By: Dr. Mohammed Shahroor – December 2000
Within the Islamic thought, one would come cross slogans such as “Islam is sound for all places and times”, and “Islam is the solution”. At the same time we have serious contemporary problems like: human rights, democracy, constitutional authority, and the rights of women. In solving these problems, several trends surfaced in the Muslim/Arab world, such as the following:
1- One Islamic approach is based on Arab-Islamic Legacy, represented by slogans like “Islam is the Solution” and “The Domain (hakemeyah) of God”. This approach uses the principles of Islamic legal theory that stopped developing at the end of the third and fourth centuries (Hijri). However, this approach can not solve the problem of democracy. It assumes that women obtained their rights during the lifetime of the Prophet (SAW) and hence any new idea like the right of women to travel alone, proper dress (fashion), and the right to vote and to be elected, would not be tackled. Unfortunately, such legacy had not provided any original solution to modern problems since it focuses on past contexts.
2- The liberal approach argues that all main issues of freedom and democracy, human rights at large, and the rights of women in particular, have been solved by many nations through human experience and reason. This approach separates religion from public life in pursuit of creating a secular state. The core issue of this human experience becomes the creation of civil society, in which the rights of women are secured. This approach has the problem of relation with Islam, since Islam is the central normative force for the people, standard of values, including political ones.
The people of the Middle East (Arab-Islamic States) have lived for centuries under political oppression, and they still do. Women have also been subject to political and social oppression sustained by the traditional understanding of Islamic legacy. Therefore, this legacy gives no help in solving the above mentioned problems. That is to say, if we want to adhere to an Islamic solutions we must formulate new Islamic Legal and Theological theories, which give room for pluralism, human rights, democracy, self determination, abolishing predetermination and fatalism. In order to do so, I have tried to make a new contemporary reading to the Holy Scripture. In order to start this reading I have differentiated between Islam and Islamization.
Islam as such is the Holy Book, therefore, it is divine and eternal and there is no need for a new Islam. Islamization is a human activity, which impersonates Islam, so Islamization is bounded by history and geography. After the first century of Islamic history, the principles of Islamization were created (derived) by Arab-Islamic Jurists, namely “Usul-al-fiqih”, (jurisprudence) and “Ilm-al-qalam” (theology). These principles were created within the framework of an oppressive political authority. Therefore, it is difficult, almost impossible, to find in the Usul-al-fiqih, both in its Sunni or Shia’ versions, a place for concepts such as “constitution”, “the rights of people” and “the rights of women”.
Now the Middle East is facing new concepts such as constitution, pluralism, civil society, democracy, opposition human rights and rights of women. The problem is how these concepts can be introduced in the Islamic thought and to make room for these contemporary concepts in Islam. This is what I call new Islamization or what I can call a contemporary reading of the Divine Book through which we can derive new legal theory and new jurisprudence in which we can derive the rights of women and find a new concept of polygamy, veil, the right for economical and social domination, motherhood, political rights, etc.
The crucial point in this approach is to differentiate between The Book and The Quran, which essentially means the differentiation between Prophecy and Message, between the functions of Muhammad (SAW) as messenger (Rasul) and as Prophet (Nabi). Muhammad (SAW) received a body of information having to do with prophecy, religion and the like. As a messenger, he was the recipient of a corpus of legal instructions in addition to that information he received as a prophet. The function of Prophet is religious whereas that of the Messenger is legal. Prophetic information is textually complex capable of varying interpretations, this is the Quran. On the other hand, the legal subject is univocal, but it is nevertheless capable of being subjected to Ijtihad, and this is the Book. Therefore there is difference between Ijtihad (legal verses) and interpretation (other verses). Ijtihad concerns such issues as polygamy and inheritance, while Interpretation concerns issues like the creation of universe and mankind.
In order to establish the notion of “Islam is sound for all places and times” and can tolerate pluralism in its structure, I had introduced the new theory of legislation called the “Theory of Limits”, i.e. God’s Limits (Hudud). Human legislation is permitted within (in between) these limits. The Theory of Limits may be described as follows: It is the divine decree, expressed in the Book and the Sunna, which sets a lower limit or an upper limit for all human actions and natural phenomena. Within these limits, human-based legislation can take place. If we look to verses in the Book we can distinguish six types of limits:
1 – The lower limits stand alone: (as an example verses 22-23 Sura4). These verses explain prohibition (Haram) imposed on marrying one’s mother, daughters, maternal and paternal aunt’s etc. Once these relations are excluded, marriage to other relations or non-relations becomes permitted.
2 – The Upper limits stand alone: as example of this limit may be found in (verse 38 sura5) “As for the thief, both male or female, cut off their hands”. Here the stipulated penalty represents the upper limit that should not be exceeded. However, the penalty may be mitigated, according to the objective conditions prevailing. In particular, it is the responsibility of an institution like a “parliament” to determine the theft which entail upper limit or consider lower than this one. Also death penalty is considered as the upper limit and is Islamically accepted. Legislative authorities can define the penalties through referendum, parliament, etc., within the limits stated by God.
3 – The third type consists of the lower and upper limits when they are conjoint. An illustration of this type, the Quranic verse related to inheritance (verses 9999-12 sura4). The general tenor of these verses is that the male has the equivalent portion of two females, and if there be women more than two, then theirs are two thirds of the inheritance, and if there be only one then the half. The part of the verse9999 comprises the general law of inheritance, which represents mathematically a hyperbola. The continuation of verse9999 and 12 are lower and upper limits of the inheritance of parents, wives and husbands. These limits cover all cases all over the world.
4 – The fourth type of God’s limits is when the upper and the lower limits meet together. It has been found that in all the Book and the Sunna only one verse is of this type (sura24 verse2) which states: “The adulteress and the adulterer, scourge ye each of them with a hundred lashes and let not pity for the twain withhold you from obedience to God, if ye belief in God and the last day, and let a party of the believers witness their punishment”. Here the upper and the lower limits are set at one meeting point, namely, one hundred lashes. This is the only case in Islamic legislation where we got a line without field of movement.
5 – The fifth type of God’s limits in which the curvature moves between the lower and upper limits but touches neither. The sexual relations between men and women exemplify this type. Beginning with a point above lower limit where the two sexes not to touch each other, the curvature moves upward in the direction of the upper limit where they come close to committing adultery but do not. From this type of God’s limits we can conclude that in all societies that separate men from women, this case is outside lower limit. And in societies where adultery is widespread, this case is touching the upper limit. That is to say men and women working together in factories or offices or studying together in schools and universities is quite acceptable Islamically and it depends on social development of society itself (traditions and customs) and Islam has nothing to do with it. This discussion calls us to discuss the women dress (Hijab).
6 – The sixth type of God’s limits: Where the legislation moves between a positive upper limit and a negative lower limit. Fiscal transactions illustrate the consistency of this type. The upper limit is represented by the payment of alms-tax (zakat). Since these limits are positive and negative, then there exists in between them a stage that is equivalent to zero. An example of this middle stage is an interest-free loan. This type of limits will solve the problem of bank interest where it has been mixed with usury (riba). As we have three cases:
a – Lower limit is to pay alms-tax to poor people who can’t repay debts i.e. to give money without expecting to be paid back. b – Zero case: where you give interest-free loan. c – An upper limit case: where you give loan with interest, but it should not exceeds the upper limit which is 100% for all period of loan whatever it was long.
Somebody will ask why have these limits have been discovered now and no one of Islamic jurists introduced them even from the time of Prophet. We can find the answer in the Quran itself. Where it is stated that Bedouins are very primitive and they are incapable to understand God’s Limits. Sura 9 verse 97, “The Bedouins are more entrenched in “kufr” and hypocrisy and likely to be ignorant of the limits which God revealed to his messenger”. Therefore, we are now better equipped to understand Qur’anic verses and especially verses of God’s limits.
Basing on theory of limits we can discuss the problem of polygamy, and veil (hijab). Before beginning discussion the problem of polygamy I have to state the following:
a – If polygamy does entail any social problem due to historical development of society and due to lack of women self-conscience, so let it be, and this what happened in Arabia when the Prophet (SAW) was alive. What happened with women during the life of the Prophet is a complete liberation and this case is very clear when the Prophet began the liberation of slaves. Hence, the liberation of women and slaves must continue after his death.
b – Also this applies to the problem of dresses (hijab), where the traditional dresses of Arabic women at seventh century became the standard. Here we see as well how was the seventh century frozen which mean losing vision of future. Hence the problem of polygamy is no longer prevalent in modern societies and can actually lead to more harm and corruption because justice in polygamy could not be rendered between different wives. This is an argument put forward by Islamic reformists like Muhammad Abdu.
Based on theory of limits we can understand the verses of polygamy in the Book. We begin with verses 4:2 and 4:3.
4:2 “Give unto orphans (yatama) their wealth. Exchange not the good for bad, nor absorb their wealth into your wealth”.
4:3 “And if ye fear that ye will not deal fairly with the orphans, marry of the women, with complete good will, two three or four, and if ye fear that ye cannot do justice then one only… it is more likely that ye will do justice”.
The limits revealed in these verses are of two types: Quantitative and qualitative. Quantitatively, the lower limit is marrying to single wife, whereas the upper limit is to four wives. This is the understanding prevailing among Muslims thus far. But the qualitative aspect of these verses is just as important to a complete understanding. The question, which was never asked, for instance, what sort of women is meant in these verses. They took “women” to refer to whole class of women, without any qualification. But the text of the verse does not allow for this generalization, for the phrase “if ye fear ye will not deal fairly with the orphans” is inextricably connected with what follows it, namely “marry of women”. That God did in this context allow a second, a third and a fourth wife, and that He did not mention the first wife is qualitatively, not quantitatively excluded from this permission.
The fact which inferred the text, that the women associated with the orphans are widowed mothers, and this is the only connection between the first part of the verse concerning orphan and the second part concerning marrying second, third and fourth wives. Otherwise the verse loose its meaning as the orphan in Quranic Arabic term means the child who lost his father and who is under the age of manhood (immature). Therefore, his mother is a widow without husband, and if the orphans are young children or babies their mothers are relatively young. Thus the permission to marry a second, a third and a fourth wife amounts in effect to a permission to marry widows, especially young ones who will bring with them to marriage their young children. This is the whole point behind the permission.
In addition to the first wife, who may not be a widow, and her children, the other co-wives along with their children too are the responsibility of the husband. The Quranic reference to “doing justice” must be seen, as bearing upon the husband treatment of his children from the first wife on the one hand, and of the widows’ children brought to the marriage with them, on the other. The Book enjoins men not to marry more than one wife if they cannot treat with complete equality and impartiality the young orphans who come to marriage with their widowed mothers. The last word of the verse 3 sura 4 confirms the notion that it is difficult to do justice, economic or otherwise, when there are many children in a single household.
Thus we understand that Book encourages men of financial means to marry widows who have young children, for this was deemed to be an effective way to provide care for the orphaned families, and we imagine that a big number of widows and orphaned families during and after wars. Also the Book exempt men from paying dowry to them as long as adequately provide for their orphaned children (verse 127 sura$), and in verses 129-130 sura 4 do not insist that these wives should be with full justice. He says in verse 129 that it is impossible, and therefore it is not required at all, because marrying widows is to do justice toward orphans.
This is precisely the point where the traditional jurists went wrong, because they were not able to understand the significant of the theory of Gods limits. This was due to the level of societies’ historical development at their time, and not due to their lack of intelligence. For instance, we make a comparison with a soccer match, where the two teams play within the borders of the field, not at the borderline. The difficulty of traditional jurists so to speak, is they are concerned only with the borderline and ignored the game within the field. At the same time they claim that Islam is sound for all timed and places. We can easily imagine how many probabilities of play 22 players could perform in the field. The answer is millions. Within God’s limits we can legislate millions of laws and make millions of court decisions (ahkam), and they are all acceptable and legislation could be done by human legislative authorities, in modern time, it is the parliament.
Therefore, the principle of consensus means majority voting in parliament or majority voting in referenda. According to this notion, this is the principle of pluralism in civil society. Therefore, in the modern Islamic State, Fatwas should be replaced by referenda and committees of Fatwas should be replaced by parliaments.
Women Proper Dressing (Hijab)
The issue of how women should dress is mentioned in Quranic verses (verse 31 sura 24 and verse 59 sura 33).
Verse 31 sura 24 says:”And say to the believing women that they should lower their gaze and guard their modesty, that they should not display their beauty and their ornaments except what (ordinarily) appear, that they should draw their veils over their bosoms and not display their beauty except to their husbands, to their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers or their brothers’ sons, or their sisters’ sons, or their women, or the slaves whom their right hands possess, or male attendants free of sexual desires, or small children who have no carnal knowledge of women, and they should not strike feet in order to draw attention to their hidden ornaments, And O ye believers! Turn ye all together towards Allah in repentance that ye Maybe successful”.
Verse 59 sura 33 says: “O Prophet tell thy wives and daughters and the believing women that they should cast their outer garments over their persons (when out of doors) that is most convenient, that they should be known (as such) and not molested, and Allah is Oft-forgiving most merciful”.
Verse 31 sura 24 gives the lower limit of women dress, and the Prophet saying of exposition of face and hands is the outer limit of dress. The verse 59 sura 33 gives the rules of how to move in between limits. The lower limit states that the women’s body can be exposed in two ways:
1- First, that part of the body, which is exposed by nature like face and hands.
2- Second, that part of the body, which is not exposed by nature.
The outer limit is to expose only face and hands. For the formal proper dress in the streets, works, parties, etc. verse 59 sura 33 covers this case, where it is stated that any women should dress in a manner that is socially accepted without challenging social decency and habits. At the same time the dress must be within the limits of God. These limits mean that nudity is outside God’s limits and covering all the body, including the face, is going also outside the Prophet upper limit. Therefore, most of the women of the world are dressed in between those limits. Also verse 31 sura 24 gives the God’s limit in profession for women, two professions are forbidden by God which are: prostitution and indecent exposure.