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| Applying the Concept of
"Limits" to the Rights of Muslim Women 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 cannot 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 9-12 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 verse 9 comprises the general law of inheritance, which represents
mathematically a hyperbola. The continuation of verse 9 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
dress (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. Polygamy 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 looses 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 Sūrah 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 Sūrah 4),
and in verses 129-130 Sūrah 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 Sūrah 24 and verse 59 Sūrah 33).
Verse 31 Sūrah 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 Sūrah 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 Sūrah 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 Sūrah 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 Sūrah 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 Sūrah 24 gives the God's limit in
profession for women, two professions are forbidden by God which are:
prostitution and indecent exposure. |