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| Should Prostitution Be
Decriminalised? Dr. S. M. ad-Darsh Basic Principles: 1. Criminalising (making something illegal)
or decriminalising (making it legal, or at least tolerated) is the
prerogative of Allah; 2. When the text of the Qur'an or the
Sunnah are authentic in their authority and clear in their meaning then no
one has the authority to rule over them; 3. The legality or illegality of a practice
should follow the Qur'anic maxim: "To make lawful to them what is
good and forbid them what is evil" (7:157). 4. The honour, integrity and chastity of
the male and the female is one of the five universal principles protected
by all revealed religions. The moral atmosphere in many societies
which are increasingly secular in outlook, and where legislation reflects
the norms and customs of the culture and practice, has become 'liberal'
and individuals have the 'freedom' to indulge in acts which give them
personal satisfaction, as long as they do not infringe upon the rights of
others. Such a moral atmosphere may justify the decriminalisation of
prostitution. Prostitution, it is argued, is not worse than homosexual
practices which are accepted, legalised and tolerated in societies
nowadays. For a man or a woman prostitute, the difference between their
action and that of lesbians and homosexuals is the degradation of the
human body by charging a price for hiring it. Those who argue in favour of
decriminalisation say that this is an activity deemed to entertain the
paying partner, as a dancer or an actor entertains those who watch them
act. After all, legislation nowadays is responding to the notion of
personal freedom and the absence of coercion in the profession of
prostitutes. This type of argument is gaining ground in modem 'tolerant'
society. The Synod Committee on social matters showed in a recent report
that it was in favour of considering sexual relations outside marriage as
no longer sinful, and this goes a long way towards helping the second act,
prostitution, win its argument for decriminalisation. For Muslims the question of legality is
entirely outside the scope of human power. It is purely the prerogative of
Allah, our Creator. To assign this area to a human being is to give that
person, institution or organisation the right to be worshipped. When the
Qur'anic verse, "They have made their rabbis and their monks, and the
Messiah, the son of Mary, as lords besides Allah", ( 9:31) was
recited in the presence of Adiyy b. Hatim, a convert from Christianity, he
said: "O Messenger of Allah, they did not worship them". The
Messenger said to him: "Did they not prohibit for them what was
legal? Did they not allow them what was prohibited?" To this Adiyy
said: "Yes". The Prophet then said: "This amounted to
worshipping them". The Qur'an has made clear it that no one has an
authority except Allah. In the Qur'an Allah says: "Do not (falsely) declare: "That
is lawful and that is forbidden, in order to invent falsehood about Allah.
These who invent falsehoods about Allah shall never prosper"
(16:116). Turning to the Qur'anic attitude towards
prostitution we find that, as with many social practices that it aimed at
reforming, it moved in a gradual way. Prostitution was widely practised in
a number of forms and it was tolerated and accepted as one of the social
practices. It was condemned in a number of early Makkah Qur'anic verses as
an immoral practice which was prohibited by Allah, but there was no
specific punishment for it. In the Qur'an we read: "And these who
do not invoke another god, and do not slay the living soul, which Allah
has forbidden, except by right, nor commit adultery - and any that does
this (not only) meets punishment (but) the Penalty on the Day of Judgement
will be doubled to him, and he will dwell there in ignominy..." (25:
68). On this occasion the Qur'an was portraying a decent picture of the
morality of the servants of the Compassionate and giving the severest
warning to those who behave otherwise, but the punishment mentioned was in
the Afterlife. The same attitude is seen again in "Do
not approach adultery for it is an indecent thing and an evil way"
(17:32). It can be noticed here that the command to keep away from coming
near to adultery is explained rationally - that it is an act of
degradation, lewdness and a dangerous trend in human society. But even
with this rationalisation of the prohibition there was still no
punishment. But once the Muslim community was
established and the authority of the Messenger of Allah was confirmed and
was free from subjugation to any other social order, the rules and
regulations dealing with this deviation in human behaviour were revealed
to the Prophet to put into practice. An early sign of these new
regulations came in Surah 4, verses 15-16 where it was prescribed that
women who commit adultery were to be imprisoned indefinitely until their
death or until a new regulation came. Verses 16 prescribed some sort of
punishment for men who were guilty of homosexual acts until they were
deterred from this heinous crime. Soon afterwards the final regulatory and
prescribed punishments were revealed in Chapter 24, The Light. The first
verses of this chapter set out the regulations specifying the punishment,
the establishment of the crime, the different categories of those who
commit it (virgin or married), the prohibition of marrying those who are
known to indulge in this act, and finally the prohibition and punishment
of those who falsely accuse someone of committing this crime. The
statements of the Prophet came to expand and detail all the rules and
regulations on this matter. As a result, any physical relationship outside
marriage was criminalised and punishable. A whole core of legal regulatory
ordinances became part of the penal Islamic legal system. It is now firmly
established that this act is permanently penalised, criminalised and
punishable physically as well as socially, and no-one except a
non-believer, would argue about its nature. There are many safeguards and mitigating
circumstances to protect the innocent and to stop speculative talk about
the integrity and good nature of those who may be involved. But these are
legal protective and preventative measures for cases where the crime was
not established, and do not in any way infringe upon the validity or the
applicability of the rules, and definitely not their stoppage or
abrogation. The Nature Of Regulations The Islamic rules and regulations are not
arbitrarily imposed upon human society, They follow a rationale given in
the Qur'an itself and reflects the spirit of care, compassion and
reasoning. This is clearly stated in the Qur'an, giving the general
framework of the Islamic legal system. In Surah 7, verse 157, Allah Most
High defined the mission of the Prophet in terms of these moral and
rational concepts "….he enjoins on them what is good and forbids
them what is evil, and he makes the pure things lawful for them and
forbids them from the impure, he relieves them from their burdens and
frees them from the fetters which were upon them. So those who believe in
him and support him and help him (in his task), and follow the Light which
has been revealed to him, those surely attain success. " So Muslims
believe that this is the aim of the Islamic way of life in general and of
the rules and regulations in particular. Any particular legal issue has to
be judged in the light of this general moral framework. The Aim Of This Particular Piece Of Legislation Beside the general moral framework of the
Islamic legislation, in every particular issue there are certain
objectives to be attained. The family in Islam is the bedrock of the
social order. It has to be built on a solid foundation which would allow
it to survive the challenges, the tensions and the strains of a life-long
relationship. It has, at the same time, to cater for and protect those who are involved in it - wife, husband, children and all those who have a stake in its stability and continuity. There are basic legal obligations between all these members, those who are covered by the term 'extended family'. The honour of those who are involved is a very important concept as far as the good name of relations is concerned, as far as the responsibility, both morally and financially, for the upbringing of the children is concerned and as far as those who are entitled to carry the name of the family and inherit its fortune are concerned. All these rights stem from a clearly established relationship. The safety and tranquillity of those who live in the same area, and the eradication of the sources of tension and conflict are also important. All these are legitimate objectives which have to protected and realised. The Question, Finally, Is Whether There Is Any Need, Within The Islamic Social Regulation, For Prostitution? The answer to this question is to be sought
in the regulations dealing with the sexual relationship. In Islam, sex is
considered to be one of the most enjoyable aspects of life. In the words
of this life, "Life is sheer enjoyment. The best of its enjoyment is
a decent good wife." In a Hadith the Prophet (s.A.w.) said: "The
faithful has not acquired a greater thing in this life after his faith in
God, than a decent, good wife. If he looks at her he will be pleased, if
he asks of her something she will oblige and if he is away she will keep
chaste and look after his wealth." He advised young people who were physically
and financially able to marry to get married, for this is the best way to
preserve young people's chastity and integrity. Allah Most High commanded
the guardians of those who are in need of marriage to help them to
accomplish it. The Qur'an went on to give that good
promise: "And marry those among you who are single and the virtuous
ones among your servants, male or female, and if they are poor, God will
provide for them out of his bounty," (24: 32.) Al-Islam did not put a strain nor impose
restrictions on those who wish to get married, male or female. Once
married, the financial responsibilities fall upon the shoulders of the
man. Both are to live within their own means. If their earnings are not
enough the state should take care of them. If there is no such social
system, local communities should share among themselves the means to
enable families to survive in an honourable, but humble way. There is no reason for men or women to
claim that they have to resort to this illegal immoral practice out of
financial or physical need. Marriage is an easy, simple, natural way of
satisfying the basic human need. Only when people become greedy,
materialistic and unprincipled do they resort to this heinous practice,
which spreads diseases and illegitimacy and brings into this world
children who suffer the consequences of the mistakes of others. Allah Most High says in the Qur'an:
"Indeed those who love that obscenity should be spread among the
believers, shall have a painful chastisement in this life and in the
Hereafter, and Allah knows but you do not know," (24:19). And Allah says the Truth and guides to the right way. Shaykh Syed Mutawalli Ad-Darsh. 9 August 1996. Source: I don't recall where I got this
article from, if anyone knows please let me know so I can credit the
source. Thanks. Uzma
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