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Social and Political Context
A scholar’s academic career and his contributions should be seen in the historical, social, political and cultural context of his times, especially his family background, the educational institutions where he studied and taught, his relations with his contemporaries and the prevailing climate of opinion.
Syria became a part of the Ottoman Empire in 1516. European machinations and intrigues played a major role in the disintegration and dismemberment of the Ottoman Empire. As World War I unfolded, the Ottoman Empire joined hands with the Central Powers (Germany and Austro-Hungary) against the Allies (France, Great Britain and Russia). The Allies declared war on the Ottoman Empire shortly after the outbreak of the war. In 1915 the British entered into a secret pact with the Sharif of Makkah, Hussein ibn Ali. The pact involved an armed revolt against Ottoman rule under the Sharif’s command, for which Great Britain and France would supply money, weapons and logistic support. In exchange, he was promised an Arab kingdom in the event of Ottoman defeat. The Sharif organized tribal groups from the Hejaz and Jordan and led them to attack Ottoman troops. By the end of 1916 the French had given 1.25 million gold francs to the Arab tribes who participated in the uprising. The British spent £220,000 a month on the Arab fighters, who were also provided with rifles and machine-guns. By 1918 the Arab troops succeeded in driving the Ottoman forces out of the Hejaz and other parts of the Arab region. Thomas Edward Lawrence, popularly known as “Lawrence of Arabia,” the British secret agent who played an important role in instigating the Arab revolt against the Ottoman Empire, wrote in 1916 that the Arab revolt would be useful to the British Empire because “it matches with our immediate aims, the break-up of the Islamic ‘bloc’ and the defeat and disruption of the Ottoman Empire”.
British and French troops seized Palestine in 1917. Amir Abdullah, who later became Jordan’s first king, fought on the side of the British during World War I against the Ottoman Empire. The British rewarded him for his loyalty by giving him a fixed stipend and the control of Jordan. Italy, which had joined the Allies against Germany and the Ottoman Empire, was promised a large part of southwestern Anatolia. By the time the Treaty of Sevres (1920) was signed, the Ottoman Empire had lost all the Arab provinces and ceded a large area of Asia Minor to the newly created Armenian state. France and Britain also backed the creation of an independent Kurdish state as part of the Treaty of Sevres, but the idea fizzled out. The withdrawal of Russia from the war and the victory of the Turkish nationalists saved Anatolia from being expropriated by Italy.
Though Britain and France had made a promise to the Arabs at the beginning of the20th century that if they rose in revolt against the Ottoman Empire and supported the Allies they would be granted independence, they did not keep the promise and the Arab region continued to be under British and French control. In 1920 a short-lived independent Kingdom of Syria was established under Faisal I, but after a few months France invaded Syria and deposed and expelled the king. Under a League of Nations mandate, Syria came under direct French rule.
In 1916, in the middle of the war, Great Britain and France, with the assent of imperial Russia, hatched a conspiracy to dismember the Ottoman Empire and to divide the territories that were under Ottoman rule between themselves. Mark Sykes, a British diplomat, and Francois Georges-Picot, a high-ranking official of the French government, were tasked with working out the modalities of the plot. Sykes and Picot drew a map, according to which the coastal strip between the Mediterranean and the river Jordan, Transjordan and southern Iraq were allocated to Britain, while Syria, Lebanon, northern Iraq and south-eastern Turkey would be under French control. Russia, according to the map, would acquire the Ottoman provinces of Erzurum, Trebizon and Bitlis in Asia Minor. The pact was kept hidden for more than a year until the Bolsheviks revealed it after the 1917 Russian Revolution. In addition to geopolitical and strategic factors, religious and sectarian considerations also played a role in the division of the Ottoman territories among the Allies. For example, France favoured the creation of a Christian-dominated state in Lebanon, which was sliced out of Syria. Sykes and Picot’s map suggested that Palestine should be given to Belgium, but on November 2, 1917 the British Foreign Secretary Arthur James Balfour promised the Zionist Federation of Great Britain “the establishment of a national home for the Jewish people” in Palestine. US historian David Fromkin, in his book A Peace to End All Peace: The Fall of the Ottoman Empire and the Creation of the Modern Middle East (1989), calls Lebanon, Syria, Jordan, Iraq, Israel and Palestine the “children of England and France.”
Syria gained independence from French colonial rule on 24 October 1945. However, French troops did not leave the country until April 1946. This period of French colonial rule, from 1920 to 1946, witnessed the rise of the anti-colonial movement and Arab nationalism in Syria. The Muslim Brotherhood, founded by Hasan al-Banna (1906-1949) in 1923 in Egypt, emerged as an influential social and political force in Syria in the late 1930s in the context of rising anti-colonial and nationalist sentiments. After independence, the Muslim Brotherhood was pitted against secular nationalists, Communists, Bathists and Nasserists. The Arab military defeat in the 1948 Israel-Palestine war enabled the Muslim Brotherhood to expand its urban base, particularly in Damascus.
In 1958 there was a short-lived political union between Egypt and Syria. The idea of the United Arab Republic, as the union was called, was mooted by the socialist Ba’ath Party and was envisaged as a first step towards the creation of a unified pan-Arab political entity. However, the United Arab Republic collapsed in 1961 when Syria decided to secede from the union following a coup d’etat. The Muslim Brotherhood supported Syria’s secession from the Egyptian-dominated United Arab Republic. In the 1961 parliamentary elections the Muslim Brotherhood won 10 seats. Following the coup d’etat by the Ba’ath Party in 1963, the Muslim Brotherhood was banned by the government.
Man of Many Parts
Shaykh Al-Zarqa was not a disinterested or arm-chair scholar. He was a man of many parts and was actively involved in a wide range of activities, including teaching, writing scholarly treatises, giving fatwas, participation in the nationalist movement and active politics, and social activism. Shaykh al-Zarqa was actively involved in the anti-colonial movement. In the 1930s he joined Al-Kitlah al-Wataniyyah (Patriotic Block), a representative group of prominent Syrian intellectuals and public figures who were committed to the goal of independence from French colonial rule. In his young days, Shaykh Al-Zarqa came under the influence of the Muslim Brotherhood. In 1961 he was elected to parliament on a Muslim Brotherhood ticket. He joined the government and served as a minister for justice and Awqaf.
Shaykh Al-Zarqa’s life and chequered career were considerably influenced by his wide-ranging experiences as a respected scholar and teacher of Islamic law, lawyer, mufti, public intellectual and consultant, and advisor to international organisations and academies as well as by his close interaction with scholars, lawyers, social activists and university-educated intelligentsia.
For centuries, Syria has nurtured a climate of cultural diversity and pluralism and tolerance and accommodation of different religions, sects, denominations and schools of jurisprudence. This ethos of tolerance and accommodation has been reinforced by the pervasive influence of Sufism on Syrian society. Shaykh al-Zarqa grew up in this expansive and inclusionary social milieu.
Academic Contributions
Shaykh Mustafa al-Zarqa is universally recognised for his outstanding and trail-blazing contributions to Islamic jurisprudence. His wide-ranging contributions to the field encompass scholarly works, fatwas, supervision of the voluminous and monumental Encyclopaedia of Islamic Jurisprudence (Al-Mausuah al-Fiqhiyyah), codification and reform of Islamic family laws in the Arab region, and participation in the deliberations of the Makkah-based Islamic Fiqh Council (Majma’ al-fiqh al-Islami).
Shaykh Al-Zarqa’s best-known work is Al-madkhal al-fiqhi al-aam, which was first published in 3 volumes in 1953 and has been reprinted more than 10 times. The 1967 edition was printed with a slightly modified title as Al-fiqh al-Islami fi thawbihi al-jadid. Al-Madkhal provides a general but authoritative and lucid introduction to the principles and methodology of Islamic law. It is a prescribed text in courses on Islamic jurisprudence in several universities around the world. It was translated into English in 2014.
One of the distinctive features of Shaykh Al-Zarqa’s works on Islamic jurisprudence is that they seek to interpret the fundamental tenets and principles of Islamic jurisprudence in the contemporary context and in terms of the current legal discourse and to emphasise the inherent dynamism of Islamic law. Shaykh Al-Zarqa sought to demonstrate that there was no conflict or contradiction between reason and Islamic traditions as exemplified in Hadith and Islamic jurisprudence. This point has been dealt with at great length in his book Al-aql wal fiqh fi fahm al-Hadith al-Nabawi (Reason and law in Understanding the Prophetic Traditions).
Some of Shaykh Al-Zarqa’s works deal with specific economic and social issues. These include Al fi’l al-dar wal-daman fihi (which focuses on torts and compensation), Aqd al-istisna (which discusses the legal dimensions of procurement contracts) and Aqd al-bai’ (which is concerned with sales contract). Shaykh Al-Zarqa’s book Nazariyyat al-iltizam al-aamah discusses the issue of rights and obligations within the framework of Islamic jurisprudence.
Shaykh Al-Zarqa had a special interest in the methodological principles of Islamic jurisprudence. He wrote an important book Al-Istihsan wal-masalih al-mursalah fil Shariah al-Islamiyah wa usuli fiqhiha, which focuses on the legal principles of Istihsan and Al-masalih al-mursalah. Istihsan refers to a method whereby a jurist decides to give precedence to a given legal ruling over other options. This is done after a careful weighing of the merits of all available legal options and with a view to reduce the hardships of people.
Some of Shaykh al-Zarqa’s books have been translated into English and French. These include An Introduction to Islamic Jurisprudence (2014), Worship in Islam (1980), Muhammad: The Perfect Model for Humanity (2007) and Ebadah en Islam.
Encyclopaedia of Islamic Jurisprudence
It can be said without any fear of exaggeration that the incredibly enormous corpus of works on Islamic jurisprudence, which has accumulated over the past 14 centuries, has no parallel in the annals of legal history. One of the distinctive features of Islamic civilization’s illustrious legacy of jurisprudence is legal pluralism. Legal pluralism is generally defined as a situation in which two or more legal systems coexist in the same society or social field. The contemporary discourse on legal pluralism takes little or no cognizance of the fact that a legal system may allow the coexistence of diverse legal cultures and traditions within its fold. This, for example, is the case with Islamic law.
Legal pluralism in the Islamic tradition is reflected in two distinct spheres: (i) the coexistence of divergent interpretations and schools of Islamic jurisprudence (ii) the recognition of the religious, cultural, legal and judicial autonomy of non-Muslim minorities living in Islamic state. The Prophet's Companions and the Followers had certain differences in matters of jurisprudence, legal pronouncements and religious rituals. Some of them recited the Bismillah aloud in prayers while others preferred to recite it quietly. Some recited the supplicatory invocation of Qunut in the pre-dawn prayers while others chose not to do so. Imam Shafi’i considered frogs, crabs and tortoises impermissible for consumption while some other jurists did not prohibit their eating. Imam Abu Hanifah was of the opinion that the quantum of blood money for a non-Muslim citizen of the Islamic state should be the same as that for a Muslim. Imam Malik and Imam Ahmad ibn Hanbal, on the other hand, held that it should be half of that of a Muslim, while Imam Shafi’i opined that it should be one-third.
What is note-worthy is that, by and large, jurists, scholars and men of piety in the early centuries of the Islamic era viewed legal differences in terms of convenience and ease for the common people. They never doubted the honesty, integrity and sincerity of their contemporaries. They never allowed differences in legal matters to affect inter-personal relationships and viewed the legal differences among their predecessors and contemporaries not as a bane or a hindrance but as a blessing in disguise. Sufyan al-Thawri, for example, used to say: "Do not say that the Ulama have differed in such and such matter; say, instead, that they have provided convenience and ease for the people (by their difference of opinion)." Abu Yusuf and Muhammad ibn Hasan al-Shaybani, the distinguished followers of Imam Abu Hanifah, had certain differences in matters of jurisprudence and legal pronouncements with their mentor. Yet, their opinions were incorporated in the corpus of Hanafi jurisprudence. Hanafi scholars and jurists have maintained that there is nothing objectionable if Hanafi scholars and jurists reach a consensus in respect of an extraordinary case in an extraordinary situation, whereby they give a legal opinion in accordance with the principles and tenets of the Maliki school of jurisprudence, rather than with those of their own Hanafi school. Thus, Hanafi scholars and jurists in pre-independence India gave a ruling, which was endorsed by the majority of ulama, in regard to the dissolution of a Muslim woman's marriage whose husband had left her with no trace of his whereabouts.
In the early Islamic period, some rulers sought to bring about uniformity and homogenization in legal matters under the auspices of the state. However, they were dissuaded by eminent scholars and jurists from doing so. During the caliphate of Umar ibn Abd al Aziz, it was suggested that he should bring about uniformity and consensus in respect of legal rulings, to which he replied: "I would not have been very happy if Muslim scholars had not had any differences in legal matters. The companions of the Prophet had certain differences in legal matters. Therefore, anyone who follows the precepts of any of the companions is on the right path". He then circulated an order through the Islamic territories to the effect that the people of every region should abide by the ruling over which the local scholars and jurists had reached a consensus. Once the Abbasid caliph al-Mansur told Imam Malik that he proposed to circulate copies of his books in every city and town, with the instruction that people should follow only those books. Imam Malik dissuaded the caliph from doing anything of the kind. He told him that people in different cities were following the rulings of local scholars and jurists and that it was advisable to allow this situation to continue. Likewise, caliph Harun al-Rashid told Imam Malik that he wished to have the latter's celebrated work Al-Muwatta to be hung in the Ka'bah, so that the Muslim masses could follow it in a uniform manner. Imam Malik advised him not to do so.
Islamic law makes it incumbent upon the Islamic state to ensure the safety of its non-Muslim citizens and to protect their religious, cultural, and judicial autonomy. In fact the Islamic state assumed responsibility for the maintenance and even defence of Jewish, Christian and pagan identities. The protection of minority rights under the Islamic dispensation has no parallel in the annals of history.
The literature on different schools of Islamic jurisprudence is incredibly vast and variegated and it is well-nigh impossible even for scholars of Islamic law to be conversant with it. The need for compiling a comprehensive and accessible encyclopaedic compendium on Islamic jurisprudence has been felt for the past several decades. An international conference on Islamic jurisprudence held in Paris in 1951 emphasized and recommended the preparation of a compendium on Islamic law and urged Muslim countries to take an initiative in the matter. In 1956 a committee was set up at the Faculty of Shariah at Damascus University for preparing the blueprint of the project. Shaykh Al-Zarqa, who was then teaching at the university, was closely associated with the committee.
In 1961 the Egyptian Ministry of Awqaf took over the project on Al-Mausuah al-Fiqhiyyah and published 24 volumes over a period of six years. In 1967 the project was taken over by the Ministry of Awqaf and Islamic affairs, Kuwait. Shaykh Al-Zarqa was requested to oversee and supervise the project. The project has been completed in 45 volumes. The Delhi-based Islamic Fiqh Academy has embarked upon the translation of all the 45 volumes of Al-Mausuah al-Fiqhiyyah into Urdu, with financial assistance from the Ministry of Awqaf and Islamic affairs, Kuwait. The Academy has already translated and published 12 volumes and work on the remaining volumes is underway.
The Encyclopaedia of Islamic Jurisprudence (Al-Mausuah al-Fiqhiyyah) is an invaluable reference work, comprehensive in scope, representative in character, of high academic standard, written in a lucid style and alphabetically arranged. The views of the four main schools of Islamic jurisprudence, which are followed by nearly 90 per cent of the world’s Muslim population, are well represented in the work.
Fatawa
Shaykh Al-Zarqa gave dozens of fatwas on a wide range of issues. A collection of his fatwas entitled Fatawa Mustafa al-Zarqa, was published from Damascus in 2001.
Muslim scholars and jurists, such as Al-Ghazali, Abu Islaq al-Shatibi, Ibn al-Qayyim and Izz al-Din ibn Abd al-Salam, have dwelt at length on the guiding principles and higher intents of Shariah (Maqasid al-Shariah). They emphasize that the principles and provisions of Islamic law are essentially aimed at ensuring and enhancing human well-being. Ibn al-Qayyim (d. 1350) says: "The basis of the Islamic Shariah is wisdom and welfare of the people in this world and in the Hereafter. This welfare lies in complete justice, mercy, well-being and wisdom. Anything that replaces justice with oppression, mercy with harshness, welfare with misery and wisdom with folly, has nothing to do with the Shariah." Al-Shatibi (1194) says that the primary objective of Shariah is the attainment, protection and perpetuation of the well-being of human beings in this world and the Hereafter. He focuses on the concept of the common good (maslaha) and argues that this principle provides the basis of the universality and rationality of Islamic law as well as its flexibility in regard to changing circumstances. Noah Feldman, a professor of law at Harvard University, has pointed out that for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world.
Shaykh Al-Zarqa’s approach to Ifta (pronouncement of legal edicts on specific issues) was guided by a cardinal principle of Islamic jurisprudence which emphasizes taysir (facilitation and ease for Muslims) and the avoidance and mitigation of inconvenience and hardships. He was the first Muslim scholar and jurist to give a fatwa to the effect that though bank interest is not permissible in Islamic law, Muslims who deposit money in commercial banks should not refuse to take the interest on their deposits and leave it unclaimed. Instead, they should take the interest and pass it on to poor and needy Muslims. This view is now generally endorsed by Muslim ulama and jurists from around the world.
Fasting in Abnormal Time Zones
Fasting during the month of Ramadan is observed according to the lunar calendar. In most parts of the Muslim world, the duration of fasting days in Ramadan is generally between 14 and 16 hours. However, in the Northern Hemisphere (above 48 degrees latitude) days are extremely long in summer and nights extremely short in winter. Iceland, Norway, Finland, Sweden, Denmark, Alaska (USA), St. Petersburg (Russian Federation) and northern Canada experience extreme variations in the length of days and nights in summer and winter. Regions to the north of the Arctic Circle experience what is known as the ‘midnight sun’ in summer. From June 12 to July 1 the sun stays up around the clock and does not set. In some parts of Norway and Sweden the sun never goes down for nearly two months in summer and there is broad daylight around the clock. In winter the Northern Hemisphere experiences what is known as ‘polar nights.’ From November 25 to January 21 the sun does not rise above the horizon. In Norway’s capital Oslo, for example, nights are extremely long in winter, lasting for 16 hours while days are short, lasting for 8 or 9 hours.
The extremely long days in summer and long nights in winter in the Arctic Circle raise questions about the timings of prayer and fasting. The historian Masudi (d. 345 AH) and the astronomer Albiruni (d. 440 AH) have mentioned that days and nights in the regions located near the poles are unusually long. An eminent Turkish scholar Haji Khalifa (d. 1658 CE) raised the question about determining the timings of prayers and fasting in the regions near the poles.
The question of determining the timings of prayer and fasting in the Northern Hemisphere is no longer a hypothetical one. Since the early 1980s, thousands of Muslims, mainly immigrants, refugees and asylum seekers, have settled in northern Europe. Kiruna, the northernmost part of Sweden located 145 km north of the Arctic Circle, is home to approximately 700 Muslims. Over 1,000 Muslims are living in Tromso in Norway, 350 km north of the Arctic Circle. The population of Muslims in Iceland exceeds 1,200. More than 42,000 Muslims are living in St Petersburg. Finland has a Muslim population of approximately 60,000.
In the Quran and Hadith, the timings of prayer and fasting are stipulated on the basis of such natural signs as dawn, sunrise, sunset and the disappearance of twilight. Since these signs are markedly different in the Northern Hemisphere in summer and winter, Muslims living in the region are faced with a dilemma. In Makkah, for example, the variations in the duration of fasting days throughout the year are within 2 hours and 44 minutes. In Oslo, there is a variation of 12 hours in the length of days in summer and winter. In Lulea, a city in the north of Sweden, the dawn time in June is 00:51 a. m. and the sunset time is 11:43 p. m. If one observes the fast according to local timings, the fasting day will last for 21 to 23 hours, leaving just about one or two hours for breaking the fast, suhur for the following day and maghrib, isha and tarawih prayers.
Muslims living in the Northern Hemisphere follow different patterns and time schedules for beginning and breaking the fast. In Kiruna, Sweden, the majority of Muslims follow the timings of the Swedish capital Stockholm, 1,240 km further south, where there are days and nights in summer, unlike in Kiruna, and where fasting days in summer last for about 20 hours. This is according to the advice given by the European Council of Fatwa and Research (ECFR). Some of them follow the timings of Makkah and Madinah for beginning and breaking the fast while others follow the timetable of Istanbul, the closet Muslim city from Kiruna. A few of them follow the local timings. In Tromso, Norway, Muslims generally follow the timings of Makkah and Madinah for prayer and fasting.
There is a good deal of confusion, contestation and uncertainty about fasting times in many parts of northern Europe, mainly due to an absence of consensus among scholars and jurists about prayer and fasting timings in the Northern Hemisphere. One of the earliest views on the subject was expressed by Muhammad Abduh. He argued that the timings for prayer and fasting, which are stipulated in the Quran and the Prophet’s Sunnah and which are based on such natural phenomena as dawn, sunrise, sunset and the disappearance of twilight, are applicable to regions that have normal or moderate days and nights. He suggested that in the Northern Hemisphere, where days are extremely long in summer and nights extremely long in winter, the timings for prayer and fasting should be estimated or calculated in accordance with the timings of those regions which have normal or moderate days and nights.
There is some difference of opinion among Muslim scholars and jurists about the lands which have normal days and nights and which could be used as a yardstick for the estimation of timings for prayer and fasting in the Northern Sphere. Some jurists have suggested that the timings for prayer and fasting in Makkah and Madinah should be followed in the Northern Sphere. Others are of the view that the timings of the nearest regions with normal or moderate days and nights should be adopted for the purpose. Muhammad Abduh held that both opinions are valid and legitimate. Abduh’s views have been endorsed by Dar al-Ifta al-Misriyyah as well as several eminent Muslim scholars, including Shaykh Mustafa al-Zarqa, Mahmud Shaltut, former Grand Imam of Al-Azhar Mosque, Dr Muhammad Sayyid Tantawi, former Grand Mufti of Egypt, Dr Ali Juma’a, former Grand Mufti of Egypt, Shaykh Jadd al-Haqq, former Grand Imam of Al-Azhar and Shaykh Muhammad Abu Hashim, former Grand Mufti of Jordan.
Another view, espoused by some Saudi scholars and jurists, including Shaykh Abd al-Aziz ibn Baz, former Grand Mufti of Saudi Arabia, is that as long as there are days and nights (regardless of their length within 24 hours), one must fast from dawn to dust. This view has been endorsed by Saudi Arabia’s High Council of Ulama, which has held that one must begin and break the fast according to local timings as long as night is distinguishable from day, regardless of how long the day might be.
Many eminent scholars and jurists have pointed out that this fatwa is at variance with the higher purposes and intents of Islamic law (maqasid al-Shariah) and the basic principles of Islamic jurisprudence, which emphasize ease, convenience and facilitation for the Muslim ummah. The Quran says: “Allah desires for you ease and convenience, and not hardship” (2:185). Further: “Allah does not burden a person beyond his capacity” (2:286). The Prophet (SAAW) said: “Make things easy for people; do not make things hard for them. Give them good tidings and do not make them turn away from religion (by making things hard for them).” When fasting days are as long as 20-22 hours (as is the case in many regions of the Northern Hemisphere in summer), it is too inconvenient, if not impossible, to break the fast and partake of suhur for the next day’s fast and offer the maghrib, isha and tarawih prayers in the space of two or three hours. Furthermore, fasting for 21-22 hours over a month has deleterious effects on health.
Shaykh Al-Zarqa also took exception to this view. In his book Al aql wal fiqh fi fahm al-Hadith al-Nabawi (1996), he wrote: “Generalising (the principle of adopting normal prayer times to countries of extreme latitude) based on the ability to distinguish between day and night regardless of the great difference in their length, totally contradicts the objectives of Islamic law and the legal principle of mitigating harm. It is unreasonable to distribute the prayers performed during daylight hours and night over a half hour period as it is likewise unreasonable to break one’s fast for one hour and fast for twenty three hours” (p. 124).
One of Shaykh Al-Zarqa’s great qualities was courage of conviction. The Islamic Fiqh Council at Makkah has decreed that insurance is not permissible in Islamic law. Shaykh al-Zarqa, who was a member of the council, disagreed with this fatwa and submitted a dissenting note, in which he argued that there are sufficient precedents in the Islamic legal tradition to justify insurance.
Codification and Reform of Family Laws
Until the 1970s the study of Islamic family laws by Western scholars was largely dominated by the Orientalist framework. Western scholars, who generally focused on Islamic legal texts, viewed Islamic laws as suffused with a patriarchical worldview, static and unresponsive to changing circumstances. During the past couple of decades, an increasing number of scholars, both Muslim and Western, have sought to move away from this ahistorical and blinkered approach and have concentrated on the dynamics of Islamic family laws in the context of their reinterpretation, codification and reform in the Muslim world and the role of Muslim women’s organizations in seeking an expansion of their legitimate rights through the reform of family laws. Muslim women scholars and activists have made a valuable contribution to the reframing of the discourse on the interface between Islamic family laws and gender justice.
The movement for the codification and reform of family laws in the Muslim world, prompted by a concern for improving the social and legal status of women, was set in motion in Ottoman Turkey at the turn of the 20th century. In 1923 Egypt outlawed child marriage and fixed the minimum legal age of marriage for women at 16 and for men at 18. The movement for the codification and reform of family laws that gathered momentum in some Muslim countries in the second half of the 20th century drew upon legal principles and precedents from the vast corpus of Islamic jurisprudence and, to a lesser extent, on European family laws. In some Muslim countries, such as Turkey, Egypt, Pakistan and Bangladesh, the codification and reform of family laws has been largely based on the legal principles of a single school of Islamic jurisprudence. On the other hand, the reform of family laws in Tunisia, Morocco, Algeria and Jordan is characterized by a selective appropriation and synthesis of legal principles and precedents from different schools of Islamic jurisprudence and their reinterpretation in the context of changing social, economic and political conditions in the respective countries.
According to the Maliki, Shafii and Hanbali schools of Islamic jurisprudence, the approval of the bride’s father or legal guardian is a precondition for the legitimacy of the marriage contract. Hanafi jurists, on the other hand, do not consider the approval of the guardian a necessary condition for the validity of the marriage. In Morocco and Algeria, amendments to family laws have dispensed with the requirement of a guardian’s approval. The Tunisian Code of Personal Status says that a woman who has attained puberty is entitled to take her own decision about her marriage regardless of her father’s or guardian’s approval. According to Morocco’s Mudawwana code, a woman is entitled to marry without the approval of a guardian.
Turkey, Tunisia and Kazakhstan have banned polygyny. The Tunisian Code of Personal Status abolished polygyny and made it a punishable offence. Several Muslim countries, including Jordan, Syria, Morocco, Iraq, Pakistan, Malaysia and Bangladesh, have made the husband’s right to contract a second marriage dependent on the permission of a court or arbitration council. Morocco’s Mudawwana code subjects the husband’s right to take a second wife to the consent of the first wife as well as judicial approval. Jordan amended the Civil Status Law in 2001, which obliges the husband to obtain the first wife’s consent before taking a second wife. In Malaysia the husband is required to obtain the consent of the first wife as well as permission from the state-appointed religious body before contracting a second marriage. In Syria and Iraq, the husband’s right to take a second wife has been made subject to the approval of the court. In Pakistan and Bangladesh, the husband’s right to contract a second marriage has been made on the approval of an arbitration council. In Jordan, Morocco, Iraq, Lebanon, Iran, Bangladesh and Kuwait, a clause can be inserted in the marriage contract at the instance of the bride to the effect that the husband will obtain the consent of the first wife before contracting a second marriage and that if he takes a second wife without the first wife’s consent then she will be entitled to seek dissolution of the marriage. Morocco’s Mudawwana code allows women to seek divorce on grounds of cruelty or domestic abuse. In Iran the Family Protection Law of 1986 grants the wife to seek divorce if the husband marries another woman or on grounds of unfair treatment and domestic abuse. The Mudawwana code allows women to retain custody of her child even if she marries again. It allows grandchildren to inherit property. It also allows the legal recognition of children born out of wedlock.
Shaykh Al-Zarqa was closely involved in the codification and reform of Islamic family laws in the Arab region in general and in Syria, Egypt and Jordan in particular. During 1958-1961, when Syria and Egypt formed a federal state, Shaykh Al-Zarqa was appointed the chairman of a committee that was tasked with the drafting of Islamic family laws for the United Arab Republic. In 1981 the Arab League appointed him a member of a committee that was entrusted with the responsibility of drafting a unified civil law for all Arab countries. Shaykh Al-Zarqa was also associated with the drafting of civil laws in Jordan.
Recognition
Shaykh Al-Zarqa was widely recognised and respected for his undisputed expertise in Islamic law and his path-breaking contribution to Islamic jurisprudence, his intellectual and moral integrity and his balanced judgement. He is one of the most cited authorities in the literature on Islamic jurisprudence. He served as a member of the Makkah-based Islamic Fiqh Council (Majma al-Fiqh al-Islami) for many years and actively participated in its deliberations. In 1984 he was awarded the King Faisal Prize for his outstanding contribution to Islamic law.
May Allah shower His blessings on this great son of Islam! Shaykh Mustafa al-Zarqa is survived by his son, Dr Anas al-Zarqa, who has made a valuable contribution to Islamic economics.
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