HASAN MAHMUD
HELL BROKE loose when on 08 March 2008 Bangladesh government accepted the National Women Development Policy 2008 that includes gender-equality. The number of roaring Muslim organizations and their followers threatening of civil war is simply too numerous to count. The government is declared “Out of Islam” and “dissolved”. Mosques and Friday prayers proved effective tools to engage praying Muslims in Holy Resistance to gender-equality that may result into equal inheritance. They have a point. Chapter 4:11,176 “Explicitly Command” women’s half inheritance. Government was quick to submit to the threat and declare no law would be passed against Quran-Sunnah. Nobody asked if the Quran locked world-Muslims in unequal inheritance forever. Or, if there was a mechanism given by the Quran, Prophet and his companion to upgrade inheritance according to social evolution.
We know that interpretations of Quran/Sunnah are often poles apart and conflicting. But let us accept the argument of “Explicit Command” and look at few of hundreds of “explicit commands” of the Quran and Prophet. The references bellow the list are mainly from “Principles of Islamic Jurisprudence” by Dr. Hashim Kamali, one of world’s most famous Islamic Jurists, if The most famous.
1. Don’t speak loud in front of the Prophet – Hujrat 2
2. Don’t fight in Honoured months – Bakara 217
3. Don’t transgress the limit of Saturday – Bakara 65, Nahl 124, Nisa 154
4. It is permissible to sleep with slave-girls – Ahzab 50, Muminun 5, 6
5. War booty belongs to God, Prophet, poor, winning soldiers etc - Anfal 1,41, 69
6. Kill infidels– Tawba 5, 29, Anfal 12 etc
7. Take Jijiya tax from non-Muslims – Tawba 29
8. Drink camel’s urine – Bukhari Vol 8 Hadis 797
9. Free slaves – Nisa 92, Bukhari Vol 3 Hadis 695, 696, 720, Vol 4 Hadis 255.
10. Women’s leadership is unacceptable – Bukhari Vol 5 Hadis 709
11. Child marriage is allowed – Twalak 4
Today even the proponents of women’s half inheritance cannot observe many of these commands even if they want to. It is possible to observe many others but they won’t. But that doesn’t make them apostates because those commands have particular contexts. Imam Shafi tells us all explicit commands are not for everybody (his famous book Risala) and so not for ever.
The Quran explicitly commands to severe limbs of thieves, take Jijiya tax from non-Muslims and permits marriage with Jews/Christian women. Prophet said Omar would be the one could there be a next Prophet. But Omar (A) did not take Jijiya from some particular parsons and two non-Muslim tribes including Muallafa, (B) did not severe limbs of thieves during famine, and (C) barred marriage with Jews/Christian women for sometime. Based on Chapter Tawba 60 the non-Muslim tribe Muallafa used to get Islamic charity since the time of Prophet. Omar banned it too. Not only Quranic “explicit commands”, Omar stopped observing Prophet’s examples no. 203, 204, 205 and enacted 206 (Bukhari by Azizul Haque Vol1 page 197). He also changed the decade’s old way of observing Tamattu Hajj. Indeed he did not violate the Quran/Prophet but obeyed with their explicit teaching.
What is that teaching?
Prophet changed many of his explicit instructions with changing social circumstances. He approved Mutah (temporary) marriage for long and stopped it after Khyber battle. Previously approved prayers twice daily was changed to five times after his Meraj. He also changed his instructions about visiting graves and preserving meat. Quote: - “During Prophet’s time some changes in the Quran and his examples took place. The main reason was changed social conditions”. He left this eternal example for our Islamic leaders because people’s welfare is in it.
God says: - “None of Our revelations do We abrogate or cause to be forgotten, but We substitute something better or similar” (Bakara 106) and “When We substitute one revelation for another - and Allah knows best what He reveals” (Nahl 101). There are some Quranic updates about intercession hereafter (An Naba 38, Bakara 48, 123, 254, Nisa 123, Anam 51, 70, Al Zumar 19 etc). God knows best about it. About worldly affairs, as Bukhari reports: - “There was revealed about those who were killed at Bir-Mauna a Quranic Verse we used to recite, but it was cancelled later on. The Verse was: "Inform our people that we have met our Lord. He is pleased with us and He has made us pleased" –Vol 4 Hadis 69. Another example: - “Ibn 'Umar recited the verse: "They had a choice either to fast or to feed a poor person for every day, and said that the order of this Verse was cancelled” (Vol 3 Hadis 170). Facing Kaba during prayer was instructed after many years of facing Baitul Muqaddas in Jerusalem (Bakara 142, 144). Waiting period of widows was changed from one year to four months ten days (Bakara 240, 234). Replacement of verses on war-captives in chapters Anfal and Tawba is well known.
Dr. Kamali says:-“The basic philosophy of Naskh (replacement of one explicit instruction by another) is thus generally acknowledged to be a realization of benefit for the people….This was due mainly to the change of circumstances in the life of the community”. All scholars agree that it is erroneous to apply the past in present “Without reference to the then prevailing conditions” – Mawdudi, “Islamic Law and Constitution” –page 236.
Adjusting not Quranic values but social systems according to current conditions is one of the, if not the most important instructions given by the Quran, Prophet and his companion to Islamic leaders to follow eternally. It is included in God’s last revelation “This day have I perfected your religion for you,” (Chapter 5:3). Otherwise world-Muslims will be fossilized in the past. Islam wants a flow of values within the frame of present. Muslims benefited by updating many instructions in distant and recent past, including stoning during Hajj and time of prayer in northern hemisphere. Islamic leaders islamically supported law of equal inheritance in countries such as Senegal, Morocco and Tunisia. None called them apostates.
Opponents of equal inheritance argue that women must inherit half of men because they inherit from other sources that men don’t. The math works well but works only in that tribal society 1400 years ago. Reality changed from “Men are the protectors and maintainers of women…..they support them from their means” (Chapter 4:34) to men and women are protectors and supporters of each other in all respects including financial strength. So either the law has to be updated or the society has to go back 1400 years that clearly is not possible. So the conclusion that - “To propound a permanent constitutional theory for the Muslim world can neither be realistic nor practicable” came not from Islam-bashers but one of Islam’s stalwarts, the “realist” Imam (Political thought of Ibn Taymiyah- page 107).
In present unitary family none of parents, brothers, sisters or relatives can protect women like in the tribal society. No government can feed or shelter all its destitute women. The bride-money is negligible to sustain women lifelong; it can also be a pair of shoe (Sharia the Islamic Law - Dr. Abdur Rahman Doi - page 163, 164) or some memorized Quranic verses as per a Sunnah (Codified Islamic Law Vol 3 page 976). The argument of husbands’ responsibility to maintain wives does not work either. The responsibility is defined by Sharia law of past and present as: - “The husband is not obliged to pay for his wife’s cosmetics, doctor’s fees, the purchase of medicine for her, and similar expenses (though he must pay for expenditures connected with childbirth) – (Shafi' Law m.11.4 and Hanafi Law Hedaya page 140), and – “Obligation of a husband to spend on his wife is limited to food, water, cloth and house. Anything else will be charity” – (Page 867, Quran’s translation by Muhiuddin Khan, printed in Saudi Arab by the assistance of the King).
We must realize why Quran took three steps to stop drinking when it could have stopped it in a moment. We must realize why Quran took so long to uproot slavery (Chapter 47:4) when it could have stopped it in a moment. Unlimited wife-beating, unrestricted polygamy, divorce wives on whims, no inheritance and witness for women etc are legacy of not only past Arabs but human societies. All those evils could have been ordered uprooted any morning. But a deep study of Quran shows it preferred social evolution over revolution. Because social-disaster is certain to follow even if a good system is thrown on people before they realize it. So we see Quran established little by little whatever people and the society could consume. First it put blockades on every women-oppression and then defined the goal of gender equity and equality as – “They are your garments and ye are their garments” (Bakara 187). Our leaders must lead us in that path; equal inheritance is only one of the steps.
Indeed there are violations of “explicit command” to oppress women. For divorce Chapter 65:2 justifiably instructs husbands – “take for witness two persons from among you”. But Codified Islamic Law Vol 1 Law# 344 decrees: - “Witness is not a condition for husbands to divorce”.
There are punishments in Sharia Law for Hudood crimes such as murder, theft, robbery, drinking, State-rebellion, apostasy etc. But look at the Sharia law no. 914 C of Codified Islamic Law Vol 3 – “Head of Islamic State cannot be charged for Hudood crimes”. A similar law is there in Hanafi law page 188.
If one talks about violation of Quranic explicit commands, this is it. Equal inheritance of men and women is not violation of the Quran. #
First published in News From Bangladesh, March 25, 2008
Hasan Mahmud, a practising Islamic scholar who has credit of dozens of articles, books and video documentaries on Sharia and Jihad. He could be reached in Toronto, Canada fatemolla@hotmail.com
Islam is a religion and not a state
ReplyDeleteThese legislative laws in the Quran and the prophet's Madina were considered progressive and modern in the 7th century which is why nobody, not even the pagans, objected to it. The pagans objected to theological and ritual issues and not the state legal system since it was appropriate to theirs and progressive according to their time period. Issues like the kind of food to eat and deity to worship were more problematic for the pagans than inheritance laws or penal codes applied by the 1st Muslim community in Madina.
The state legislations mentioned in the Quran are not religious but civil. They were to be applied to Muslims and non Muslims in Madina alike. The mission of the prophet was not to govern and rule but circumstances led him to that and God guided him to establish a civil society that will ensure stability and justice based on 7th century standard. There is no mention on the Quran of any legislation not relevant to the prophet's Madina. If it was the intention of God to establish a state legal system along with religious legislation God would have certainly layed a framework that deals with legal issues outside the prophets' Madina community's legislative needs. Issues that were not relevant to that Madina community but were needed by later generations of Muslims. But He did not since it was not the mission of the Quran to do so. The job of the prophet as the Quran says is to convey the religious message. However circumstances led to the prophet establishing a community and this led to God guiding His prophet towards establishing a legal state structure as part of His guidance and support for His prophet.
Invite (all humankind) to the path of your Lord with wisdom and goodly exhortation and argue with them in the most kindly manner, for, indeed, your Lord knows best as to who strays from His path, and best who are the right-guided. (16:125)
Had your Lord so willed, all those who live on earth would surely have attained faith, will you then compel people, against their will, to believe? 10:99
And so, exhort them your task is only to exhort; you cannot compel them to believe. 88:21-22
Which is why we see there are gender differences in the state legislations in the Quran but no such differences in the religious legislations. Men and women fast, pray, perform haj, observe the halals and harams, zakat , die and resurrect and get judged exactly the same way as men.
"And among His signs are the creation of the heaven and earth, and the variation in your language and your colors; verily in that are signs for those who know" (30:22).
"O you mankind! We have created you from a single pair of male and female and made you into nations and tribes so that you know each other. Verily the most honored in the sight of God is the one who is most righteous" (49:13).
All the functions of the religious legislation relies on constants such as the movements of the sun, movements of the moon, usage of water and direction of Qibla. These are constants and not changing. They remain the same whether in its shape, direction or time. It is apllicable and accessible to everyone, whether rich or poor, male or female or ignorant or intelligent. The theological issues are also constant and beyond change. Humans do not control angels or past prophets or the resurrection from death or heaven or hell. These are constant theological realities beyond the scope of human evolution and progress and are attained by faith and faith alone.
However the state legislation in the Quran does seperate in some situations between gender and also between slaves and free men as this was the social and political milieu of the 7th century. Just as many modern state frameworks today seperates between citizens and non citizens, or between various professions or even legal statuses. God however does not discriminate between a man and woman, between a slave and a free man or between the various legal status of individuals when it comes to religious legislations as God is not a socially and culturally evolving entity as humans are. It was God's wisdom to establish a community with the legal and political norms of their time or else it would not have been seen by its intended targets as fair, just or even applicable and would not have achieved a stability enabling the Madina community to spread the Quran and the religious legislations needed by future Muslim adherents. It was a legislative framework appropriate to the tribal communities that existed in 7th century Arabia.
O ye who believe! the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty 2.178.
We must seperate between religious and state legislations in the Quran and also identify what are the situations that was relevant to the 7th century Madina community and what are the issues relevant to us today. The concept of Muslim orthodoxy that emerged more than a century and a half after the prophet during the Abbasid era by the hands of Imam Al Shafi and company failed to do so. It simply relied on mimicking the practice of the 1st Muslim community in everything from religious functions and rituals to a legal and political code that became according to this orthodoxy also the last and only community. Thus depriving Muslim communities down the ages of any progress. A religious tradition and orthodoxy that succeded in theory but remained just that, a theory. Never able to be fully implemented in practice but always successful in depriving alternatives.
It relied on the necessity of compiling information about that 1st Muslim community with all its details and specifics since the Quran and the rituals that spread with the early generations of Muslims did not provide that information. They never asked themselves why the prophet nor his companions bothered spreading details of the legal codes and juristic practices and decisions of the prophet's Madina. It assumed the establishment of the legal and political codes was the intended purpose of the prophet's teachings and message. Many times it contradicted other Quranic verses about no compulsion in religion and the verses in the Quran reminding the prophet his duty is simply to convey a message and not to compel.
There is no compulsion in religion, for the right way is clearly from the wrong way. Whoever therefore rejects the forces of evil and believes in God, he has taken hold of a support most unfailing, which shall never give way, for God is All Hearing and Knowing. 2:256
But if they turn away from you, your only duty is a clear delivery of the Message .16:82
Through abrogation, contradictory legal opinions and prophetic traditions which they claimed to have been passed to them across the ages that seemed to support their outlook, they somehow manage to find a way out. A way out of the contradiction between a religious state whose job was to enforce laws and no compulsion in religion.
The orthodoxy that emerged during the 2nd and 3rd century after the prophet failed to appreciate the historicity of the 1st Muslim community and relied on the convenience of mimicking. It left the Muslim masses in the peculiar situation of irrelevancy and contradiction in the modern era. A contradiction between theory and practice. A contradiction many Muslim societies live to this day. While a group of Muslims saw the Taliban as the ideal Islamic state, others saw just another pre-medieval state common around the world during the 7th to 12 century.