Uṣūl al-fiqh (Reflecting on the Qur’an Series)

“Don’t ever take a fence down until you know why it was put up.” G.K. Chesterton

On the 25th May 2018, citizens of the Republic of Ireland voted 66.4% to 33.6% in a referendum to repeal the Eighth Amendment of the Irish Constitution, enshrining into legislation the right to terminate a pregnancy. 

This event brought the question of the Islamic position on abortion back into the spotlight, with numerous parties espousing and defending their respective positions. Opinions range from abortion being explicitly forbidden (حرام) in all circumstances, those that say it is permissible (جائز) only in certain circumstances and then those who say it is permissible in all circumstances. The proponents of these positions all attempt to defend them by using the sources of Islamic Law (Qur’an, Sunnah, Ijma’, and Qiyas). 

A hotly debated topic such as abortion in Islam requires scholars and experts in the field to provide their legal opinion on abortion in different circumstances, another important question needs to be asked:  

Why? 

If your position is that abortion is prohibited in Islam, is there scope within Islamic law to understand why this is the case? The “why?” question, for many legal positions, is a difficult one and requires depth in knowledge of Islamic law, and the methodology of Islamic law, or Islamic legal theory (أصول الفقه). A crucial part of this is how the Arabic language is understood and used in the Qur’an, and what conclusions can be drawn from it. 

Take, for example, the obligation of prayer. As Muslims, we all know and believe that the five daily prayers are obligatory. However, could we answer the question of why this is so? 

To answer this, a scholar of Islamic law would look at the verse of the Qur’an: 

The word اقيموا (establish) in this verse is in the imperative form – it is a command (أمر). Given that such a command is apparent (ظاهر) in its obligation, the scholar would thus conclude, though the language of the Qur’an, that prayers are obligatory. 

Alongside the language of the Qur’an, Islamic legal theory also looks at the higher purposes of Islamic law and provides a framework for legal rulings. Contentious topics such as abortion require a deep analysis of the sources of law from different perspectives, including the linguistic perspective and whether the ruling fits with the higher purposes of Islamic law, such as the preservation of life – a crucial factor to consider for both the mother and foetus. 

Going back to G.K. Chesterton’s quote, it is important that we understand why the fence has been put up before deciding whether to tear it down. We may know the conclusion of a jurist’s endeavour, however, the discussion around these important topics would be more enriched with a greater appreciation of the methodology behind the result.