The controversy arose two weeks ago over the issue of the prohibition of marrying a Muslim woman with a non-Muslim (especially if he was a Christian or Jew). And Dr.
Hassan al-Turabi - may God have mercy on him - raised the same issue in 2006;
Rather, Dr.
Yusef Al-Qaradawi said that he heard it from him in the mid-seventies.
The issue here is divided into two parts: starting the marriage contract and continuing with it if the wife converted to Islam and the husband remained in his religion, and the prevailing opinion in both matters was prevention, starting and continuing.
However, the European Council for Fatwa went beyond the second part (continuing with it), and in 2001 permitted a married woman who had become Muslim to stay with her husband, who remained on his religion, even if he was not converted to Islam with her, and the debate remained about the first part of the issue, which is the beginning of the contract.
This controversy raises multiple questions related to the methodology of jurisprudential deduction and justifications for judgment (reason and wisdom), and its focus on 3 points:
(1) The sources of judgment and is it proven through the text or through Ijtihad?
(2) Interpretation of the Qur’an text, and can consensus on a certain understanding make the connotation of the text definitive and cannot tolerate another meaning?
(3) Researching the reason for judgment and wisdom and the secrets behind it;
So that it becomes reasonable in meaning, and has consistency and persuasion.
This third point is constantly renewed in the present age, which does not cease to raise critical questions or questioning of stable rulings, so that discussion and questioning about them are reopened and the search for their significance and plausibility or irrationality is one of the manifestations of rationality that takes a special pattern in each era.
If the reason is a disciplined matter in the jurisprudential conceptualization, then wisdom is a flexible matter, and it reflects - in my estimation - the attempts to search for the reasonableness of the judgment in order to persuade and solve the problem presented at a certain time, and then the journey of searching for the secrets of judgment reflects a pattern of rationalization, according to the spirit of Each era has the prevailing knowledge, established norms and values, and these intelligibles shape the lifestyle that people define for themselves (justifications of calendar judgments).
With regard to the first point, which is the sources of the ruling prohibiting the marriage of a Muslim woman to a non-Muslim, there is a contemporary approach in inference that wants to limit all evidence to the Qur’an text. If he wants to dissolve from a ruling, he said that it was not mentioned in the Qur’an, and all scholars of jurisprudence and its fundamentals know that The sources of governance are numerous, some are textual and some are non-textual (intellectual or customary), and this is what distinguishes the nature of "Islamic" from "religious", which is in the sense of the Christian theologian and as opposed to the secular.
Al-Turabi has previously followed this approach in inference when he denied the existence of a verse or hadith to deny the obligation and break with the established ruling according to it.
But the books of fiqh general a large body of the reasoning for this ruling two passages (not Tnkhawwa infidels even believe) [Baqarah: 221] and (the Almtamohn believers do not Trdjaohn to unbelievers do not are a solution for them, nor will they solve them) [Mumtahinah: 10], and speech "Islam is above Not to be seconded. "
The one who looks into the branches of Islamic jurisprudence finds that the system - in its group form - strengthens some of them in the rulings related to the family: marriage and divorce, inheritance, guardianship over children, guardianship over women, and the system of rights that the husband has over the wife, etc., and there are different evidence for each One of these issues, which has legal and religious implications, will relate specifically to the issue of the husband's religion.
With regard to the second point, which is the interpretation of texts and the consistency of consideration and reasoning, we find here some problems, whether among the former or the contemporary.
The first problem: the inference of a verse (and do not marry the polytheists until they believe) involves problems.
The first is: The
term polytheists here is a general term, and there are possibilities, including that it includes all non-Muslims, or that it includes pagan polytheists only, or that (the) is of the covenant, so it includes the category of the polytheists of Mecca specifically, and the Quranic context may support this last meaning in originality, and the discussion remains Later on whether or not it was generalized and why ?, The Qur’an in several places made a distinction between the polytheists and the People of the Book, so the word of the polytheists in the Qur’an - by launching it - does not address the People of the Book.
Evidence for the Almighty’s saying (Those who disbelieve were not among the people of the Qur’an and those who are polytheists) [the evidence: 1], and his saying (for those who disbelieve are among the people of the Book), and those who disbelieve (disbelievers) are among the people of the Book. 82], and his saying (What would be the likeness of those who disbelieve among the People of the Book or the polytheists) [Al-Baqarah: 105], and his saying (“Those who believe, and those who are guilty, and the Sabeans, the Christians and the Christians, and those who pray, and those who are between them]).
Because it did not happen the custom of the Jews and Christians that they are called polytheists.
Although the Qur'anic discourse indicates in other places the existence of the meaning of polytheism among those of the People of the Book who believe that God Almighty has a son, idol worshipers are polytheists by saying (We do not worship them except to bring us closer to God is forged) [Al-Zumar: They are the Christians of them. Son of God), and among the Jews are those who are polytheists who say (Uzair, son of God).
Some previous jurists, including Al-Lakhmi Al-Maliki (478 AH) and Zain Al-Din Al-Tanouhi Al-Hanbali (695 AH) were aware of this problem. In this sense, the people of the book are not included in the general polytheists in the Qur’an conventionally meaning.
But Al-Kasani Al-Hanafi (587 AH) will tell us that the text, even if it is mentioned in the polytheists, "But the reason, which is the supplication to Hell, pervades the infidels in general, so the ruling is generalized by the general meaning of the cause."
That is, it transcended the issue of the term to the cause that pervades the implications of the term and others.
God Almighty says (Those are called to Hell)
The second problem:
(And do not marry the polytheists) he met it in the same verse (and do not marry the polytheists), and it was reinforced by another verse (and do not hold on to the guardians of the disbelievers) [Al-Muhtamhahnah: 10]. Their interpretation - includes the People of the Book in two cases: husband and wife.
Here are two answers:
First:
What was narrated on the authority of Ibn Abbas that his saying (and do not marry the polytheists) [Al-Baqarah: 221] was abrogated by the verse of Al-Ma'idah that permits the women of the People of the Book. , Although the discourse is one and one verse.
And the second:
that the abrogation is in the sense of an exception, and that these generalities include all non-Muslims
But we have excepted the marriage of the Qur’an which is protected from the general prohibition.
Because there is another evidence from the Qur’an where it excluded (and the fortified women from the believing women and the women inhunat from those who gave the book before you) any solution for you, so it is known from this that they are included in the original line
But they were excluded from the public, because there was a special evidence that took them out of the public.
The Sunnah of the Prophet varied between scholarly hadiths and practical Meccan and Medinan practices, then followed by work by the Companions and Taabi'een, then jurisprudential schools arose according to divergent foundations and methodologies.
This shows the extent of the superficiality inherent in the saying: There is no evidence in the Qur’an for such.
Because what we call Sharia is the product of a tripartite complex: the text (with what is a discourse and not just a verse or some verse), interpretation and its methodologies, and the inherited work (it includes the Sunnah of the Prophet and the work of the companions and followers).
This last answer achieves consistency in the issue of the prohibition of marriage of a Muslim woman to the kuttabi, and the permissibility of marriage of a Muslim to a woman of the woman.
But it is not consistent with the general Qur’an discourse that distinguished between the polytheists and the People of the Book, as stated above, and it will also create other problems for us in how to explain this exception, and why the Kitabat exclusion occurred.
Although they are polytheists according to this saying, although the discourse in the polytheists and polytheists is one and the description - which is polytheism - is one. Rather, the discourse begins with the prohibition of marrying polytheists before it is forbidden to marry polytheists for the same reason, which is (Those who call for fire and God calls for freedom His signs are for men, so that they may remember).
Moreover, the verse of al-Ma'idah, which spoke about the permissibility of food for the People of the Book, and the permissibility of the marriage of women who are protected from the People of the Book, remained silent about the marriage of those who are protected from the People of the Book, and this silence can be interpreted by several interpretations, and it is not in the power of the direct statement anyway, and the general is stronger than it is in my estimation.
The limitation to searching for textual evidence only is fraught with these dilemmas as you see, and it revolves around the balance between the power of the public and the private, and which one is stronger ?, the balance between declaring and silence, and understanding the language of the Qur’an (such as the term polytheists, for example), and therefore there is hardly a single evidence for one of the jurisprudential rulings ;
Because the discourse of the street is rich and complex and took place over a period of 23 years, and the Sunnah of the Prophet varied between anecdotal hadiths and practical Makkan and civil practices, then followed by work from the Companions and Taabi'een, then jurisprudential schools arose according to complex foundations and methodologies.
This shows the extent of the superficiality inherent in the saying: There is no evidence in the Qur’an for such.
Because what we call Sharia is the product of a tripartite complex: the text (with what is a discourse and not just a verse or some verse), interpretation and its methodologies, and the inherited work (it includes the Sunnah of the Prophet and the work of the companions and followers).
Depending on the tradition, the inherited work may allocate the year of the Qur’an, or assign a specific understanding to a verse that carries more than one meaning, and its significance turns into a definite sign because of the consensus supported by the work. Al-Shafi’i expressed about this meaning, so he said, “The argument for it is what we described from the Book of God. Most of the scholars of knowledge have met with proven meaning, so their meeting is better to be a copyist, and that is what God Almighty says: (Do not refer them to the infidels, neither they are permissible for them nor they are permissible for them) [Al-Mumtahinah: 10] and His words of the Almighty (and do not marry polytheists until A believer and a believing nation are better than polytheism, even if you like and do not marry the polytheists until they believe. ”[Al-Baqarah: 221], it has been said that these two verses are in the polytheism of the idols, and it was said in the general polytheism. Historically, it is permissible to marry a Muslim woman from the woman of the woman, and forbid the marriage of a woman to a Muslim woman, and there is no evidence for that except for this consensus that has been historically recognized.
As for the third point
, which is the search for the reason for judgment, its judgment and its secrets, there is a difference between reason and wisdom, and this can be expressed as a behavior that generates rulings.
By defining the reason, it is possible to transcend the judgment to other than the issue in which the text is mentioned, as for the wisdom that appears when the reason for the ruling does not appear that enables us to transgress it to another.
However, its role is limited to imparting reasonableness to the judgment, either to narrow the area of worship (i.e. the unreasonable meaning), or to respond to suspicion or confusion and to provide reasonableness, which helps the taxpayer to more satisfaction with the judgment, acknowledge it, and reassure it (it includes a claim meaning and an enhanced meaning for practice And compliance), and I do not want to go into here the issue of permissibility of reasoning with wisdom or not.
It is possible to examine in the books of fiqh on some of the explanations for the ruling in question here.
But it revolves - according to my understanding of their words - on a complex perception of the elevation of Islam and the elevation of the status of the husband, and from here we found Al-Sarkhasi (490 AH) inferred by the hadith "Islam is superior but not superior", which is an inference that includes a kind of reasoning;
But the Kasani al-Hanafi talk can explain the meaning of elevation here, because in the marriage of an unbeliever believer, “the fear of the believer falling into disbelief, because the husband calls her to his religion, and women in customs follow men in their actions, and imitate them in religion ... So the marriage of an unbeliever Muslim was a reason for calling To the forbidden, and it was forbidden. ”Likewise,“ Shariah severed the guardianship of the unbelievers from the believers by saying the Almighty (and God will not make the unbelievers a path over the believers) [An-Nisa: 141] So if it is permissible for the unbeliever to marry a believing woman, then a path is proven for him, and this is not permissible. "
And it remains that the high and the path here is a general meaning, just as fear for a Muslim woman is matched by fear of a Muslim as well, and the idea of a woman’s subordination to a man is a cultural issue, and it can change by changing norms, societies and legal legislations as is the case today, and there is a distance separating Islam from religion and A Muslim woman is a wife, so Islam is not singled out for her in this case until his elevation is required in such a marriage, just as the husband does not represent his religion whatever it is, so the relationship here is between two people and not between two religions, even if this relationship is so complex that it will include the lifestyle and its details, and will reflect The style of what today is called "practical theology";
That is, it will bring us back to the field of practicing beliefs that each of the spouses believe, and will later be reflected in the children as well and the various life choices, in which the collision and difference will fall.
As for contemporary explanations, they varied, so Sheikh Muhammad bin Saleh Al-Uthaymeen explained that the husband was a master, and a Muslim woman was not under an unbelieving husband, and this is a branching off on the issue of guardianship in jurisprudence, and Sheikh Yusuf al-Qaradawi saw that the wisdom is that “the man is the head of the house, the strength of the woman, and the responsible Islam has guaranteed for the clerical wife under the shadow of the Muslim husband the freedom of her belief, and - through his legislation and instructions - has safeguarded her rights and inviolability, "and that, unlike any other religion," did not guarantee the wife who is in conflict with religion any freedom, nor was her right protected, "and that the issue is based on Islam's recognition of the origins of the beliefs of the People of the Book without the opposite, and therefore the husband of the book does not recognize the legitimacy of the belief of the Muslim wife in this case;
Which will disturb the basis of good ten between them and affection.
Although the hadith of the Prophet had also used “the word of God” in “Beware of God in women, for you took them with the faithfulness of God, and permitted them to divide them with the word of God,” it did not happen - within the limits of my knowledge - that previous commentators and jurists used such texts to prove the divinity of marriage, The harsh pact in the Qur’an is mentioned in other contexts, and the charter in general is a contract between two parties, and its severity is based on the importance of this contract and the intensification of its betrayal or breach of it, meaning that it falls within the category of contracts that are higher in status and more important, so it is undoubtedly higher than the sale and purchase contracts. God in the hadith refers to the permissibility of marriage and marriage stipulated in the Qur’an by saying (So marry as many women as you wish)
These divorces do not seem convincing in the sense that the mere religion of the husband or wife does not constitute - on its own - sufficient guarantees for the practice to take place according to it, so what are the most abuses that occur between Muslim spouses, just as the values of pluralism and respect for personal beliefs and choices are not a purely religious issue, and no particular religion monopolizes them without Other than him, and then it does not seem that these explanations respond to the modern problem although it is trying to do so.
Because modern criticism of governance is based on the absence of textual evidence on the one hand, and the role and status of women and the idea of equality on the other hand, which will nullify the concepts of sovereignty, guardianship and subordination.
Also, marriage is a relationship between two parties, not between two religions, until it is transformed into a discussion in the comparison of religions and the preference of one over the other, in addition to the fact that marriage matters are not controlled by religious beliefs or directives only.
Rather, it is regulated by laws, social norms and moral values that prevail in today's societies, and therefore such rhetorical explanations do not provide the required reasonableness.
The Sheikh of Al-Azhar Ahmed Al-Tayeb used this last argument (the recognition of Christianity by Islam and Judaism) as a justification for the ruling in an attempt to persuade his interlocutors in Germany in 2016.
However, what is striking is that he described marriage as a religious bond or a religious project in the first place, which is the meaning that the Egyptian Dar al-Iftaa reiterated in light of the current controversy, when it considered that "this legal ruling is definitive and forms part of the identity of Islam." Marriage is a divine matter and a sacred secret, described by our Lord, Blessed and Exalted be He, so he said (And they took from you a thick covenant).
Although the hadith of the Prophet had also used “the word of God” in “Fear God in women, for you took them with the faithfulness of God, and you accepted them to divide them with the word of God,” it did not happen - within the limits of my knowledge - that previous commentators and jurists used such texts to prove the divinity of marriage, The harsh pact in the Qur’an is mentioned in other contexts, and the charter in general is a contract between two parties, and its severity is based on the importance of this contract and the intensification of its betrayal or breach of it, meaning that it falls within the category of contracts that are higher in status and more important, so it is undoubtedly higher than the sale and purchase contracts. God in the hadith refers to the permissibility of marriage and marriage stipulated in the Qur’an by saying (So marry as many women as you wish), as Al-Bayhaqi and Al-Nawawi said, and Al-Bayhaqi mourned him in general.
Such explanations for the fact that marriage is a divine or religious contract are vague expressions and are unable to justify the ruling on a Muslim woman marrying a non-Muslim.
Rather, she appears very influenced by Catholic Christian conceptions of marriage, in contrast to the jurisprudential conceptions themselves.
Marriage in Islamic jurisprudence is a contract, and in general contracts are Shari’a contracts with the description of “religious”, meaning that they are included under the discourse of the street with one of the five mandatory provisions of permissibility, necessity, prohibition, hatred and desirability.
Therefore, jurisprudence deals with all the actions of the taxpayer in various areas of worship, transactions, personal status and penalties, as well as individual rulings and sultanistic rulings, and marriage is part of personal status.
The branches of jurisprudence are usually classified in general into worship (and its mainstay is the intention) and transactions (and its main purpose is the intention), and this is the behavior of the Hanafis in particular, and Al-Shatibi was included in the approvals;
But this division does not prevent every transaction from being converted into worship in the general sense.
Thanks to the intention that the servant makes when performing the transaction, and then we will be faced with two concepts of worship: worship in the idiomatic or specific sense, and worship in the general sense.
Fiqh books separate between worship and marriage, for example.
Because marriage is not included in acts of worship in a special sense, and the jurisprudential schools of thought differed in the location of the book of marriage from among the books of jurisprudence, so the majority make marriage after the books of acts of worship due to its proximity to it, while the Hanbalis have delayed the book of marriage from acts of worship and separated between marriage and acts of worship in their view of several other topics.
The meaning noted here is that marriage is a contract that is mainly based on the relationship between human beings, and is related to the system of human rights, and it is a relationship based on disrepair, yet it also implies rights for God.
But since the rights of the servants in marriage are in the majority, it is removed from worship in the conventional sense, and it has a contractual legal aspect that requires free will between two parties of the pattern of the rest of the contracts, unlike the acts of worship that are based on the relationship between God and the slave, and do not require such contracts, and are governed by intentions and compliance It is based on forgiveness for the truth of God Almighty.
It remains that there is a distinction between the marriage contract and the rest of the contracts in that the marriage contract is more restrictive in terms of permissible and forbidden, and in terms of the obligatory elements in it from the rest of the contracts (such as buying and selling), and for this it became at the top of the contracts and its charter was coarse.
The fuqaha 'have approved a rule that the basic principle with regard to transactions is forbidden, and the basic principle in transactions is permissibility (transactions in the special sense: financial contracts and others).
In the books of fiqh, we find many discussions and explanations about the definition of the marriage contract, about its reality: is it the contract itself or the intercourse ?, and about the comparison between it and the redundancies, as we find discussions of historical facts in which the wives converted to Islam and remained with their polytheistic husbands (who are not People of the Book), and opposite facts The husbands embraced Islam and stayed with their wives, then the wives and husbands became Muslim (i.e., one of the spouses became late for a while).
But Al-Shafei interprets these facts that the conversion of one of the spouses was part of the waiting period, in order to correct the marriage contract. The whole discussion was about the validity of the contract prior to Islam, and whether or not it was broken by the Islam of one of the spouses?
Does it require renewal or not?
All these discussions take the marriage contract away from the idea of a divine contract or a sacred secret.
The purpose of this article was not to discuss the ruling on a Muslim woman marrying a non-Muslim in itself.
Rather, criticism of the method of dealing with such judgments from two sides: the side of those who question it without a sufficient understanding of its logic and its sources, and the point of those who defend it and invent ambiguous or unconvincing explanations for it, and they fall into new problems, and God knows best.