking the arm pit hairs and clipping the nails applies to everyone, men and women.  However, women do not have moustaches.  The same can be said of beards, which many hold it is haram to cut. [14] The fact that some of the five fitrah may apply to men and women does not necessitate that all of them apply.  Moreover, as we have seen, not all reports of this hadith include khitaan.

            Therefore, taken alone, this hadith and its related reports do not constitute sufficient evidence to support the proposition that khifaadh or female circumcision is an Islamic practice. 

           

2. The Hadith of Ayesha RAA: al-Khitaanu al-Khitaana

Imam Malik relates in his al-Muwatta, the following:

Muwatta Malik » Purity

Yahya related to me from Malik from Ibn Shihab from Said ibn al- Musayyab that Umar ibn al-Khattab and Uthman ibn Affan and A'isha, the wife of the Prophet, may Allah bless him and grant him peace, used to say, "When the circumcised part touches the circumcised part, ghusl is obligatory."

حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنِ ابْنِ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، أَنَّ عُمَرَ بْنَ الْخَطَّابِ، وَعُثْمَانَ بْنَ عَفَّانَ، وَعَائِشَةَ، زَوْجَ النَّبِيِّ صلى الله عليه وسلم كَانُوا يَقُولُونَ إِذَا مَسَّ الْخِتَانُ الْخِتَانَ فَقَدْ وَجَبَ الْغُسْلُ ‏.‏ 

This hadith is also related by Imam Malik through the Golden Isnad:

Muwatta Malik » Purity

Yahya related to me from Malik from Nafi that Abdullah ibn Umar used to say, "When the circumcised part passes the circumcised part, ghusl is obligatory."

وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ نَافِعٍ، أَنَّ عَبْدَ اللَّهِ بْنَ عُمَرَ، كَانَ يَقُولُ إِذَا جَاوَزَ الْخِتَانُ الْخِتَانَ فَقَدْ وَجَبَ الْغُسْلُ ‏

‏        Imam Muslim also relates in his Sahih:

 Sahih Muslim » The Book of Menstruation (Kitab Al-Haid)

Abu Musa reported:

There cropped up a difference of opinion between a group of Muhajirs (Emigrants and a group of Ansar (Helpers) (and the point of dispute was) that the Ansar said: The bath (because of sexual intercourse) becomes obligatory only-when the semen spurts out or ejaculates. But the Muhajirs said: When a man has sexual intercourse (with the woman), a bath becomes obligatory (no matter whether or not there is seminal emission or ejaculation). Abu Musa said: Well, I satisfy you on this (issue). He (Abu Musa, the narrator) said: I got up (and went) to 'A'isha and sought her permission and it was granted, and I said to her: 0 Mother, or Mother of the Faithful, I want to ask you about a matter on which I feel shy. She said: Don't feel shy of asking me about a thing which you can ask your mother, who gave you birth, for I am too your mother. Upon this I said: What makes a bath obligatory for a person? She replied: You have come across one well informed! The Messenger of Allah (may peace be upon him) said: When anyone sits amidst four parts (of the woman) and the circumcised parts touch each other a bath becomes obligatory.

وَحَدَّثَنَا مُحَمَّدُ بْنُ الْمُثَنَّى، حَدَّثَنَا مُحَمَّدُ بْنُ عَبْدِ اللَّهِ الأَنْصَارِيُّ، حَدَّثَنَا هِشَامُ بْنُ حَسَّانَ، حَدَّثَنَا حُمَيْدُ بْنُ هِلاَلٍ، عَنْ أَبِي بُرْدَةَ، عَنْ أَبِي مُوسَى الأَشْعَرِيِّ، ح وَحَدَّثَنَا مُحَمَّدُ بْنُ الْمُثَنَّى، حَدَّثَنَا عَبْدُ الأَعْلَى، - وَهَذَا حَدِيثُهُ - حَدَّثَنَا هِشَامٌ، عَنْ حُمَيْدِ بْنِ هِلاَلٍ، قَالَ - وَلاَ أَعْلَمُهُ إِلاَّ عَنْ أَبِي بُرْدَةَ، - عَنْ أَبِي مُوسَى، قَالَ اخْتَلَفَ فِي ذَلِكَ رَهْطٌ مِنَ الْمُهَاجِرِينَ وَالأَنْصَارِ فَقَالَ الأَنْصَارِيُّونَ لاَ يَجِبُ الْغُسْلُ إِلاَّ مِنَ الدَّفْقِ أَوْ مِنَ الْمَاءِ ‏.‏ وَقَالَ الْمُهَاجِرُونَ بَلْ إِذَا خَالَطَ فَقَدْ وَجَبَ الْغُسْلُ ‏.‏ قَالَ قَالَ أَبُو مُوسَى فَأَنَا أَشْفِيكُمْ مِنْ ذَلِكَ ‏.‏ فَقُمْتُ فَاسْتَأْذَنْتُ عَلَى عَائِشَةَ فَأُذِنَ لِي فَقُلْتُ لَهَا يَا أُمَّاهْ - أَوْ يَا أُمَّ الْمُؤْمِنِينَ - إِنِّي أُرِيدُ أَنْ أَسْأَلَكِ عَنْ شَىْءٍ وَإِنِّي أَسْتَحْيِيكِ ‏.‏ فَقَالَتْ لاَ تَسْتَحْيِي أَنْ تَسْأَلَنِي عَمَّا كُنْتَ سَائِلاً عَنْهُ أُمَّكَ الَّتِي وَلَدَتْكَ فَإِنَّمَا أَنَا أُمُّكَ ‏.‏ قُلْتُ فَمَا يُوجِبُ الْغُسْلَ قَالَتْ عَلَى الْخَبِيرِ سَقَطْتَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ "‏ إِذَا جَلَسَ بَيْنَ شُعَبِهَا الأَرْبَعِ وَمَسَّ الْخِتَانُ الْخِتَانَ فَقَدْ وَجَبَ الْغُسْلُ ‏"‏ ‏.‏

            While I have no doubt that this hadith is sahih according to Imam Muslim and was accepted by Imam Malik, and therefore that it meets the criteria I have set forth in our minhaj for a sahih hadith, valid for the purposes of deriving fiqh, I have serious issues with the interpretation and subsequent translation of this narration.  Just because a hadith is sahih does not mean that the interpretation is sahih.

            The term “khitaan” in this hadith has been interpreted and translated to mean “the two circumcised parts.”  In nawh, khitaan is not a dual form.  The dual of khitn or khitaan would be khitaanaan or khitaanain.  So the literal meaning of this term is not the “two circumcised parts.” 

            Therefore, the apparent dhahiri meaning of khitaan in this hadith is singular, not dual.  And according to Lane’s Lexicon, the term khitaan is defined in relation to the ayat of the Qur’an referring to ghusl following intercourse.

Allah SWT says in the Qur’an:

4:43  "O you who believe! Approach not As-Salat (the prayer) when you are in a drunken state until you know (the meaning) of what you utter, nor when you are in a state of Janaba, (i.e. in a state of sexual impurity and have not yet taken a bath) except when travelling on the road (without enough water, or just passing through a mosque), till you wash your whole body. And if you are ill, or on a journey, or one of you comes after answering the call of nature, or you have been in contact with women (by sexual relations) and you find no water, perform Tayammum with clean earth and rub therewith your faces and hands (Tayammum) . Truly, Allah is Ever Oft-Pardoning, Oft-Forgiving.

            In his Lexicon, Lane defines the term khitaan as referring not only to circumcision but also specifically to that part of the penis from where the foreskin attaches or was attached just below the glans, up to the tip of the glans.  So in terms of the interpretation of hadith of Ayesha RAA, Lane posits that it means that when the part of the penis from the foreskin attachment line to the tip penetrates into the vagina, then the person is in intercourse and must make ghusl.  Anything short of this degree of penetration does not incur ghusl. 

            This is supported by a variant of the hadith found in The Muwatta of Imam Malik.

Muwatta Malik » Purity

Yahya related to me from Malik from Yahya ibn Said from Said ibn al-Musayyab that Abu Musa al-Ashari came to A'isha, the wife of the Prophet, may Allah bless him and grant him peace, and said to her, "The disagreement of the companions in a matter which I hate to bring before you has distressed me." She said, "What is that? You did not ask your mother about it, so ask me." He said, "A man penetrates his wife, but becomes listless and does not ejaculate. "She said, "When the khitaan part passes or penetrates, ghusl is obligatory."  Abu Musa added, "I shall never ask anyone about this after you."

وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ يَحْيَى بْنِ سَعِيدٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، أَنَّ أَبَا مُوسَى الأَشْعَرِيَّ، أَتَى عَائِشَةَ زَوْجَ النَّبِيِّ صلى الله عليه وسلم فَقَالَ لَهَا لَقَدْ شَقَّ عَلَىَّ اخْتِلاَفُ أَصْحَابِ النَّبِيِّ صلى الله عليه وسلم فِي أَمْرٍ إِنِّي لأُعْظِمُ أَنْ أَسْتَقْبِلَكِ بِهِ ‏.‏ فَقَالَتْ مَا هُوَ مَا كُنْتَ سَائِلاً عَنْهُ أُمَّكَ فَسَلْنِي عَنْهُ ‏.‏ فَقَالَ الرَّجُلُ يُصِيبُ أَهْلَهُ ثُمَّ يُكْسِلُ وَلاَ يُنْزِلُ فَقَالَتْ إِذَا جَاوَزَ الْخِتَانُ الْخِتَانَ فَقَدْ وَجَبَ الْغُسْلُ ‏.‏ فَقَالَ أَبُو مُوسَى الأَشْعَرِيُّ لاَ أَسْأَلُ عَنْ هَذَا أَحَدًا بَعْدَكِ أَبَدًا ‏.‏ 

            Therefore, the hadith of Ayesha has been incorrectly interpreted to mean “when the two circumcised parts touch,” thereby indicating that a female can be circumcised or that female circumcision is mubah.  Instead, it is more correctly interpreted to mean, “when the part of the penis from the tip of the glans to the raised scar line where the foreskin was attached penetrates into the vagina, it then becomes incumbent upon both partners to make ghusl.”

            In short, this hadith of Ayesha RAA does not provide evidence of any hukm for khifaadh.  Although it could be used tangentially to support khitaan in males, it has no bearing on female circumcision.

3. Umm Atiyyah

            While proponents of khifaadh have relied upon both of the hadith above, it is upon the narrations surrounding the practice of a female circumcisor in Madina upon which the greatest weight has been placed.  I feel this reliance has been greatly misplaced.

The narration in Sunan Abu Dawud reads:

Sunan Abi Dawud » General Behavior (Kitab Al-Adab)

Narrated Umm Atiyyah al-Ansariyyah:

A woman used to perform circumcision in Medina. The Prophet (saws) said to her: Do not cut severely as that is better for a woman and more desirable for a husband. Abu Dawud said: It has been transmitted by 'Ubaid Allah b. 'Amr from 'Abd al-Malik to the same effect through a different chain. Abu Dawud said: It is not a strong tradition. It has been transmitted in mursal form (missing the link of the Companions) Abu Dawud said: Muhammad b. Hasan is obscure, and this tradition is weak.

حَدَّثَنَا سُلَيْمَانُ بْنُ عَبْدِ الرَّحْمَنِ الدِّمَشْقِيُّ، وَعَبْدُ الْوَهَّابِ بْنُ عَبْدِ الرَّحِيمِ الأَشْجَعِيُّ، قَالاَ حَدَّثَنَا مَرْوَانُ، حَدَّثَنَا مُحَمَّدُ بْنُ حَسَّانَ، - قَالَ عَبْدُ الْوَهَّابِ الْكُوفِيُّ - عَنْ عَبْدِ الْمَلِكِ بْنِ عُمَيْرٍ، عَنْ أُمِّ عَطِيَّةَ الأَنْصَارِيَّةِ، أَنَّ امْرَأَةً، كَانَتْ تَخْتِنُ بِالْمَدِينَةِ فَقَالَ لَهَا النَّبِيُّ صلى الله عليه وسلم ‏ "‏ لاَ تُنْهِكِي فَإِنَّ ذَلِكَ أَحْظَى لِلْمَرْأَةِ وَأَحَبُّ إِلَى الْبَعْلِ ‏"‏ ‏.‏ قَالَ أَبُو دَاوُدَ رُوِيَ عَنْ عُبَيْدِ اللَّهِ بْنِ عَمْرٍو عَنْ عَبْدِ الْمَلِكِ بِمَعْنَاهُ وَإِسْنَادِهِ ‏.‏ قَالَ أَبُو دَاوُدَ لَيْسَ هُوَ بِالْقَوِيِّ وَقَدْ رُوِيَ مُرْسَلاً ‏.‏ قَالَ أَبُو دَاوُدَ وَمُحَمَّدُ بْنُ حَسَّانَ مَجْهُولٌ وَهَذَا الْحَدِيثُ ضَعِيفٌ ‏.‏

Abu Dawud’s Sunan is an important collection of hadith in that he collected ahadith that were being used by scholars of his day in support of their dalil of fiqh.  So the presence of this hadith in his Sunan tells us scholars were using it in their dalil.  However, we noted that Abu Dawud did not feel this was a strong tradition in that it had been related in mursal form. It does not specify that Umm Atiyyah actually heard the Prophet speak to the anonymous woman who performed this practice. The verb used in relation to Umm Atiyyah is “’an” not “haddathna” or some other indicator of direct hearing. However, Sheikh Albani found this particular hadith to be sahih under his criterion.  As we have noted above, this criterion, using Ilm Al-Rijal alone is not valid. Under our minhaj, I will not accept a chain that has a broken link or one with such a weak relation. It is simply too dangerous to accept such a hadith for the purposes of fiqh.  Fiqh is not a joke.  If it is haram to subscribe words falsely to our Prophet SAW, how much more so to do so to Allah SWT.  In fact Allah SWT says so. 

Allah SWT says in the Qur’an al-Hakim:

 6:144. Of camels a pair, And of oxen a pair;
Say, hath He forbidden The two males,
Or the two females, Or (the young) which the wombs
Of the two females enclose?— Were ye present when God
Ordered you such a thing? But who doth more wrong
Than one who invents A lie against God,
To lead astray men Without knowledge?
For God guideth not People who do wrong

            Some have cited a version of this hadith found in al-Hakim’s al-Mustadrak which they hold to be sahih.  First, I have to ask under what criteria has this hadith been found to be sahih?  No uniform criterion exists for a sahih hadith.  The criterion for sahih used by al-Hakim has been criticized by some scholars. While some of his sahih hadith are also found in the Sahihs of al-Bukhaari and Muslim, and so conform to their criteria, some were adjudged by his own ijtehad. Ibn Hajar al-Asqalani, Imam Nawawi and al-Dhahabi found his criteria for sahih to be too lenient.  Moreover, this hadith is not found in earlier collections.  The earliest is Abu Dawud and he finds the hadith to be da’if.

            As we noted above, one of the defects with this hadith of Umm Atiyyah is that it is found in mursal form.  However, some have cited a hadith of Umm Habeebah, a circumciser of female slaves. When the Prophet SAW asked her if she was currently practicing female circumcision, she replied, "Unless it is forbidden and you order me to stop doing it." It is reported that the Prophet (peace and blessings be upon him) said to a midwife: "Reduce the size of the clitoris but do not exceed the limit, for that is better for her health and is preferred by husbands". This passage has come to be known as "the exciser's narration." So, unlike the hadith of Umm Atiyyah, this hadith apparently comes directly from person to whom the Prophet SAW spoke about the issue. While this hadith presents the appearance of a complete chain supporting the permissibility of female cutting of some form, the fact that it is not found in the early collections raises concerns.  Imam al-Qaradawi does not find it to be sahih.[15]

Even if we accept this hadith as evidence based on its isnad, we must also look to the matin.  What does this hadith say? Umm Atiyyah’s hadith begins, “La tunhiki”  “Do not cut.”  It then goes on to say that is “ahdha” for women and beloved by men.  The “la” indicates dislike or a preference that the thing not be done.  The Prophet then states that it is best, not just better, but the superlative best (ahdha), for women in terms of their health and wellbeing.  And, it is best for the happiness of the husband.  Why?  Many men derive the most pleasure from their ability to satisfy their wives.  If their wife is experiencing pleasure, they will too.  Under Shariah Law, the wife has a right to sexual satisfaction, as does the husband.  These practices deprive both partners of that right.

Some scholars have held that the “la” is crucial, and indicative of a gradual trend toward total prohibition, much like the prohibition of alcohol and the dislike and trend toward abolishment of slavery in Islam.  These scholars posit that “la tunhiki” means that the Prophet SAW was moving toward abolishing this practice entirely.  The next part of the hadith substantiate this in that, just as with the ayaat of the Qur’an mentioning the detriments of drinking alcohol, the Prophet gives the ‘illa or reason for preferring that she not cut. 

It is important to note that while the hadith of Umm Habibah does not have the language of “la tunhiki,” it still advises her not to cut excessively so as not to harm the woman and to allow of the pleasure of the man.  Clearly, the purport of this hadith of Umm Habeebah is the same as that of Umm Atiyyah, that the preference is to forego cutting, but if it is done, one must consider the pleasure of both the man and the woman.  Even if it does not contain the “la”, it still supports a gradual trend toward ending the practice.

Finally, I find this hadith regarding the female circumcisor and her practice to be insuffiently strong enough to overcome the Quranic prohibition against mutilation or permanent modification of the human bidy.  I do not feel it is binding evidence for the purposes of fiqh.  However, even when considered as persuasive evidence, I would agree with those scholars who posit that the hadith indicates a move toward abolishing the practice and that if that process was not completed before the death of Rasulallah SAW, then the practice would be makruh.

4. If Khifaadh was Mubah, Where is the Expected Evidence?

One of the principles of this minhaj is that we do not accept ahad hadith where the where the practice or saying occurred in public and should have been recorded by many. Khifaadh is not a public event, but certainly the wives of the Prophet, the Mothers of the Believes would be expected to be aware of this practice or to have had it performed. Where are the hadith from Ayesha, the wife of our Prophet SAW, who was young enough to have been born around the time of her father’s conversion?  Where are the hadith from sisters who converted to Islam recounting how they were circumcised after Islam?  And perhaps, most tellingly, where is the hadith that the Prophet had his beloved daughter, Fatimah, circumcised? 

The proponents of khifaadh rely upon a hadith related by Imam Jaafar al-Sadiq, from the Prophet SAW that khitaan is law (i.e. Fard) for men and mukramah is for women.  This hadith comes in various forms indicating different things.  In one form, it could be interpreted to mean that khitaan is for men, and if some one wonders if under the principle of equality of men and women under Shariah, what is for women, then being honorable is for women.  In other words, the corresponding act for women is to act honorably and guard their chastity. 

However, some forms of this hadith lead to another impression.  In a version related by Imam Jaafar al-Sadiq, the hadith would seem to be saying that khitaan is for fard for men and “makrumah” for women, i.e. honorable.  The difficultly with this interpretation is that “makrumah” is not a hukm sharii.  At most, this hadith would indicate that khitaan is fard for men, and perhaps permissible or mubah for women.  It is possible this could be stretched to mustahhabb or mandub given some forms of the hadith.  However, it appears that some of the shuyuk of Al-Azhar have used this hadith or a variant to support the opinion that khifaadh is mukaramah or pleasing to Allah SWT.  Again, mukaramah is not a hukm sharii. 

But, what about the missing hadith, the missing evidence?  If khifaadh was mustahabb, why did not Fatimah, the most mukramah of women, have it done?  Why didn’t her father have it performed on her?  It was a pre-Islamic practice.  Where are ahadith recording any wife of Prophet SAW or daughter having this done?  Where was Umm Habeebah when Zainab, Ruqayyah, Umm Kulthum and Fatimah were born?  And what about Ayesha, Hafsa, even Khadijah RAA?  Were they dishonorable women? (Istaghfirullah)

What about the hadith recorded by Shia?  Where are the hadith in Al-Kafi recording Fatimah’s khifaadh?  Or the khifaadh of Ali’s daughter, Zainab? The only so-called Shia group practicing this khifaadh are the South Asian Ismaili  Dawoodi Bohras.  In fact, two medical practitioners have been indicted under the Federal anti-FGM statute for performing forms of female genital modification on minor Ismaili Bohra girls in Michigan.[16]

In fact, the only hadith I could find mentioning this practice in regard to one of the Mothers of the Believers is the following rather dubious account:

Al-Adab Al-Mufrad » Circumcision

Umm 'Alqama related that when the daughters of 'A'isha's brother were circumcised, 'A'isha was asked, "Shall we call someone to amuse them?" "Yes," she replied. 'Adi was sent for and he came to them. 'A'isha passed by the room and saw him singing and shaking his head in rapture - and he had a large head of hair. 'Uff!' she exclaimed, 'A shaytan! Get him out! Get him out!'"

حَدَّثَنَا أَصْبَغُ قَالَ‏:‏ أَخْبَرَنِي ابْنُ وَهْبٍ قَالَ‏:‏ أَخْبَرَنِي عَمْرٌو، أَنَّ بُكَيْرًا حَدَّثَهُ، أَنَّ أُمَّ عَلْقَمَةَ أَخْبَرَتْهُ، أَنَّ بَنَاتَ أَخِي عَائِشَةَ اخْتُتِنَّ، فَقِيلَ لِعَائِشَةَ‏:‏ أَلاَ نَدْعُو لَهُنَّ مَنْ يُلْهِيهِنَّ‏؟‏ قَالَتْ‏:‏ بَلَى‏.‏ فَأَرْسَلْتُ إِلَى عَدِيٍّ فَأَتَاهُنَّ، فَمَرَّتْ عَائِشَةُ فِي الْبَيْتِ فَرَأَتْهُ يَتَغَنَّى وَيُحَرِّكُ رَأْسَهُ طَرَبًا، وَكَانَ ذَا شَعْرٍ كَثِيرٍ، فَقَالَتْ‏:‏ أُفٍّ، شَيْطَانٌ، أَخْرِجُوهُ، أَخْرِجُوهُ‏.‏

This hadith is recorded by Imam Bukhaari in his non-Sahih work, al-Adab al-Mufrad, indicating that Bukhaari did not consider it sahih.  Moreover, the hadith mentions all manner of haram practices, including hiring some form of kahin to perform for the girls.  I feel this hadith is far too questionable to be even considered as evidence. 

However, the purport of this hadith may be considered with a hadith in Sahih al-Bukhaari, narrating that Washi recounted that “Hamza bin `Abdul Muttalib came out during the Battle of Uhud, and said to a man who challenged him, 'O Siba'. O Ibn Um Anmar, the one who circumcises other ladies! Do you challenge Allah and His Apostle?' Then Hamza attacked and killed him, causing him to be non-extant like the bygone yesterday.” 

Given this line of evidence, I would say that the most we can surmise is that calling someone a female circumciser or even the son of a female circumciser was an insult, and that such practices were viewed with scorn by the early community.

In sum, given the lack of expected evidence for a practice considered to be “makrumah” or “mukaramah and the lack of any other unquestionable evidence indicating the Prophetic Sunnah, I cannot support any finding that khifaadh is mubah, much less that it carries the hukm sharii of mustahabb.  If anything, the only argument that can be made on the basis of the evidence is that it is makruh.  However, the ahadith supporting a hukm of makruh are not of sufficient weight to overcome the hukm assigned to modifications of the body by Allah SWT in the Qur’an, i.e. haram.

Evidence from Persuasive Sources

While I do not feel that persuasive evidence including qiyas, maslahah, or the maqaasid ash-shariah are capable of naskh of a clear nass of the Qur’an, it is possible for such rational considerations to guide us in implementing the commands and prohibitions sent down to us by Allah SWT.

In that effort, we turn now the consideration of the maqaasid ash-shariah in implementing Allah’s command against mutilation or alteration of the human body.

The first maqsid is protection and preservation of deen.  It is not clear from the evidence of the Sunnah of our Rasulallah SAW that this practice carries a hukm at variance from the general hukm given all alternations or mutilations by the Qur’an.  If anything, the hadith of Umm Atiyyah and Umm Habeebah would indicate that the practice is makruh, and not mustahabb, as some claim.  Mukaramah is not a hukm sharii. 

Furthermore, it is not clear how this practice would protect the deen of an individual. Allah SWT made marriage mubah as a means to protect our chastity and honor.  No proponent has even mentioned how this practice would serve the worship of Allah or the practice of the deen in general. We shall examine this issue of chastity and honor when we discuss the maqsid of dignity.

The second maqsid is the protection and preservation of life.  Several form of this practice of female genital modification directly impact life.  The Type III infibulation or sewing up of the vagina, thereby preventing intercourse and the normal flow of blood and urine from the body has a direct impact on the quality of life and has resulted in death.  Not only have women died from the surgery to perform this Pharoanic circumcision, but even those who survive face complications, bleeding, infection, unimaginable pain, suffering, and death. [17] Moreover, Type II excision also has led to the same health risks, including death.  There can be no question that given the risk of death, infibulation, reinfibulation, and excision are haram.

And not only are infibulation, reinfibulation and excision haram in terms of the maqasid, they constitute clear mutilation of the human body.  As we have noted several times, mutilation or alteration of the body is haram.  The hadith evidence cited by proponents might be seen as making something analogous to male circumcision mubah, but no procedure performed upon males is analogous to infibulation and excision.  These practices are unquestionable haram and performing them on another, and even upon one’s self is haram, and is punishable under Shariah law. We will discuss the punishment below, in shaa llah.

But what about Type I female genital mutilation? 

Muwatta Malik » Blood-Money

Malik related to me that the generally agreed on way of doing things amongst the community about an accident is that there is no blood-money until the victim is better. If a man's bone, either a hand, or a foot, or another part of his body, is broken accidentally and it heals and becomes sound and returns to its form, there is no blood-money for it. If the limb is impaired or there is a scar on it, there is blood-money for it according to the extent that it is impaired. Malik said, "If that part of the body has a specific blood-money mentioned by the Prophet, may Allah bless him and grant him peace, it is according to what the Prophet, may Allah bless him and grant him peace, specified. If it is part of what does not have a specific blood-money for it mentioned by the Prophet, may Allah bless him and grant him peace, and if there is no previous sunna about it or specific blood-money, one uses ijtihad about it." Malik said, "There is no blood-money for an accidental bodily injury when the wound heals and returns to its form. If there is any scar or mark in that, ijtihad is used about it except for the belly-wound. There is a third of the blood-money of a life for it. " Malik said, "There is no blood-money for the wound which splinters a bone in the body, and it is like the wound to the body which lays bare the bone." Malik said, "The generally agreed on way of doing things in our community is that when the doctor performs a circumcision and cuts off the glans, he must pay the full blood-money. That is because it is an accident which the tribe is responsible for, and the full blood money is payable for all that in which a doctor errs or exceeds, when it is not intentional."

            Imam Malik states in this fatwa that the cutting off of the glans of the penis during khitaan is a crime.  The people of Madina considered such an act as analogous to accidental murder.  Therefore, similarly to manslaughter, the responsible party must pay diya or full blood money. 

            Two points are evident from this hadith.  First, cutting off the glans, that portion of the sex organ that experiences pleasure and which when stimulated, triggers sexual emissions, is haram.  Cutting off the glans renders a man impotent.  While cutting off a woman’s clitoris does not render her sterile, we do not fully understand the role of female emissions in fertility.[18] 

           

            Even proponents must recognize that if we are going to talk about equality for men and women under Shariah, then cutting off the “female glans,” the clitoris, is haram and must be compensated by diya.  Any risk of death from the surgery itself only adds to the hukm.

            So, what about what many consider to be female circumcision, Type Ia FGM?  Does removal of the clitoral hood or prepuce impact life?  Proponents claim that removing the prepuce is good for health.  Some claim that it prevents the husband from contracting chlamydia when performing cunnilingus or oral sex on a female.  Such a claim is ridiculous. Chlamydia is transmitted orally, anally and through vaginal sex.  If your partner has this condition, removal of the prepuce will not prevent its transmission, nor will it prevent a woman from contracting it.[19]

Others, including Imam al-Qaradawi, have claimed that it prevents immorality and promiscuity.  This is also absurd.  Some men have argued that male circumcision reduces the sensitivity of the penis. Several studies have been conducted on this issue, with varying results.[20]  While there may be a slight loss of sensitivity when the foreskin is removed, no one has claimed or suggested that there is a corresponding loss of libido. Some even claim an increase. Removing the foreskin does not affect male libido, so why would removing the prepuce reduce female libido, thereby preventing promiscuity?  This belief, unsubstantiated by medical science, only reveals to degree of superstition, tradition and male anxiety over female sexuality that drives this practice.

Moreover, this practice is more likely to cause health problem. Given the evidence from medical science, if the surgery is performed in unsanitary conditions by people who are not qualified, it can cause pain, bleeding and death.

           

            Furthermore, another consideration impacts our determination of the hukm of this practice – Sad al-Darar, blocking the doors to a greater harm.  In Sudan, the government banned Pharoanic circumcision, but continued to allow “Sunnah” circumcision.  Practitioners used this loophole to continue the practice with only slight modifications, resulting in continued suffering, pain and death.[21] If it is found that permitting this form of genital modification is leading to more evasive and haram forms, then it too must be declared haram.

           

            The third maqsid is protection and promotion of dignity, including lineage and honor.  Many proponents may suggest that this practice does just that.  As we have noted, one of the motivations for this practice is control over women’s sexuality in an effort to protect male honor.  However, this practice does not really succeed in that effort.

           

            For one thing, Type III and II FGM can result in prevent pregnancy or even lead to the death of mother and baby at the time of birth.  This has a direct negative impact on lineage.  And how honorable is it to marry your daughter to a young man who will be unable to have relations with his new wife, or who will lose a child and his wife in childbirth?  These practices are a cruel and disguised form of infanticide.  Instead of killing the girl at birth, we are killing them in child birth, and their unborn child with them.

           

            On the basis of the prohibition on female infanticide revealed in the Qur’an, and the clear nass declaring mutilation and alternation of the body to be haram, also found in the Qur’an, as well as the principle of Sad al-Darar, all forms of FGM, Types I, II and III are haram.

In regard to the fourth and fifth maqaasid, protection and promotion of aql and mal, we can see no benefit to recommend these practices.  If anything, such practices can lead to mental illness and the pain and suffering as well as disability and physical ramifications can only lead to loss of mal.

THE HUKM OF FEMALE GENITAL MODIFICATION

            Based on the above evidence and discussion, we find the following:

1. We find that any form of modification of the female genitals for other than medical necessity is mutilation, and constitutes an illegal alteration of the human body prohibited and made haram by the Qur’an in ayat 4:119 in Surah an-Nisaa’.
2. We find that what the WHO refers to as Type Ia FGM is haram under the prohibition against alteration of the body by the Qur’an in ayat 4:119 and even if, for the sake of argument, it should be found to be mubah, then haram by the operation of Sad ad-Darar.
3. We find that what the WHO refers to as Type Ib FGM is haram under the prohibition against alteration of the body by the Qur’an in ayat 4:119 and by the Sunnah, in the hadith ordering diya for the cutting off of the glans of the penis.
4. We find that what the WHO refers to as Types II and III FGM are haram under the prohibition against alternation of the body by the Qur’an in ayat 4:119.
5. These hukm apply equally to minors below the age of 18 as well as to adults.  It is illegal to do it to children in the West, but what about adult women voluntarily doing it?  It may be legal under Western law, but if it is haram under Islamic law, then it would be a sin.  And even if someone views this practice as mubah, the husband, not the parents, would have to be consulted and his approval obtained. Such a procedure should only be performed by a licensed medical doctor or surgeon, and only after consulting with at least two gynecologists as to the advisability of the procedure, particularly in consideration of child bearing and birth.  It should be noted that non-Muslims are now seeking forms of excision of the labia minora for cosmetic purposes.  This procedure is haram Islamically. Cosmetic labiectomies are haram because they are intended to be cosmetic.  This is not a loophole for those who care more about urf than Allah’s Shariah. 

WORD ON FITNAH

Finally, we remind everyone that fitnah akbar min al qatl, fitnah shadud min al qatl, fitnah ashdud min al qatl.  This discussion is meant to put forward a fiqh position given the sources of our deen and the minhaj we find the most sound.  Not all may agree.  Ikhtilaaf is permissible and no person putting forth a reasonable position should be abused in any manner.  Nor should people use differing decisions as fuel for their own egos in an effort to appear superior to others. Kibriyya is the sin of Shaytan.  Do not approach it.  We may disagree on a position, but in the end, we pray together, in jamaa for guidance from Allah.

And it is in that spirit of ijma consensus that we must understand that we are all ambassadors of Islam.  Everything we say is monitored, and not just by Malaikah.  People judge our deen by our behavior; they judge Allah SWT by your behavior.  Many unseen eyes are watching you.  What do you want them to see?

Any error contained herein is upon my head alone, may Allah SWT forgive me. Any truth is from the One who is Haq.  Allah Ta’ala Alim.

---

[1] The school of Abu Hanifa hold that the natural hukm of any act is haram unless otherwise proved.  This is one reason for the prohibition on shell fish in the Hanafi school. The Hanifiyyah hold that the texts support eating fish, but not shell fish.  Perhaps we shall address this issue some day, but for now, if the minhaj is reasonable, then we respect differing positions, even if we do not agree.  Certainly, permissibility seems the stronger position, given the Qur’anic ayaat of 2:168 and 2:172, but as always, Allah Ta’ala Alim.

[2] The Qur’an refers to “yughaiyyrunna khalqa Allah” changing or altering Allah’s Creation.  The term mutilation is translated into Arabic as “bitr” or “at-Tashawiyyah.  Mutilation in retaliation or to avenge an injury is “al-muthlah.”  This kind of mutilation is absolutely haram.  Ali RAA prohibited his sons from mutilating Abu Muljam in retaliation for his murder of Ali.  He said, “Avoid mutilation, even on a vicious dog.” 

[3] “Pharaonic Circumcision (Infibulation),” Dr. Al-Amin Dawood (PhD), Website of Dr. Mahmoud Ahmad Fora, 2005.

[4] In fact, the Israeli government tried to use this as a reason to ban immigration and automatic citizenship to Ethiopia’s “black” Jews. 

[5] “Global Strategy to Stop Health Care Providers From Performing Female Genital Mutilation,” (WHO, 2010) p. 1; “Eliminating Female Genital Mutilation,” (WHO, 2008) p.4.

[6] ”US Proposes Nicking Genitals as ‘Compromise’ for FGM in Western Countries,” Lucy Westcott, Newsweek, http://www.newsweek.com/fgm-compromise-nick-western-countries-429250, Accessed 07/19/2017.

[7] “Global Strategy to Stop Health Care Providers From Performing Female Genital Mutilation,” (WHO, 2010) p. 1; “Eliminating Female Genital Mutilation,” (WHO, 2008) p.4.

[8] “Global Strategy to Stop Health Care Providers From Performing Female Genital Mutilation,” (WHO, 2010) p. 1; “Eliminating Female Genital Mutilation,” (WHO, 2008) p.4.

[9] “Global Strategy to Stop Health Care Providers From Performing Female Genital Mutilation,” (WHO, 2010) p. 1; “Eliminating Female Genital Mutilation,” (WHO, 2008) p.4.

[10] At-Tirmidhi records that it was Umm Umaarah who asked the question.  The muhadithun have reconciled this with the idea that Umm Salamah may have asked the question on behalf of Umm Umaarah.

[11] Please refer to Appendix I for a search of all hadith referring to circumcision.

[12] Al-Furu’ Min al Kafi, Vol 6, Al-Kalini, (Dar al Kutub al-Islamiyy, Tehran, 1981).

[13] It should be noted that Allah SWT has treated other laws revealed previously in a similar manner.  Allah SWT revealed the legislation regarding stoning for adultery in the Torah.  However, He modified and provided takhsis of this ruling in the Qur’an by revealing the verses of 100 lashes for zina, and the Sunnah understanding that stoning is for the married zani and lashes for the unmarried zani.  Some have argued that the Qur’an abrogated stoning by revealing the verses on lashing.  Perhaps, if Allah SWT gives us life, we can address this issue more thoroughly.

[14] The issue of beards, cutting, shaving, length etc and their hukm are beyond the scope of this paper.

[15] Islamicity, Question # 7395,  http://www.islamicity.org/qa/action.lasso.asp?-db=services&-lay=Ask&-op=eq&number=7395&-format=detailpop.shtml&-find, accessed 07/19/2019.

[16] Michigan, in 2017, has criminalized the practice under state law as a felony, punishable with up to 15 years in prison.

[17] “Global Strategy to Stop Health Care Providers From Performing Female Genital Mutilation,” (WHO, 2010) p. 1; “Eliminating Female Genital Mutilation,” (WHO, 2008) p.4; “Health Risks of Female Genital Mutilation,” (WHO, accessed 6/13/2017).

[18] It should be noted that it was not until the ‘70s that Masters and Johnson, the experts on human sexuality, first proposed that women has an orgasm and some form of emission.  However, the Qur’an noted it 1400 years earlier. 

[19] “Chlamydia: CDC Fact Sheet,”  Centers for Disease Control website, https://www.cdc.gov/std/chlamydia/stdfact-chlamydia-detailed.htm, Accessed 07/16/2017.

[20] :Does Circumcision Reduce Men’s Sexual Sensitivity,” Michael Castleman, M.A., Psychology Today, https://www.psychologytoday.com/blog/all-about-sex/201510/does-circumcision-reduce-men-s-sexual-sensitivity, Accessed 07/16/2017.

[21] “The Continuing Challenge of Female Genital Mutilation in Sudan,” A.R.Sharfi, M.A. Elmegboul, A.A. Abdella; (African Journal of Urology, vol. 19,  2013) pp. 136-140.

Minhajuna fi Usool al-Fiqh

METHODOLOGY:      MINHAJ AL-MAQAASIDIYYAH

Before we begin a discussion of any fiqh issue, we should have an understanding of the basic methodology necessary to tackle any issue in fiqh – what we call Usool al-Fiqh.  Nine schools of thought or madhdhaahib present their manaahij or methodologies to the world today; the Sunni schools of Abu Hanifa, Imam Malik, Imam Shafii, and Ahmad ibn Hanbal; the modern schools of the Jamhuriyya, and the Salafiyya; the Shia Ja'afai schools, Aathari (textual) and Usooli (rational); and the emerging school based on the Usul al-Fiqh of Al-Shatiibii, the Maqaasidiyya.  This last school is emerging and is best exemplified by the work of Ibn Ashur. 

It is important to recognize that these nine schools are based on different manaahij or methodologies of interpretation of texts, of determination of the authentic Sunnah, of use of rational methods such as analogy, and other considerations.  These differences result in differing opinions.  As Muslims, we must respect all reasonable minaahij.  We do not have to agree, but we have to respect others opinions as long as they are reasonably derived using a reasonable methodology.  The opinions and intuitions of “spiritually inspired” saints do not constitute a reasonable minhaj.[1]  However, the opinions of scholars obtain using a systematic and reasonable minhaj and based upon a dalil with evidence from the sources of our deen, are to be accorded complete respect. 

Allah SWT has made it clear in the Qur’an: Fitnah Akbar Min al Qatl; Fitnah Shadud Min al Qatl; Fitnah Ashdud Min al Qatl.  Iktilaaf should never be a source of fitnah.  As evidenced by the hadith regarding the expedition to the Bani Quraizah:  The Prophet told the people to pray Asr after arriving at the fort of the Bani Quraizah.  Some people set out, but were delayed and it was getting late.  The people stopped and discussed how to proceed.  One group continued on and prayed when they reached the fort.  The other group prayed and then proceeded to the fort.  Afterwards, they asked the Prophet SAW about their ijtihad.  He then did something very important.  He did not rebuke either of them.  If he had said one was right or both were right, then he would have limited our fiqh to one or two minhaj, but he did not rebuke either, leaving an opening for any reasonable minhaj. 

Primary Sources of Shariah

All madhdhaahib of fiqh and all reasonable minaahij posit that our deen is based on revelation from Allah SWT to His Prophet Muhammad SAW.  Revelation has come to us in two forms; the Qur’an or direct revelation of the verbatim Word of Allah SWT through the agency of the angel Jibreel (AS) to the Prophet Muhammad SAW, and the Sunnah or actions, statements and tacit approvals of the Prophet Muhammad SAW on matters for which he received Divine guidance.  All the madhdhaahib agree that these two sources, the Qur’an and the Sunnah, contain the Divine Legislation or Shariah, and are binding upon us. However, these schools of thought differ as to the determination of what is Sunnah, and as to the role and weight of other potential sources.

It is beyond the scope of this paper to explore the differences among the madhdhaahib as to determination of Sunnah.  However, we can say that none of us know the Sunnah directly.  We simply were not there and there is no video tape.  All we have are reports of what people felt was important or what they chose to remember.  And these reports come in various forms.  Some are found in historical works, such as the Seerah of Ibn Hisham, or At-Ta’reekh Ar-Rasul Wa l’Muluuk of At-Tabarii. But for the purposes of fiqh, the scholars have always preferred the form of Islamic literature referred to as ahadith.[2]

Moreover, serious recording of these ahadith did not begin until the reign of the Umayyad Khalif, Umar Ibn Abdulaziz. (RA), who reigned only three years from 98 AH to 101 AH.  While written materials were compiled by scholars, particularly ibn Shihab az-Zuhri, none of these sihaafah are extant. Moreover, early collections such as az-Zuhri and Imam Ahmad ibn Hanbal, collected ahadith without any criticism or judging of the text as to authenticity, reasonableness or compatibility with the Qur’an. This is why some have noted that both az-Zuhri and Imam Ahmad have contradictory or multiple positions on fiqh matters. 

The earliest extant written book of ahadith with a consistent criteria for inclusion of material is Al-Muwatta of Imam Malik ibn Anas (RA) (d. 124 AH) of Madina. Imam Malik included reports accepted by the scholars of Madina as well as fatawa issued by Madina scholars, including himself.  Al-Muwatta builds a fairly complete snapshot of the practices of the people of Madina and the ahadith agreed upon by its scholars, one reason why Imam Ibn Taymiyyah advocates for a preference for the Madini way in his book.

However, it was not until Imam al-Bukhaari that muhadithuun began to more systematically analyze hadith for authenticity.  This fact is important in understanding how the madhdhaahib developed their minaahij, especially in criteria for accepting ahadith.  Imam Abu Hanifa died in 150 AH, relatively early in the development of uloom al- hadith, so he narrowed his criteria to exclude ahad hadith, hadith with only one Sahabi as a narrator.  Imam Malik, as we have seen above, relied on the judgment of the people of Madina, those who were born and raised in the City of Prophet, and who had contact with the greatest number of Sahaba.  Imam ash-Shafii did not specify criteria, however, he was the first to develop Usul al Fiqh, focusing on the principle that Islamic law is based on sources, Divine Sources and that one of those sources is the Sunnah.  Finally, after the strengthening of the position of hadith over ra’y opinion, Imam Ahmed was able to base his minhaj squarely on the foundation of the Qur’an and the Sunnah, and publish a collection of hadith, the Musnad of Imam Ahmed.

However, we cannot lose sight of the fact, when considering the minahij of fiqh of our madhdhaahib, that all of them were founded before Imam al-Bukhaari. Imam al-Bukhaari came up in a time of competition.  The Abbasid khalifate ushered in the methodology of “Ahl al Sunnah wa Jama,” moving the Sunnah of the Prophet SAW and the ahadith that recorded that Sunnah to the second primary source of law.  With the increased importance of ahadith in determining fiqh, the temptation to fake them to support a favored position became too strong for some.  Some, like the man who faked over 100 hadith extolling the virtues of certain surah of the Qur’an in order to encourage people to read our Holy Text, may have been for “benign” reasons, but no reason is benign if it leads to undermining the credibility of all of the hadith literature.  Because of all the fakes, promogated more often to support sectarian fitnah, our scholars had to devise methods for grading ahadith. Imam Abu Dawud and Imam Tirmidhi were two of the first.  Imam An-Nawawi was one of the most thorough.  Sheikh Albani is the most recent.  We value our muhadithuun, but we must recall that no single agreed-upon criteria for sahih exists.  The sahih of al-Bukhaari is vastly different from that of Albani.  Therefore, it falls upon the fuqaha and mujtahiduun to set criteria for ahadith strong enough to support a fiqh position. 

Persuasive or Secondary Sources of Shariah

We have established that our deen is based on revelation: upon the Qur’an and the Sunnah.  However, they were revealed over 1400 years ago.  How can Allah’s guidance for us remain applicable at any time between its revelation and yawm al qiyaamah?  Allah SWT has provided for that, of course.  By carefully studying the rights He grants us, and the responsibilities He places upon us, including prohibitions and penalties, we come to understand both the ‘illa and hikmah underlying Shariah law.  Just as we were created for the purpose of worshipping and serving Him, the law He revealed to us also has purposes, objectives.

The Maqaasid ash-Shariah are the objectives of the Law.  They form the basic purposes for which the Law is sent down by Allah SWT.  The Maqaasid are; promotion and protection of deen, promotion and protection of life, promotion and protection of aql, promotion and protection of dignity (lineage and honor), and promotion and protection of property.  Other scholars have cited other objectives, but they generally fall into one of these five categories.  For a thorough discussion of the Maqaasid please consult Jasser Auda's book, Maqasid Al-Shariah as Philosophy of Islamic Law: A Systems Approach, published by IIIT.

            Unlike Sunni thought, which has long viewed the classic interpretation of prior scholars as binding, particularly in matters upon which a “majority” of scholars agree or upon which Ijma is thought to have been achieved; Shia thought has long posited the necessity of “Nur al-Aan,” the Present Light.  While Sunni thought became mired in the closing of the proverbial “Doors of Ijtehad,”  Shia thought held that the decisions of the Marja’ or Mujtahid were only binding during his lifetime.  Once he was no longer present and was out of touch with reality, the mukhallif was no longer obliged to follow him, and was required to turn to a new, present marja'. 
            As a point of Islamic history, this difference began early in our Ummah.  From the early days, Abu Bakr (RAA) strove to stay true and to carry forward all of the practices of the Prophet SAW.  Following this model, the successors adopted a “common law” understanding of Shariah law that emphasized following the Sunnah or Legacy of the Prophet, SAW.  Decisions of Muslim scholars, judges and rulers, became binding on the community, just like the decisions of judges in the English and American common law systems.  Common law decisions become the law itself, apart from the legislation upon which it ideally is based.  Hence, we hear things in America like “judge-made law,” versus the statutes and laws passed by the legislature.  In Islam, the fiqh or human understanding of the law derived from the Divine Sources of the Qur’an and Authentic Sunnah, is similarly, scholar-made or qadi-made law, albeit supported by dalil from the Divine Legislation. 
            Ali ibn Abi Talib, the chief judge of Madina and last of the four khulafaa ar-rashidun, opposed this common law position, and posited what we refer to today as a “civil law” system, based on the code itself.  Judges’ decisions are not binding, although they may be highly persuasive.  The law is the legislation.  Judges are charged to apply the law to particular cases.  The only thing that is binding is the law, not the application of the law.  Today, Europe and many Middle Eastern countries including Egypt have civil law court systems.
            The Usool of the Maqaasidiyya reflects a more realistic understanding of legal systems, one that is capable of staying true to the Shariah Law, the Divine Law laid down by Allah in the Qur’an and Sunnah, and one that is also capable of remaining fresh and elastic so as to be able to meet all this forever changing world can demand.  It also unites the two streams of our jurisprudence by throwing open the doors of ijtehad, shut by the Ottoman legal system that codified Shariah in the Mejella.  Fourteen hundred years of common law precedent strangulated and stagnated our Shariah law system and resulted in apathy and jahilliyyah of the vast majority of Muslims, so much so that not only more complex areas of law such as zakat calculation and inheritance (warith) ignored and forgotten, but even the most basic aspects of fiqh al-ibadaat. 

Opening the Doors of Ijtehad

            When reform began with Rashid Rida and later with Muhammad ibn Abdul Wahhab and Hassan Al-Banna, one of the first branches of law that was given immediate attention was Wudu and Salaat.  Forget understanding how to make a contract or distribute inheritance, we had forgotten when, where and how to pray.  While the Ikhwan chose to take a jamhour approach to fiqh, following the opinion of the majority of scholars, and therefore, attempting to avoid unnecessary fitnah in fiqh; the Salafiyya developed a minhaj or methodology of fiqh influenced by the Usul of Imam Muhammad ash-Shawkani, the great Yemini Zaidi scholar.[3]

            The minhaj developed by the Salafiyyah is preferable in many ways to a jamhour position in that it presents a single consistent minhaj and not opinion based on a mish mash of minaahij. A single minhaj is obviously less confusing for the mukhallaf who simply wants to know what Allah SWT expects from him, just as the Bedouin who asked the Prophet SAW to simply tell him what he should do.  He believed firmly in Allah.  All he wanted to know is what to do.  The Prophet SAW taught him the five pillars of Islam, and he covenanted to do exactly that.  The Prophet SAW stated that if he did, that man would surely enter Paradise.

 In the modern era of world travel in hours rather than months or years, and the presence of a plethora of madhdhaahib and minaahij, the jamhour position is confusing for the mukhallaf. In the past, we were born, raised and died in one place, one madhhab, one minhaj.  Not any more.  We meet not just in Makkah, were “la jidal fi Hajj”, but in Europe, Australia, Canada and America. Because our fiqh may be derived using different minaahij and different dalil, the mukhallaf is placed in the position of: “Sheikh Wahid says this and Sheikh Ithnayn says that, and one uses this hadith and another uses that hadith, but Sheikh Thalatha says that that hadith is daif etc etc…” While the Ikhwan’s jamhour position helped initially to prevent fitnah in the West, the case is no longer so.  Our masaajid are increasingly ethnically and religiously diverse. One case in point: despite an excellent short pamphlet on how to view Ikhtilaf in Deen by Sheikh ibn al-Uthaimin, the Salafiyyah and the Tablighi Jamaat, who follow South Asian Hanafi fiqh, occasionally end up violently attacking each other because the two minhajan are almost diametrically opposed.

As for the Ikhwan who follow the jamhour position, disagreements over fiqh issues often lead to the two sides trying to “out jamhour” one another.  I have actually heard opponents of a particular sheikh’s opinion attack his dalil by accusing him of lying that the majority of scholars support his position.  Instead of actually addressing the evidence from the Divine Sources, the opponents stated that the Sheikh was wrong and that the majority do not say what he says, no statistics or lists of shuyuk and their opinions, or any other evidence, only blanket “ I’m more jamhour than you,” statements.

Moreover, both the Jamhouriyyah and the Salafiyyah have failed to open the doors of ijtehad.  Firstly, by following the jamhour, we are still following prior fiqh, often derived by scholars over 1400 years ago, in very different circumstances.  For example, early scholars held that the testimony of a Muslim was trustworthy by a rebuttable presumption, and, therefore, should be relied upon.  Over time our adab eroded and now, trustworthiness cannot be presumed at all.[4]  So, by following the jamhour, our fiqh remains the same, using the same dalil, and the old minaahij. 

The Salafiyyah have also failed to open the doors of ijtehad.  Although they have posited a new minhaj, that minhaj makes prior fatawa of shuyuk whom they recognize as authoritative, as binding; in particular, the fatawa of Ibn Taymiyyah, Ibn Qaiyyim al-Jawziyyah, and al-Jawzi, as well as the shuyuk of Saudi Arabia including Sheikh Ibn Bazz and Sheikh Ibn al-Uthaymin.  As a result, the fiqh remains the same, using the same dalil. 

While both minaahij have achieved some flexibility in dealing with new issues arising from new world circumstances, more so than the traditional four sunni madhdhaahibs, both lead to taqlid.  Surely a great irony - the two minaahij who cry the most about taqlid in the four traditional madhdhaahibs, have actually succeeded in entrenching taqlid further. 

The minhaj I have found best meets the needs of a united Ummah and actually opens the doors of ijtehad, overcoming blind taqlid, is one based on the Qur’an, the Authentic Hadith, and the Maqaasid al-Shariah, with highly persuasive secondary evidence from the opinions of the People of Madina, and the Judgments of Imam Ali and Qadi Shuraih.  Only the Divine Sources and the Divine Objectives are binding.  Anything interpreting those sources and objectives is persuasive.  Whether these supplementary materials are highly persuasive or not so persuasive depends greatly on the circumstances and discrete details.

As noted above, our deen is based on two Divine Sources, the Qur’an and the Sunnah.  The Qur’an is the verbatim word of Allah SWT, revealed through the angel Gibreel (AS) to the Prophet Muhammad (SAW), beginning with Surah al-Fatiha, and ending with Surah An-Nas.  It is Divine in origin, and constitutes Divine Legislation. As through the verbal transmission by qari and hufaadh, and the written transmission in the mushaf, we have direct knowledge of it. The Sunnah is the actual acts, words, and tacit understandings of the Prophet SAW.  And we do not have direct knowledge of it.  None of us were there.  In order to know the Sunnah, we must rely on reports.  These reports are of various qualities. Some have very short isnads or narration chaines, from one companion to one tabi’.[5] Others have extensive sanads, opening the doors to mistakes, misunderstandings, and even malicious lies.  The Qur’an is Qati evidence – certain.  The Sunnah is unknown.  The reports of acts, words and tacit understandings are found in seerah, taareekh, fiqh, and hadith.  The only reports subject to analytical criticism as to veracity are the hadith.  And hadith are not Qati unless they are mutawatir.  All other hadith are dhanni. 

             Because hadith are dhanni, the biggest issue to be resolved on the road to this minhaj is in the determination of authentic or sahih hadith. Although other madhhahib may consider hadith of lesser grade to be binding, the dhanni nature of hadith demands that the hadith must be very strong.  Otherwise, we may fall terribly into error and sin.  To ascribe something to Allah SWT is a grave sin.  To ascribe something to the Prophet is also a grave sin. [6] This is a serious matter.  Hadith must be either mutawatir or sahih to count as binding in fiqh.  All other grades of hadith are persuasively only.

 Admittedly, this area will take time to consider and develop.  However, one thing is certain, the laudable attempt by Shaikh Nasruddin al-Albani, despite its momentous effort and sincerity, falls well short of its goals.  Both Shaikh bin Bazz and Shaikh ibn al-Uthaimeen informed Shaikh al-Albani that his minhaj of looking solely to the Ilm al-Rijal, the Knowledge of the Narrators, was not sufficient to be able to call a hadith, sahih.  Not only can an isnad or chain of narrators be faked, but the books of Ilm al-Rijal come in two flavors, Sunni and Shia.  The great scholar and author of the authoritative book on Uloom al Hadith, Kitab Ma'arifat Anwa 'Ilm Al Hadith, Shaikh Shahrazuhri, notes that even in his time (1100 AD) it was not possible to correctly determine authenticity of a hadith by Ilm al Rijal alone.  How then, would it be possible for a modern scholar like Shaikh al-Albani to do this?

            For now, I will put forth the following criteria for determination of a sahih hadith.  The hadith should be found in substantial form in either the Muwatta of Imam Malik, the Kitab al Kafi of Muhammad Ya'qub Kulayni, the Sahih of Imam Bukhaari, or the Sahih of Imam Muslim; these are the earliest hadith collections in chronological order. It must meet the criteria of Imam Bukhaari as to isnad – in other words all the narrators should have actually met one another.  Its matin must meet the requirement of: "whatever (hadith) agrees with the Book of God (the Qur'an), accept it. And whatever contradicts it, reject it" It must not favor any particular sect, nor should it be overly predictive or critical of future sectarian divisions.  Material that should have been known to more than one person should be reported by more than one person. For example, prayers and communal actions should have been reported by many people, not just one.  Ahad hadith are only acceptable if the matin contains material that only that person could have or should have known.             
            All other hadith books and other material, be it Seerah, Tafsir, Taareekh, etc may be persuasive, but are not binding.  As for aathar and the opinions of Imam Ali and Qadi Shuraih, they are highly persuasive, but require careful study to firstly determine authenticity, and secondly to determine applicability in the current context. 
            However, our law is not solely textual.  In order to apply Divine Law in the present light, we have many tools which Allah SWT has given us.  He instructs us to use reason, aql.  It is most unfortunate that the excesses of the Mu’tazillah led Sunnis to abandon reason, and so leave us to either emotions and whims or absurd literalism.  Allah gave us reason, aql; unless you deny this, then He meant us to use it.  For this reason, in the absence of a clear text (nass), I agree to the use of rational methods, including Qiyas, and Maslahah al-Mursalah. 

Any scholar should understand that Qiyas does not mean just qiyas al-mithlu or analogy.  Qiyas means syllogism or Mantiq, i.e. Logic. Without an understanding of mantiq, one cannot correctly exercise ijtehad. However, Qiyas has its limits and should not be stretched too far.  Sometimes the textual method and the aqli method gives the same result, but using both methods and evaluating the resulting positions produces the most thorough and well-supported results. In fact, some fiqh texts such as Minhaj al Muslim, by Sheikh Abu Bakr Jabir Al-Jaza’riy, take this approach. So any new ruling should take into consideration both methods in extracting the fiqh from the sources and developing a sound dalil. 

We all need to keep in mind that the world of the Alim is gray.  In order to derive fiqh from the Sources, he or she must look at all the Sources and look at the totality of the evidence.  He or she must examine an issue from every direction.  As Sheikh Khassaf notes in Adab al-Qadi¸ to rule on an issue while being unqualified as to knowledge and intellectual skill will land the person in jehannam, and to fail to rule on an issue for which Allah SWT has gifted you the knowledge and the intellectual skill with land you in jehannam.  That lovely hadith we all know about scholars being rewarded twice for a correct judgment and even rewarded once for trying and being mistaken is only for those with the requisite knowledge and skill – not for someone who is unqualified – that person will end up in hell fire.[7]

The Role of Maslahah Al-Mursalah

As for Maslahah or Public Policy, and in particular, the qa’id, la darara wa la dirar – neither inflict harm nor repay one harm with another. While this is important and should be taken into account, it should not be overused or stretched too far either.  Many arguments for certain fiqh positions, including those regarding the permissibility of eating commercial meat or for the calculation of the hilal that signals the start of an Islamic month, seem to revolve around perceived Maslahah, either the Maslahah of our wallets or the Maslahah of our non-Muslim bosses.  In perfect reflection of Jalal Al-e-Ahmed's Gharbzedegih, our people scream about injustice in such and such a country, and then turn into red-faced quaking cowards before their Western overlords when it comes to fear of losing their flow of green paper.  How many of us end up working on Eid?  How many of us even bother to go to Eid prayer, or stay for the khutbah?  We would rather celebrate Halloween – Samhain in the old Pagan calendar -and Christmas.  So we dress our kids up as witches and black cats, instead of Ali Ibn Abi Talib or Umar ibn Khattab. (The permissibility or appropriateness of the later is not the issue here.)

            Maslahah is important, but it must be viewed within the context of the Maqaasid al-Shariah. Maslahah prevents inequities and difficulties in the law when the law, as written, would actually impede the objectives of the Shariah.  It is not meant to excuse us from exercising effort nor is it meant to pander to our laziness. Maslahah protects against darara – harm, not mere annoyance or inconvenience. When we focus on the Maqaasid, we can achieve results that best meet our individual needs, our collective needs, and our duties and obligations to each other and to Allah SWT.

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[1] “Spiritual inspiration” is another word for wahy and Allah SWT has told us that the Prophet Muhammad SAW was the khatmah al Anbiyya (Seal of the Prophets). So there is no prophet after him.  And the Prophet SAW has told us that all that remains of wahy is true dreams.  So one must question the opinions and intuitions of such people, especially where they conflict with revelation.  Today, groups surrounding such individuals abound, whether the Qadianis, the Ahbash, numerous sects of Ismailis or other Sufi-like groups, they are lead by charismatic leaders and do not follow the principle that the Qur’an and Sunnah are the primary sources of this deen.  I would add to this Da’esh, which follows tribal Arab traditions and the whims and fancies of leaders, not the Qur’an and Sunnah.  Shaytan calls to man from all sides of the path, and unfortunately, we often allow ourselves to be mislead by the promise of being better, smarter, more pious, more what ever, than others.  Kibriyya is the sin of Shaytan, and we are not immune from it. May Allah SWT protect us from misguidance.

[2] These reports are called hadith (sing) or ahadith (pl) in Arabic.  However, over time English speakers have used the term “hadith” to refer to these reports either singularly or in the plural.  In this paper, we have used the terms interchangeably.  However, “ahadith” always refers to the plural.

[3] Although the Salafiyyah have expended great effort to attempt to prove that Imam ash-Shawkani, a contemporary of Ibn Abdul Wahhab, was not a Zaidi, they have not been successful.  His writings show he supported Zaidi thought as far as leadership and authority in the deen.  What he disagreed with was the Zaidi school’s minhaj for deriving fiqh that emphasized blind taqlid.  Imam Zaid was a colleague and support of Abu Hanifa’s minhaj, and Hanafi fiqh texts, such as Al-Hidayyah, clearly state that the mukhallaf must follow a scholar and his fatawa blindly and not even ask about the dalil.  Imam ash-Shawkani and the Salafiyya, including that school’s great mujtahid, Sheikh ibn al-Uthaimin, have more than adequately disproved this position with ample evidence from the Qur’an, as well as the Sunnah.

[4] Even scholars from the 10^th century AD on began to opine that early evidentiary law needed to be revised to take into account the current behavior of Muslims.

[5] For example, Imam Malik narrates the Golden Isnad of Nafi’ from Ibn Umar.

[6] Surah Anam 6:144, and “Telling lies about me is not like telling lies about anyone else. Whoever tells lies about me deliberately, let him take his place in Hell.” Narrated by al-Bukhaari, 1229.

[7] My sheikh gets calls in the middle of nights requesting fatawa.  Should I let the doctors pull the plug on my terminally ill beloved mother?  I got mad at my wife and pronounced divorce.  Is this the third time?  If so, what now?  Most questions Imams and daiyyas answer are actually well settled. It’s “easy” to answer and look like a great mufti.  But as Suhaib Webb recounts, with real cases and real lives, fatawa and qada are not so black and white.  But by far the scariest part for me is the sudden realization that this actually calls for ijtehad and not reliance on the dalil of others.  I have to decide.  And the sinking feeling in the pit of my stomach tells me I am actually qualified to make such a effort on this issue, and if I do not, I will have betrayed my responsibility to Allah SWT and to His Ummah.  I have no choice.  It’s frightening. Sometimes I end up crying my heart out.  If you do not have the same fear, you are not qualified.  

Indigenous Islam for an Ambidextrous World

Hay un Planeta de Ambidextrous

39:5. He created the heavens and the earth In true (proportions):
He makes the Night overlap the Day, and the Day Overlap the Night:
He has subjected The sun and the moon (To His law):
Each one follows a course For a time appointed.
Is not He the Exalted In Power—He Who forgives
Again and again?



The verb in this ayat, yukawwiru, indicates that our earth is round.  Al-ard kifatah - our earth is ovoid in shape - like a bumpy kufta. It has no sides, no left or right handed-ness, no left or rights positions, "isms" or parties. It is one, unified sphere, it is ambidextrous.

Upon this earth, Allah SWT has placed us as khalifah.  Successors to the malaikah who once cared for it, we are the guardians and protectors of the earth.  In the past, we were only capable of guarding and protecting a small portion of this wide earth's surface.  Before we domesticated horses, this truly was only a small portion - the distance we could walk in a day, perhaps.  This is evidenced by the discussions among scholars over the matla' for moon sighting.


In regards to moon sighting and fasting the month of Ramadan, Kurayb said: Umm Fadl, daughter of Harith , sent him (Fadl, i.e. her son) to Mu’awiyah  in Syria. I (Fadl) arrived in Syria, and did the needful for her. It was there in Syria that the month of Ramadan commenced. I saw the new moon (of Ramadan) on Friday. I then came back to Madinah at the end of the month.  Abdullah ibn Abbas  asked me (about the new moon of Ramadan) and said: When did you see it? I said: We saw it on Friday night.  He said: (Did) you see it yourself?  I said: Yes, and the people also saw it so they observed fast and Mu’awiyah  also observed fast.  Thereupon he said: But we saw it on Saturday night. So we shall continue to observe the fast until we complete thirty (fasts) or we see it (the new moon of Shawwal).  I said: Is the sighting of the moon by Mu’awiyah  not valid for you?  He said: No; this is how the Messenger of Allah  has commanded us. Yahya ibn Yahya was in doubt (whether the word used in the narration by Kurayb) was Naktafi or Taktafi.(Sahih Muslim Hadith 2391).


Scholars refer to the ittihad al-matla' or local sighting zone for the hilal as the area where people will fast and pray Eid together, and should be less than the area where one would perform qasr in salat while travelling.  While some feel this is an exact distance, in fact the best interpretation is that this distance depends on certain factors. In the time of the Prophet SAW this would be the distance one could travel in a day.  One factor here is whether you would have to sleep overnight away from home.  If you could go and return on the same day, then you were not traveling.  Today that distance is far greater because of the automobile. And with the airplane, an even greater distance is possible.  If one takes a commuter flight to New York from Washington, DC for example, can one pray in qasr?  Another consideration for prayer is regularity and the regular sphere of your daily movements.  If this is the norm for you, you are not "traveling" outside of your usual sphere.  

Today, scholars talk about global matla' for moonsighting.  With modern communication, this is possible.  So we can accept a moonsighting from any point east of us, and even points west if they are communicated to us before midnight in our local time.  

Thus, today, we are capable of guarding our entire globe and coordinating efforts to do so.  Recall that mankind was tasked to be khalif of the earth, not just Muslims. And as khalifa, we find that as Muslims, we are not the majority upon this earth.

Dar Al-Islam

Back in the day, Muslims used to refer to the lands where Muslims governed and had the power of enforcement as "Dar al-Islam," and the lands where non-Muslims governed and had the power of enforcement as "Dar al-Harb."  Some, including my Sheikh, Dr. Mohamad Adam El-Sheikh, have questioned whether these attributions still apply.  Today, many nations have populations where the majority of the people have "Muslim" names.  But, is having a "Muslim" name sufficient to assume the person is Muslim?  In America, many African Americans choose "Muslim" names because the name is associated with Africa, or the parent likes the meaning of the name. Case in point, Barack Hussein Obama.  Despite the rhetoric of the alt-right, Former President Obama is not a Muslim.  He may be sympathetic and respectful to Muslims, but he has repeatedly stated he is not.  He is free to be what ever faith he professes.  May Allah guide him.

So is there a Dar al-Islam today?  The Middle East, Africa and Asia are replete with countries where mosques are built and people practice Islam, but how many states have Shariah as the law of the land?  Some have codified pieces of the law, snippets such as inheritance, marriage and divorce law, and usually only if it benefits some interest group.  Only two states profess to have Shariah law as the law of the land, Saudi Arabia and Iran.  But, in Saudi, the law is not codified.  While this is not really an issue, Shariah is a living legal system, subject to continuous scholarly ijtehad and application (qada'), it does make due process problematic.  Too often, judicial decisions are subject to the whims of amirs and political considerations.  Shariah is a legal system between common law and civil law.  Partly code based, and partly precedent-based, Shariah allows for greater flexibility than American and English law, but more predictability than European law.  

Analyzing the decisions of courts in Iran and Saudi, however, raises questions as to whether these states are competently following Shariah law and its Maqaasid objectives.  Some the punishments in both countries have been harsher than Shariah allows.    The harshest form of whipping proscribed in the Qur'an is for zina, one hundred lashes. Yet, a court in Saudi ordered the blogger, Raif Badawi, was sentenced to 10 years in prison and 1000 lashes.  Badawi was accused at first, of insulting Islam, and later, for apostasy, because he criticized religious figures and called one of Islamic universities, Imam Muhammad Ibn Saud University, "a den for terrorists."  Such behavior at most is slander.  Slander of a non-sexual nature is subject to ta'zir discretionary punishment.  If the slander is of a sexual nature, it is Qadhaf, and subject to 80 lashes, maximum, set by Allah in the Qur'an.

24:4: And those who launch A charge against chaste women,
And produce not four witnesses (To support their allegations),—
Flog them with eighty stripes; and reject their evidence
Ever after: for such men Are wicked transgressors;—

As for Iran, the continued use of torture by secret police, reveals the true depth of Islamic adherence by its regime.  The Prophet SAW forbade torture because he understood that it produces false fruit. People will say anything to stop the pain, including out right fabrications. More than a decade ago, Star Trek: TNG explored the issue of torture.  Captain Pickard (Patrick Stewart) was subjected to torture over and over.  The tormentor told him all he had to do to make the suffering stop was to say, with conviction, that there were five lights behind him, not the four that were actually there.  In the end, Pickard is saved before he breaks, but once safe, he confesses that he was just about to say it - to break, to see what was not there.  (The program is called "Chain of Command.").

What do people like Dick Cheney and Iran's Ayatushaytans want from torture?  Causing others to suffer, to watch them bleed, scream, die, what do these sadistic monsters get out of it?  Feelings of power - Allah SWT is more powerful, the Most Powerful; sexual-sadistic pleasure - well that perhaps is the motivation isn't it.  Why did ordinary Roman citizens watch people gets hacked to pieces, disemboweled, and eaten by animals, on the floor of the Colosseum?  Why did the Mexica/Aztecs flay young girls alive and wear their skins?  

Is this Islam?  Islam teaches us to not even sharpen a blade in front of a goat before zabiha, but we seem to revel in painful and violent methods of killing. And we find any excuse to kill - apostasy or heresy.  It's so easy to label. And the label absolves us from having to worry about it; it's justified. Or is it?  Are you so sure?  

Notice in the ayat above, those who accuse others of something without proof are punished almost to the same extent as those who commit the crime for which the accusers have accused.  And their testimony may never be trusted again.  They are Fasiqun - wicked.  

The point is, where is Dar al-Islam?  There was a time when such a place existed; in the time of Rasul Allah, in Madina.  But, today, there is no nation where Islam prevails and Muslims are in the majority.  Oh, yes, in the Middle East, there are mosques and Muslims, but are they in the majority?  Let's consider Egypt.  Look at the government, look at the majority of the people.  Do they have any religion, or are they like most of the people around the world, worshipers of themselves - enamored by all that glitter, by cell phones and facebook, by twitter and entertainments galore, techno-zombies lost in their own fantasy lands.  

Muslims are not in the majority anywhere, on any particular piece of geography.  Dar al-Islam exists only in our centers and Islamic institutions, in our families, in our homes.  And Dar al-Islam does not come about simply by having a bunch of Muslims gathered in one place, but by the Islamic connections we make between us.  Our behavior toward all others is what creates Dar al-Islam.  Da'esh and FBI agent provocateurs want you to think you have to go over seas and "join" some group in "Dar al-Islam."  I have heard this rhetoric for over 25 years from Salafi preachers, who, curiously, want you to go over there, but they are going to stay here.  For da'wa, or for a paycheck from the FBI?  

But, Dar al-Islam is not over there...It's here - with you.  

Islam is Indigenous

We hear it all the time, "everyone is born a Muslim..."  So, if this is so, everywhere is Dar al-Islam.  

Islam is the world's indigenous religion - al deen al qayeem - the most ancient and original religion, our fitrah.  We are born with innate understanding of right and wrong.  Upon this foundation, Allah SWT builds structures of morality, right action, adab-character, and justice.  He gives us freedom of will, equal human dignity and justice.  These are our rights as men and women.  Impingement of these rights by any man or group of men is haram.  The purpose of Islamic society is to protect these rights.  

Ideally, we would live in a society that guaranteed these rights.  Given that Islamic Shariah was sent down by Allah SWT to achieve that goal, Shariah is the best legal code to apply in creating a just government and legal system.  Where we can, we as Muslims, should prefer to apply Shariah.  In our Wills, contracts, transactions, dealings with all others, we should try to apply Shariah principles.  And this we can do in the United States and in part of Europe.  We can marry, inherit and divorce under Shariah in many nations including Israel and Ethiopia.  In fact, Muslims often have more rights to follow their religious law in non-Muslim countries, than in so-called Muslim ones.  Just try to pray five times a day in Morocco.  

However, even if the majority of the leaders in a government were Muslim, that would not give us a green light to impose Shariah law.  La Ikraha Fi Deen - there is no compulsion or force in matters of deen.  You cannot impose Shariah on non-Muslims, period.  The Prophet SAW allowed Jews to decide their own affairs under their religious law.  The Dustur al-Madinah formed a compact between the Prophet, his muhajireen companion, and the people - both Arab and Jewish, of Madina.  The people agreed, voluntarily, to be bound by the judgment of the Prophet SAW in disputes between communities.  But, even when he was asked to judge between individuals in the Jewish community, he used Jewish law.  An example is his adjudication of a case of zina.  The Jews brought the case to the Prophet, perhaps thinking he might be more lenient.  The Prophet SAW called for the Jewish law books and had the Rabbis open the book and read the page describing the punishment for zina.  They tried to block the text with their hands, but Abdullah ibn Salam told the Prophet SAW what they were doing and read the applicable text, prescribing stoning.  

This example is important for another reason. It reveals that legal authority is based on a social contract.  We voluntarily agree to be bound by a legal system.  When we ask to have our rights protected, we also agree to be responsible for our own actions.  When we come to America, and seek the protection and operation of its laws, we also agree to be bound by those laws ourselves.

Under an Islamic social contract, non-Muslims used to pay jizya.  This was a tax paid by non-Muslims seeking the protection and benefits of the Islamic state.  If the individual served in the military and participated in protecting the rights of all the citizens, then he was exempt from paying this tax.  

Our Dustur al-Madina and development of Islamic society during the Khalifaat period shows that Islam adheres to a paradigm that is most respectful of human rights, human equality, human freedom and human justice.  Certainly, we cannot deny that some governments were unjust.  Mu'awiyyah, Yazid, Marwan and Hijjaj were tyrants.  Later Abbasid Khalifs tortured and killed scholars.  But the model promoted by scholars, the most knowledgeable of this deen and the most independent of special interest groups, was of freedom, justice and equal dignity.  

Such a society focused on justice is a far cry from one based on imposition of power from the top down, for the benefit of the ruling group.  Colonialism saps the life out of one people for the benefit of another people.  Like its economic companion, Capitalism, which relies on hording of resources by the ruling elite, and the enslavement of the masses in debt, colonialism is based on kibriyyah, on the sin of Shaytan - "I am better than him."  The colonialist does not belong to the world, the world belongs to him. He is not a part of society, he is on top, and you are on the bottom. He is foreign, imposed from outside, alien.  He is not indigenous.

Islam does not support such a paradigm.  It supports indigenousity - the idea that we are one ummah, connected to one another, responsible to each other and for each other.  In salat, we pray together; in zakat, we support one another.  We build societies, and we become a part of the world in which we have been placed as khalifah.

Some Muslims shy away from talking about the history of a place prior to Islam.  They focus on the Seerah, if they are Sunni, or the time between the death of the Prophet SAW and Karbalaa, if they are Shia.  Some do not want to talk about the history of India or Persia or Rome or Egypt.  Why is their history important; they were pagans.  They were humans.  They preceded us on the land. Allah SWT tells us to travel through the land and see what happened to the people before us.

In Iraq, long ago, the people of Uruk built a great city.  They farmed the marshes and were able to provide food for a huge population.  As wealth increased, some had more than others, and some gained political power.  They rose to become kings, and supported religious leaders who supported them.  Those religious leaders told the people the kings were divine, special, more than human.  The kings and the religious leaders exploited the people and grew richer and richer on the backs of their labor.  But then the system began to crash.  The south of Iraq is a fragile area.  Over farming and draining of the marshes for fields caused the marshes to dry up, leaving a great dust bowl.  Saddam Hussein did the same thing in the '80s.  So, Uruk and its great city fell to the earth's first environmental disaster.  

What a lesson, but you have to know history to learn it.

The indigenous perspective is not imposed from without.  It arises out of the soil around it.  Indigenous Islam in Iraq will come from the dust of Uruk, Kufa, Basrah, Mosul, Najaf, Baghdad and Fallujah.  Indigenous Islam in Iran will rise from the gardens of Qom, Shiraz, Mashshad, and Tehran. Indigenous Islam in America will rise in New York, Washington DC, Florida, California, Northwest Arkansas, Phoenix Arizona, Peoria Illinois...  It will rise when American Muslims - those born and raised here, those who study the history of the people who came before them, Native Americans, European Americas, African American, Hispanic Americans, and we learn from these people, not just from history books, their stories, their lives, and hopes and dreams. When we, American Muslims, pick up the legacy they gave us and add in the legacy of our Prophet SAW and all the Muslims scholars and thinkers who have preceded us, and create an Indigenous Islam, born of American soil, and air, and water.  Not imposed from without by a colonial mindset of ethnic or madhhabistic superiority, but born of the indigenous Islamic understanding of freedom, equal dignity and justice. 

Hay un planeta de los indigenos.

Ramadan: A Month of Opportunities

Welcome Ramadan!



2:183. O ye who believe! Fasting is prescribed to you
As it was prescribed To those before you,
That ye may be among those with taqwa,—

Al Hamdu lillah! Every year we are blessed with a very special opportunity, an opportunity to increase our taqwa.

What is taqwa?  Many have defined it as "fear of Allah,"  but this definition may give the wrong impression in the context of modern English, an impression that Allah is harsh and merciless, and Muslims should be as well. However, Allah SWT has specifically told us that He is ar-Rahman, ar-Rahim - His is the most complete form of Mercy; and in a hadith, He has told us that His Mercy outweighs His Wrath.

In older forms of English, the word "fear" not only meant being scared, but it also meant a feeling of awe, wonder and great respect.  However, in Arabic, this meaning is more attributable to "khashiyyah Rabbahu". The meaning of taqwa, then, can best be expressed as "grasping the firmest hand-hold," to grasp and cling to Allah with all one's strength (qawaya). And it is during this blessed month of Ramadan that we have an opportunity to increase out taqwa.

Certainly, fasting, the essential element of Sawm Ramadan, increases our taqwa.  In the ayat above, Allah SWT reminds us that fasting has been prescribed for those before us.  All religions prescribe fasting.  Jews fast Yom Kippur and the High Holy Days, Christians fast Lent, Hindus fast for vows and on other occasions, Guatama Buddha fasted also.  Fasting has long been recognized as a way to cleanse the body, mind and soul.  Even non-religious people fast today for the same reasons. 

Fasting increases our taqwa by reminding us of the bounties we are blessed with and who provided those provisions.  Often we do not appreciate what is in front of us.  But, when it is gone, we suddenly miss it - appreciate it.  So, during Ramadan, the food is missing for part of the day.  Those chips we snack on while typing away on our laptops and cell phones, they are missing.  That lunch we munch on without thinking, it's missing.  What if it were missing every day?  Anyone who is capable of reflection cannot fail to begin to feel gratitude for what, eleven months of the year, we take for granted. 

As Ramadan goes on, our days of fasting and nights of salat and tarawih remind us from where all those bounties come.  Factories don't create chips - they manufacture them from potatoes, which a farmer grew from a seed crop.  We should be reminded of all the hands that touched that food from the seed spud to the grocery shelf.  Without all those people, we would not have the food.  We should be grateful to them.

But, there is one more link in that supply chain - the One who made all of that possible every step of the way.  He created the seed spud; He watered the plant in the earth; He created the fertile soil; He created the worms and creatures that enriched it and aerated it; He created the birds who ensured that the worms did not get out of hand and become too many; He created an entire web of being, balanced and well-managed; He created the people who cut the potatoes, fried and salted them, put them in the bag, shipped them to your store...  He created you.

He also blessed you with an income - with the money to purchase the food.  Your boss did not do that.  Ramadan is a time to place gratitude where it belongs - with our true Rabb. 

And when we remember our Rabb - our Ultimate Benefactor - we realize how precarious is our existence.  We cling to Allah SWT with all our might.  We gain taqwa.

The first part of Ramadan is about Mercy.  We see that above.  At the end of this first period, we realize how merciful Allah SWT is, and we also begin to reflect that mercy toward those around us.  Here is our first opportunity.  We can express mercy ourselves.  Not only can we help feed the poor and those in need, but we can treat others mercifully in all situations.  If someone cuts you off in traffic, instead of getting mad and cursing them, think mercifully.  Respond positively, smile, wave - it just might surprise them.  It might make them think. 

People today have been raised to be selfish, self-centered, absorbed in a world of their own creation.  They are completely detached from Allah, from His creation, and from people.  They may be screaming to someone on the phone, but in reality, they are in their own world.  And in their own worlds, they are never merciful, never grateful, - they are only self-ful.  That act of mercy forces them back into reality.  In their "my-way-or-the-highway" world they live in, everyone is just like them - a singularity without any connections.  It's an angry, bitter, world.  They expect you to be like them - to spew hate.  If you spew hate, then they are justified in treating you like dirt.  It is easy to hate nasty people. 

Look at us Muslims.  In order to justify hatred and murder, we judge people to be "apostates."  Allah SWT has absolutely forbidden killing, except for specific reasons set by Allah alone.  Allah SWT created us, only He can permit our destruction.  If someone is killed unjustly, Allah SWT alone will deal with the murderer.  Think on that very carefully. 

We are no better than anyone else these days.  We are just as much a product of millennialism as anyone else.  But, we should be better.  We are the best ummah from among mankind, rights?  We have the potential to be, but are we?

We will be if we learn the lesson of the first part of Ramadan - mercy.  Abu Bakr, RAA, had a relative living with him.  He provided that man with food, shelter, everything.  When the people accused Aisha of infidelity, this man was one of the first to make lewd accusations.  Abu Bakr was furious.  He refused to speak to the man.  The Prophet SAW heard about this and spoke to Abu Bakr.  He told him, "wouldn't you want Allah to be merciful to you?" 

Allah SWT then revealed this ayat:

24:22. Let not those among you Who are endued with grace
And amplitude of means Resolve by oath against helping
Their kinsmen, those in want, And those who have left
Their homes in God's cause: Let them forgive (be merciful) and overlook,
Do you not wish That God should forgive you?
For God is Oft-Forgiving, Most Merciful.

Think on this.  This relative, who had been "sponging" off Abu Bakr, sleeping in his house, eating his food, had just insulted his honor and his house by accusing his daughter of infidelity - of zina!  What could be worse?  What would you do in such a situation?  But is we would love for Allah SWT to forgive us some day, on that day, yawm al qiyammah, then we must also forgive.  And not just forgive, but lyasfahuu.  Sometimes we forgive people, but we never forget.  It stays in the back of our minds forever.  It clouds our thoughts about that person forever.  Allah tells us to leave it, overlook it, treat it as it never happened.  Wipe that cloud from your mind and give that person a fresh start. 

The amazing thing is that Abu Bakr responded immediately.  He didn't say what most of us would say..."But, you don't understand, he did this, he did that....."  In other words we spew justifications for hate.  Allah SWT does not use justifications - and who would be more justified given our lack of gratitude?  What justifications do you have really?  For every person who has dissed you, you have dissed someone else.  Do you want mercy in the end? 

Allah says:  "walya'fuu"  then show them mercy

Allah is the Oft-Forgiving, the Most Merciful!

A Very Special Opportunity

This year we are blessed with a very special opportunity.  This year we, as Muslims, have been the object of a great deal of hate.  Hate crimes against Muslims have increased dramatically as some segments of our population have been emboldened into hate-filled action.  Muslims have been verbally attacked, and physically attacked.  Some have been murdered for no other reason than the murderer thought they were Muslim. 

But the hate attacks are not just coming from one side.  Muslims are being attacked by people claiming to be Muslims.  Again, hate fuels ridiculous justifications for murder.  Unfortunately, our youth, living in their little virtual worlds, are drawn into the brainwashing machine of Da'esh and other hate groups.  Shaytan is having a field day. 

The Prophet SAW told us that the shaytans are chained up during Ramadan.  True.  But you have freewill and you can unchain them yourself.  The propaganda is still out there, and some of shaytan's minions are out at the masaajid right now trying to recruit youth.  Some are paid by governments, some are just brainwashed zombies.  But they are out there, poking your kids in the chest, using domination tactics, creating doubt and not letting your kids think or use their minds.  Never forget, hate is the tool of Shaytan. 

Keep your eyes on the prize - Jennah, and use this special month to overcome hate, practice mercy, and develop taqwa.

Show mercy to all.  To those of other faiths or those with no faith, show mercy.  Practice the adab of the Prophet SAW, who was always kind, generous, gracious, friendly, warm, caring, professional, and sincere.  Smile and be friendly to all people.  If they abuse you, be even friendlier. Do not try to have a comeback for their verbal abuse. (You can imagine about that later, if that helps any). Say "a'uduu billahi min ash-shaytan ir-rajim," and make du'a to Allah that they will find guidance. 

For those who claim to be Muslims, remember they are using brainwashing tactics.  DO NOT TRY TO RESPOND OR HAVE A COMEBACK FOR EVERYTHING.  The best response is to ignore them and walk away.  They will pursue you.  They may call your rude or that you lack adab - walk away.  When Shaytan taunted Ibrahim at Makkah, Ibrahim threw stones at him and walked away.  The person confronting you is not Shaytan himself, so stoning is not appropriate, but walking away is. Say "a'uduu billahi min ash-shaytan ir-rajim," and make du'a to Allah that he will find guidance.  This might anger the person, if Shaytan really has a hold on him.  In that case, call security, the police, the authorities and file a complaint. 

Do not feel that it would be inappropriate to call the police when confronted by those under the brainwashing of Shaytan.  This is not the same as a brother or sister who is mistaken about something, or who may even be committing a sin.  When a person is a Muslim, we cover their faults and give them advice (nasihah).  We take care of things "in-house" as much as possible.  We reach out to Imams, trusted advisors, elders, if necessary.  But, these attacks by Shaytan on our community require a different response.  In Europe and North America, enforcement authority is in the hands of the police.  We pay "jizya", what they call taxes, for the protection of the state, just as the ahl-al-Kitab and those under protection pay jizya in an Islamic state.  And considering some of these people are being paid by the state to infiltrate and entrap our youth, we should not hesitate in the least to hold these people accountable for their abusive actions.

So this Ramadan, let us take advantage of this special opportunity to overcome hate.  We must begin by removing hate from our own hearts and replacing it with love of Allah.  When we do, we will be able to present a face of Islam to others that is loving, respectful, peaceful, full of sakinah, and full of the Noor of Allah.  Our children will also see this face.  We can also show people that this love is an active love, inspiring our actions in serving the community through charity and helping others.  Serving in the community is something we can do with our children too. And helping others connects us to real people, not virtual ones who ultimately do not care about us.  People who do activities together build bonds, and the more we act together, the stronger those bonds become. The stronger the bonds between individuals, the strong the society around us.  This all begins with taqwa, clinging to the rope, that firmest hand-hold, linking us to Allah SWT.

Family Opportunities

For parents, this is a great opportunity.  Why send your children and teens to the masjid, dropping them off and heading out to iftar parties, when you and your child can learn more about your deen together.  Why not find out how to address the hate-mongers of all stripes.  Strengthen your own iman and taqwa.  And ensure that your child is not falling in with agent provocateurs and hate-mongers.  Don't end up like so many parents these days, with your child's face plastered all over the TV as the latest terror bomber.  And then you have a camera in your face trying to explain that your son was not that way.... How do you know?  Did you go to the masjid with your son?  Or to that iftar party...

Ramadan is a wonderful time to build families.  In the past, we might have said, "strong families," but today, with each of us living in our own virtual worlds, just building families would be a start.  The family is the first place we connect with other people, the place where we learn love.  If we are all in our separate spaces, we do not learn love and we easily succumb to hate.  Ramadan is an opportunity to spend time together, with no distractions, and only the Qur'an in Tarawih for entertainment.  In fact, the word, tarawih means "entertainment." 

And do not pretend you know about your deen.  Too many "Ramadan Muslims" and regular attendees to our masaajid, do not know the deen or fiqh.  Yet, they parade around like shuyuk.  Only Allah is Alim, you are not.  When it comes to the knowledge you need to perform your job, you went to school, college, graduate school, etc.  This is knowledge you need to perform your 'ibaadah and establish your relationship with Allah - far more critical knowledge really.  So, what did you do to get knowledge of deen?  Hear some talk from your parents, friends, some TV evangelist/da'ii...  Oh, you read a book once - mabruk... Most don't read these days.  That makes you a makhallaf, not a mufti.  In fact, the schools of dawa in Arabia do not produce muftis either, although many of the graduates seem to think so.  We only have a handful of schools producing muftis within a madhhab in the Sunni world.  None of these schools produce mujtahids.  (The Shia have three hawzah in an-Najaf, Qom, and Mashshad, as well as some smaller hawzah producing ayatollah (mufti within the Jaafari madhhab, and a handful of marjaa at-taqlid/mujtahids).

So, instead of issuing fatwa and parading around a masjid you seldom attend outside of Ramadan, sit with your children and study with a truly knowledgeable person.  How do you know when a person is truly knowledgeable?  You know by his character.  First and foremost, he understands that he has no knowledge and only Allah is Alim.  Any understanding he has, Allah SWT has shared with him, and for that he is most grateful.  So, such a person is humble, sincere, honest, and just.  When discussing fiqh issues, he gives the dalil for his position. Never accept a position without a dalil - and "sheikh so and so said" is not a dalil.  If "sheikh so and so" was a sheikh, he gave a dalil. 

Now, we are aware that scholars may differ on a position.  In other places, we have addressed ikhtilaf.  However, in this context, we must understand that there are difference approaches and methodologies for extracting fiqh from the sources.  As long as a dalil is reasonable, it is acceptable.  We may not agree, we may find another position stronger, but as long as the dalil is reasonable, we cannot condemn a person for holding that positions and holding that position should never expose that person to verbal abuse, harassment or hate.  NO WUDU POLICE ALLOWED!!! This kind of harassing behavior drives people from the masaajid, and is unIslamic.  Remember how the Prophet SAW treated the beduin who urinated in the mosque.  Well, if you do not know this hadith and its implications, you have no business pretending to be a faqih.

Community Opportunities

 Speaking of our masaajid.  Many of our mosques and Islamic Centers and their controlling boards and members want to build the mosque and the Islamic school.  They are so focused on these things that they sometimes neglect teaching Islam.  We have hundreds of mediocre Islamic schools, but many of the children who attend are ignorant of fiqh and of deen.  Yes, they can make wudu and prayer, but they have no understanding of who they are praying to and why.  When coupled with the literalist dogma popular for the last hundred years or so, we have lost our spirituality at the expense of mechanistic posturing.  Only now, when this dogma has been stretched to its extreme, have people begun to look at a fuller picture of Islam.  Al-hamdulillah, we hope this trend continues. 

Our masaajid need to take a more active role in educating our adults.  All of the lessons the schools try to teach children are wiped out by parental behavior.  A sincere teacher may give a lesson on honesty, and then little Muhammad sees his father lie to friends, cheat customers, and cry "wa llahi wa llahi" to everyone else.  Who influences little Muhammad more?  Your child is not going to grow up like his teacher, he is going to grow up like you?  Who are you? 

Yes, some masaajid and shuyuk offer lectures and no one attends.  Yes this is a problem.  One solution is to help each other understand ikhtilaf.  Many do not understand why there are differences in fiqh.  For some, these differences put them off from attending lectures on fiqh.  So the first place we need to start is to offer lectures on usool al fiqh.  This does not have to be complicated, but such lectures do need to explain what fiqh is (the human understanding of the Law), how it relates to Shariah (the Divine Law), and why there can be ikhtilaf.  We also need to explain the basic minahij of the major schools.  We need to understand that these different methodologies naturally lead to different results.  And we need to emphasize that although we may prefer one school over another or one position over another, Allah Ta'ala Alim is our guide.  As long as a position is reasonable, we accept is as possible.

Then, once a person understands that ikhtilaf is natural and not necessarily a source of fitnah, we can explore the dalil behind various fiqh positions and enable a person to make informed choices.  We can then accept those choices and build respect and toleration of each other as members of an ummah. 

And all of this begins with that merciful month of Ramadan.  In Ramadan, we gain taqwa, we build connections to Allah and to His creation, we build families, we build our Ummah. 

We remind everyone that the second part of Ramadan is about forgiveness - Allah forgives us, and we forgive each other.  The third part of Ramadan brings us a reward.  Fasting is for Allah alone.  We could be showing off in prayer or zakat, but fasting, only Allah SWT knows and He rewards it with Jennah. 

May Allah SWT reward us all with Jennat ul-Firdaws.