‘No, no, no!’, an exasperated Ustādh Bradiperr exclaimed on the other line of the phone, in a stoical attempt to ward off my latest plea for scholarly intervention. ‘Henceforth, you must deal with these miniaturists on your own, like a true man.’
I had in fact perused one of the multitudinous offerings of modernism’s fast fiqh factory line, the legalization of a Muslim inheriting from a kāfir on alleged “purposive” grounds, and I asked the Ustādh to lend a helpful hand in jotting down a basic refutation of the latest “maslahī” recipe.
A dozen or so minutes of far from palatable verbal wrangle eventually produced, once my mentor succumbed to ever more emotional blackmail on my part (the details of which ought to be benevolently screened from public disclosure), the Ustādh’s under-quoted lines:
“A Muslim does not inherit from a kāfir, nor does a kāfir inherit from a Muslim (lā yarithu al-Muslimu al-kāfir wa-lā al-kāfiru al-Muslim)” – Ibn Abī Zayd al-Qayrawānī, Ar-Risālah al-Fiqhiyyah.
Note that the author used the general term kāfir, which is neither restricted to a harbī nor to a kāfir in any state of actual war with the Muslim polity.
Note also that none of the famous elucidators of Ar-Risālah, al-Qalshānī, an-Nafrāwī, Zarrūq, Ibn Nājī, Abu’l-Hasan ash-Shādhilī al-Manūfī, at-Tatā’ī, al-Ābī etc, qualified the term kāfir by the said restrictive interpretation; with all that they had thorough acquaintance with who a harbī was.
“The impediments to inheritance are seven:
1. Dissimilarity of dīn. There is no mutual inheritance, either way, between one millah and another” - Ibn Rāshid al-Qafasī, Lubb al-Lubāb.
Note that the author couched the said impediment in fully unqualified terms and spoke of a lack of tawāruth bayna millatayn.
“A Muslim does not inherit from a kāfir, nor does a kāfir inherit from a Muslim. No mutual inheritance whatsoever is established between the adherents to one millah and another” – Ibn al-Jallāb al-Basrī, At-Tafrī`.
“The effective causes which prevent inheritance are three: Kufr, slavery and murder of the deceased (by the prospective heir).
There is no mutual inheritance between a Muslim and a kāfir” – Judge ‘Abdu’l-Wahhāb al-Baghdādī, At-Talqīn.
Note that the said great ‘Irāqī judge used the unqualified terms kufr and kāfir without any internal differentiation or sub-classification.
“The impediments to inheritance are ten.
The first such impediment: Dissimilarity of dīn. Accordingly, a kāfir does not inherit from a Muslim by unanimity of scholarly consensus in the ummah (ijmā`an), and a Muslim does not inherit from a kāfir according to the bulk of the Islamic savants, ‘inda’l-jumhūr [hence all the four Imams. The opinion of Ibn Taymiyyah is only relevant to his followers, not to any Mālikī, Hanafī, Shāfi`ī or Hanbalī who takes by the dominant view in his school. The only famous dispute in the past was whether such as a Buddhist and a Christian, or a Hindu and a Jew inherited from one another, which is an issue of no relevance to us in West-dominated regions. The sole significance of such disagreement was where Muslims exercised territorial jurisdiction over kuffār, and the latter instituted claims to inheritance inter se before an Islamic tribunal]” – Ibn Juzayy, Al-Qawānīn al-Fiqhiyyah.
“The impediments to inheritance are six:
The first such impediment: Dissimilarity of dīn. Accordingly, there is no mutual inheritance between a kāfir and a Muslim” – Ibn Shās, ‘Iqd al-Jawāhir ath-Thamīnah fī Madhhab ‘Ālim al-Madīnah. The same was said by Ibn al-Hājib in Jāmi` al-Ummahāt.
Note that both the Andalusian Ibn Juzayy (a very precise scholar) and the Egyptian Ibn Shās made use of unqualified terminology, exactly as the other luminaries we quoted from.
“There is no mutual inheritance between the adherents to kufr and the adherents to Islam according to the bulk of the people of knowledge (‘inda jumhūr ahl al-‘ilm). A group of learned people have stated that the Muslim inherits from a kāfir specifically (but not the other way around). This view has been enunciated by Muhammad b. al-Hanafiyyah [a well-known grandson of ‘Alī, may Allah be pleased with him, who played an important political role in the days of ‘Abdullāh b. Zubayr and ‘Abdu’l-Malik b. Marwān], Mu`ādh b. Jabal and Mu`āwiyah. It is based on the rationale that Islam (but not so kufr) is a cause of preclusion and deprivation of a share of inheritance, since Islam is on top and dominates and is not dominated and toppled by its opposite.
The sound judgment is however to rely on his, Sallallāhu ‘alayhi wa-Sallam, statement: “The Muslim does not inherit from the kāfir, nor does the kāfir inherit from the Muslim (Lā yarithu al-Muslimu al-kāfir wa-lā al-kāfiru al-Muslim)” (Reported by al-Bukhārī, Muslim, Abū Dāwud and Ibn Mājah)” – Ibn Buzayzah, Rawdah al-Mustabīn fī Sharh Kitāb at-Talqīn.
Note that the ratiocination (ta`līl) in favour of the minority view discarded by the four Imams and their followers across the centuries does not relate to the differentiation between ordinary kāfir and a harbī or kāfir in a state of actual war with the Muslim polity.
“A person is prevented from inheriting by one of seven reasons, which are joined together in the phrase: ‘Ish laka rizqun = Live! You have sustenance.
The letter kāf in that phrase stands for kufr. What is meant by it is dissimilarity of dīn.
A Muslim does not inherit from a kāfir nor does a kāfir inherit from a Muslim. If one marries a woman from the People of the Book, or if he is a Muslim and his son or father belongs to the People of the Book or to any millah other than the millah of Islam, and either of them then dies (= either he dies or his son/father dies), neither one inherits from the other. That is so by virtue of the hadīth which is firmly entrenched in this very subject matter and which specifies the generality of the Qur’ān, namely, his, Sallallāhu ‘alayhi wa-Sallam, statement: “The Muslim does not inherit from the kāfir, nor does the kāfir inherit from the Muslim”. It has been reported by the Shaykhayn (al-Bukhārī and Muslim) on the authority of Usāmah b. Zayd; in Al-Muwatta’ it is reported only insofar as the first narrative segment is concerned [which would interdict a Muslim’s inheritance from a kāfir].
Ibn ‘Abdi’l-Barr wrote in At-Tamhīd (his supreme achievement in the field of fiqh al-hadīth): “As for Mālik confining himself to his, Sallallāhu ‘alayhi wa-Sallam, statement: “The Muslim does not inherit from the kāfir (lā yarithu al-Muslimu al-kāfir)”, it is because that is the context about which the Predecessors had differed. It is therefore as if Mālik, may Allah show mercy to him, intentionally highlighted the only facet of the mas’alah which was worth addressing, and conclusively settled the dispute by the segment of the sound narration he reported in his book””.
Look at it: Centuries ago, Mālik, with his inimitably allusive and condensed style, did away with the basis of the scholarly disagreement, which he was well aware of: A Muslim cannot inherit from a kāfir by virtue of an explicit Prophetic text encapsulating that judgment.
One is of course free to deviate from his alleged Imām in fiqh and embrace some modern minimalist ijtihād founded on convenience and tolèrance masquerading as "wisdom and purposive interpretation suiting the new time and place".
“Ibn ‘Abdi’l-Barr then mentioned a group of Companions and Followers who opted for the view that a Muslim might inherit from a kāfir on the basis of blood relationship, whereas the opposite (= a kāfir inheriting from a Muslim) was not possible. Those scholars said, ‘We inherit from them but they do not inherit from us; we marry their women but they cannot marry ours.’ Ibn ‘Abdi’l-Barr stressed the following: “It is firmly established from the Prophet, Sallallāhu ‘alayhi wa-Sallam, that he said: “The Muslim does not inherit from the kāfir”, based on a narration transmitted by reliable Imams who were huffāz of hadīth. WHOEVER GOES AGAINST THAT IS OVERPOWERED BY THE PROOF CONTAINED IN THIS HADĪTH” (Which is exactly what Imām Mālik openly hinted at) – Al-Majjājī, Al-Muhadhdhab min al-Fiqh al-Mālikī.
Besides, the dissenting voice of some scattered savants was grounded on the idea that Islam was on top and in charge, the very opposite of minimalist jurisprudence which seconds the modern Muslims’ desires to spend lives of ease in the secular West.
“Inheritance between Muslim and kāfir
It has been narrated from the Prophet, Sallallāhu ‘alayhi wa-Sallam, that he said: “The Muslim does not inherit from the kāfir, nor does the kāfir inherit from the Muslim.”
That is the ruling adopted by ‘Umar, ‘Alī and the bulk of the Companions, may Allah be pleased with them. It is also the ruling endorsed by inter alia Mālik and the learned people of al-Madīnah” – Ibn Yūnus, Al-Jāmi` li-Masā’il al-Mudawwanah wa al-Mukhtalatah.
He then mentions the dissenting view of the said two Companions and the rationale for it as set out by Ibn ‘Abdi’l-Barr in At-Tamhīd, which thus calls for no repetition.
“A Muslim does not inherit from a kāfir, just as a kāfir does not inherit from a Muslim” – Abu’l-Hasan al-Maghīlī, Sharh al-Urjūzah at-Tilimsāniyyah fī al-Farā’id.
“A person whose dīn is dissimilar cannot inherit” – Khalīl, Al-Mukhtasar.
“The explicit text of the Muwatta’ is: Mālik said: ‘The agreed upon practice with us, which is the sunnah open to no disagreement, and what I found the people of knowledge in our city adhering to, is that a Muslim does not inherit from a kāfir as a result of family relationship, ties of clientage or common ancestry” (…). Al-Baghawī said (in Sharh as-Sunnah): “The view acted upon by the generality of the savants, among the Companions and successive generations, is that a kāfir does not inherit from a Muslim and a Muslim does not inherit from a kāfir, due to the severance of close friendship between the two of them”” (Ash-Shinqītī, Mawāhib al-Jalīl min-Adillah Khalīl). The author then quotes al-Baghawī’s mention of the existence of an exception in the form of the counter-view related from Mu`ādh and Mu`āwiyah, may Allah be pleased with both of them, which he said had also been narrated from the Follower Ibrāhīm an-Nakha`ī (which was nevertheless discarded by Imām Abū Hanīfah in spite of his deep admiration for that predecessor).
The Companions who supported the ruling adopted by all four Imams further include ‘Abdullāh b. Mas`ūd, Zayd b. Thābit, ‘Abdullāh b. ‘Abbās and Jābir b. ‘Abdillāh (See Judge ‘Abdu’l-Wahhāb’s ‘Uyūn al-Majālis). In other words, with ‘Umar and ‘Alī we already mentioned as supporters thereof, the elite of the leaders in fiqh among the Companions (both the seniors and the juniors among them). As for Mu`āwiyah’s stance, it was inferred from the statement by the Prophet, Sallallāhu ‘alayhi wa-Sallam: “Islām increases and does not increase; it dominates and is not dominated” (Sunan Abī Dāwud, Ahmad’s Musnad, al-Hākim’s Al-Mustadrak and al-Bayhaqī’s As-Sunan al-Kubrā), which is of course of generic import and not explicitly related to the juristic issue we are dealing with. Besides, it cannot be applied to a historical, socio-political and existential scenario where Islam is on the decrease and the Muslims are dominated, rather than the other way round.
Apart from the four Imams, the standard ruling was supported among the Followers by inter alia Ibn Shihāb az-Zuhrī, ‘Atā’, Tāwus and al-Hasan al-Basrī, i.e. once more the pick and the bulk (Cf. Ibn Qudāmah’s Al-Mughnī).
We have covered more than 1200 years of undisputed unanimity among the four madhāhib as regards the correct mainstream judgment in the matter. That included countless instances where a) the kuffār to whom the ruling was applied to were people of the dhimmah under Muslims’ covenanted protection and b) the Abode of kufr (its rulers and citizens) were not engaged in any war, declared or otherwise, with the Islamic polity.
One more point of significance: The earlier period of Islam is not the key phase for ascertaining the entrenched judgments of the Law, whenever such judgments subsequently changed and settled on new legal ground. ECFR’s reliance on that is therefore misleading.
The scrutinized text:
ECFR Fatwa on a Muslim inheriting from non-Muslim relatives
The Council [European Council for Fatwa and Research] holds that Muslims should not be prevented from inheriting from their non-Muslim relatives. This does not contradict the authentic hadith, “A Muslim must not inherit from a disbeliever, and vice-versa,” since the latter is to be understood as applying to a harbi or disbeliever who is at war with Islam. It should also be noted that during the early period of Islam, Muslims were not prohibited from inheriting from their non-Muslim relatives.
Amongst the Companions [of the Prophet, peace be upon him], the following took this view: Mu’adh bin Jabal and Mu’awiyah bin Abi Sufyan, as did a number amongst the Successors [of the Companions], including Sa’id bin al-Musayyib, Muhammad bin al-Hanafiyyah, Abu Ja’far [Muhammad] al-Baqir and Masruq bin al-Ajda’. This is also the view of Sheikh-ul-Islam Ibn Taymiyyah and his student, Ibn al-Qayyim.
After I received Ustādh Bradiperr’s critical response, I had the opportunity of chatting with him (in a more relaxed mood) on the subject. He was at a restaurant or a canteen, and floating passages from Philip Glass’ Einstein on the Beach could be heard in the background.
Ustādh, can we definitely affirm that the “standard” ruling you have set out and corroborated at length in your response represents the entrenched view of the four schools of Islamic jurisprudence?
That is so without a shred of doubt. As you would have noticed, what I shared with you is the position of the four madhāhib. It is the view of their Imams. It is the ruling persistently applied by their followers over the centuries. Even the Literalists acted by it, quite understandably, since they would be guided by the explicit text of the agreed upon hadīth. In this instance, of course, their “literal” interpretation of the Prophetic hadīth would coincide with the normative interpretation thereof by all the four schools and the bulk of Muslim savants across the age; without any distinguisher between harbī or otherwise.
What about Mālik specifically?
He called it al-amr al-mujtama` ‘alayhi ‘indanā wa as-sunnah allatī lā ikhtilāfa fīhā walladhī adraktu ‘alayhi ahl al-‘ilm bi-baladinā = the agreed upon practice with the Madinans, which is the sunnah open to no disagreement and what he found the people of knowledge in his Illuminated city adhering to, namely, that a Muslim does not inherit from a kāfir as a result of family relationship, ties of clientage or common ancestry. Mālik was fully au fait with the few dissenting voices, and he explained himself in a way which left no doubt as to the foundational invalidity and irrelevance of those few isolated disagreements.
Al-amr al-mujtama` ‘alayhi ‘indanā means for Mālik that the people of knowledge and fiqh in al-Madīnah unanimously held onto one position, not merely without “any known” disagreement, but definitely without any disagreement at all as underlined by the additional phrase wa as-sunnah allatī lā ikhtilāfa fīhā; in other words, there was consensus (ijmā`) between Ahl al-Madīnah on the prohibition of inter-faith inheritance we have spread out at length. Because the consensus was not total as far as the Companions and the Followers were concerned, he knowingly pointed out that it was the ruling he found the inhabitants of the Prophetic city cleaving to (walladhī adraktu ‘alayhi ahl al-‘ilm bi-baladinā), i.e. no regard was paid to a marginal counter-view.
Would it then be safe to allege that the position taken by ECFR, the European Council for Fatwa and Research, is contrary to the stated position of the four madhāhib and the entrenched ruling on the issue across mainstream Islam?
That is indeed so.
As Ibn ‘Abdi’l-Barr stated, whoever went against that ruling was overpowered by the proof embedded in the hadīth; which in no way applies restrictively to a harbī.
If it openly contradicts the four schools, even the old Literalist school as you said, what is it, then, that ECFR would be following?
Another madhhab: A fifth madhhab, or perhaps a ninth one, given that with the Amman declaration we had already reached eight or so.
I call it minimalism, the pastel way, the anemic dīn or hushed jurisprudence, the Californian school …
People don’t take kindly to the last-mentioned label.
True, I noticed that. It baffles me. Maybe they don’t appreciate California’s beaches or Hollywood movies. Maybe they feel what they are following is such a blessed “moderate” religion that the whole world should share in its name, not just Silicon Valley or thereabouts. It might be a geopolitical gripe. I wouldn’t really know.
The essence is the same: Self-referential supermarket fiqh, cut and paste fiqh: Especially the cutting part.
The broad discernible trajectory of this deconstructing tendency is miniaturist. It is the multi-sided frontier of Miniaturism, bent on jettisoning the grander narrative and achieving the compression of the Minute Waltz into 60 literal seconds: No more no less than any other existential pursuit of the age, politics, culture, philosophy, architecture, societal norms, gastronomy, sport, you name it.
The Dīn as a continuous present: A parody of Sufism trapped in the outward, unable to die, let alone to die before death.
No explosive discarding of truths, but subtle and relentless erosion from inside.
A kind of antechamber of nihilism …
… or a symptomatic exteriorization thereof.
The leanings and recurrent motifs are cannily the same as the Salafi methodology, only that it serves the aims of a “moderate” and “progressive” Islam: I take the easy position and I scout around for some proof for it in the sources. Here I find Mu`ādh b. Jabal and Mu`āwiyah, one or two Followers, the ubiquitous Ibn Taymiyyah or Ibn al-Qayyim pops up (this time around, Ibn Hazm turned angrily in his grave and exclaimed, ‘No!’), and I throw in for good measure some “purposive” explanation, such as, ‘Chaps, what was meant was only the bad kāfir who was bombing us or throwing incendiary darts at our peaceful mansions, not any Tom Dick and Harry who might disbelieve.’ In other instances, I take from al-Ghazālī and the way he defines “communication of the message of Islam”. Then it is the turn of Ibn Daqīq al-‘Īd on astronomical sighting, and so forth. The pool is immense. As Sayyidunā ‘Alī emphasized, if you searched for a camel in the Qur’ān you would find it.
I once had a Parsi employer, a cultured Zoroastrian of Indian origin, who told me he could show me in Allah’s Book where trade unionism was allegedly legalized and encouraged.
But what about the millions of Muslims who still adhere to a madhhab? Shouldn’t they have been given clarity on the nature of the ruling?
A catch 22 situation: Scholarly integrity would have demanded that those issuing the fatwā underlined the fact that it violated the entrenched position of the four schools, and represented their own ijtihād and, partially, only partially, the view of a handful of genuine Muslims over more than 1400 long years. In terms of scholarly integrity, they were expected to say, ‘WARNING: This is not the ruling of the vast majority of Ahl as-Sunnah, this is categorically not the established view of any one of the “canonical” schools’, canonical is such a funny Christian term (he laughs), ‘however, in this time and age … given the novel circumstances … in our humble opinion …’.
You must be naïve to expect that.
If I pose myself as a staunch, inflexible Hanafī orthodox on the prohibition of birthday celebrations, the use of other than Arabic in a Friday khutbah or incompatibility between spouses across racial divides, and I have made a name for myself as a bravely uncompromising madhhabī “orthodox”, I would be shooting myself in the foot if I said, ‘However, guys, when we come to transactions, we construct, say, financial murābahah by taking this part from Mālik, that part from ash-Shāfi`ī, ignoring our own Imām Abū Hanīfah, blending the ingredients in a conceptual fruit-mixer, shaking the whole blend smartly and offering it to you as sharī`ah-complaint.’
The realities are the same, but the names change.
How can the genocidal culprit be expected to declare that he is engaged in genocide? He calls it ethnic cleansing; or collateral damage, or enforced withdrawal of funds from depositors’ accounts; or he invades a country "to wage war against terror".
Do not, therefore, expect such as ECFR to successfully merchandise syncretistic goods by naming them for what they really are. The stock would be left unsold.
By altering the names which Ādam, peace upon him, was taught, the things thus named would likewise be altered if the name is the same as the named. But now we are drifting apart in the turbulent sea of kalām …
Yet their goods are merchandised even by famous people who are associated with the rejection of Salafism and the encouragement to embrace a madhhab!
It is quite ironical, not so?
At the end of the day, all tributaries of corruption converge back to the mother-river, even if for a while they have coursed through different terrains.
If one is, say, a Mālikī scholar, and has a vast following as a master in that madhhab, hence ascendancy over numerous persons, can he toss around fatāwā which overtly contradict the unanimously held position in his school?
Not at all: Read such a text as Manār Usūl al-Fatwā wa-Qawā`id al-Iftā’ bi al-Aqwā by Ibrāhīm al-Laqqānī, or al-Liqqānī, Allah knows best.
The madhhab is “that in accordance with which fatwā is given”.
What is communicated in a fatwā, al-Laqqānī and all the others emphasize, is either the mashhūr or the rājih. No fatwā can be legitimately issued, and no judgment can be legitimately passed in a court case, by other than the mashhūr or the rājih. Otherwise, any one could just fill up his shopping bag with any view expressed in the ummah at one stage or the other, as in our mas’alah of inter-faith inheritance.
The amazing thing is the allegation that it is madhāhib which foster divisiveness!
What is the source corruption?
Abandonment of the classical path: Had one been rigorous in holding to the mainstream tafsīr, jurisprudence, ‘aqīdah, Sufism etc, it would not have happened. He would have immediately jettisoned this “ijtihādī” deviation from the embedded rule on mutual inheritance between Muslim and kāfir generally.
How would you then describe the secret behind people who view themselves as followers of a madhhab falling under the spell?
It is the pull of personalities.
I buy the “product” of a scholar, theorist, shaykh, speaker or author: When new components are installed and updates made to the same software, I am glued to the package, to the brand name. I no longer monitor the soundness and legitimacy of the components, let alone am I alert to the fact that the overall profile of the “product”, too, is now different from how it was presented at first.
Yet you yourself are no star scholar.
Allah, may He be Exalted, solicited Muslims to ask the people of remembrance. He did not mention “famous speakers”. Who knows, perhaps we might remind ourselves and others of things they once knew and later forgot.
What is the binding force of pronouncements by such as ECFR?
Essentially zero. If I say to myself, ‘I do not care what these people are saying, I follow my madhhab which has declared such inheritance harām’, the bubble is burst. It’s like a Masonic lodge: It has force only over its adepts. Luckily I swing around far away from Europe … (he throws in a rather wicked smile).
It would be different had a Caliph, King or Sultan issued a directive.
Incidentally, let me remind your readers that we Ahl as-Sunnah endorse the legality of monarchy in the scenario subsequent to rightly-guided Caliphate of Islam. That has always been the Ahl as-Sunnah stance. We are not self-punitive idealists.
One more point: Ultimately, all of this is a spin-off of the collapse of governance after rule in Istanbul was swept away. Man is innately a social creature, so he tends to follow the visibly dominant ethos in his polity. The Prophetic instruction was that the fires of the Muslims and those of the mushrikūn should not be visible to each other. Once the fires blurred in one indistinct ball of smoke, all existential partition lines began to evaporate along the physical ones. The last watershed to offer resistance will be prayer, right at the bottom of the maelstrom, before the curve of rejuvenation again moves upwardly.
Whether we like it or not, we are Muslims and we submit to His will.
You made me forget what I wanted to ask. Never mind: Advice us on what to do in order not to fall under the spell.
Hold onto the classics. Use them as your fly-swatter.
You will be visited by growing swarms of buzzing insects and you, pop! blast! whoosh! you turn fly swatting into an art. Fit it with ingenious devices. Use an electric model. Try and be precise as you strike.
Rest assured: You will earn ample divine reward for every sincere swing of your swatter: «Allah does not let the wage of the good-doers go to waste (Innallāha lā yudī`u ajra’l-muhsinīn)».