In a recent BBC program called 'Daughters of Abraham', some Muslim interviewers claimed that parts of the Qur'an were left open to interpretation. That meant that they were subsequently interpreted by scholars who held rather unfavorable attitude to women. They also claimed that the Qur'an was interpreted 1400 years ago in a highly male-oriented society with very little participation by women in the original interpretation. Please comment.
Ever since my early years in religious elementary school, I have been reading about the position of women in Islam and how fair or unfair Muslims are to their women.
Perhaps this is the single most misunderstood topic in Islamic law. It is often said that Islam does not give equal status to women, with just as frequent denials by the advocates of Islam. With the western civilization making a great issue of the superficial equality between men and women, and achieving success in showing it as genuine, many of those who look up to the West for social values accept as a fact the claim that Islam does not extend fair treatment to women. Such a claim cannot stand to proper scrutiny. That Islam maintains equality between the sexes is a fact that can easily be proven by looking at the duties Islam demands from men and women and the privileges it grants to each. When you look at these, you find that men and women are asked to perform the same sort of duties, in equal assignments.
If any has a privilege over the other, it is the woman. Moreover, when men and women perform the same duty they receive the same reward. differences are minimal and they are occasioned by the physical and social differences which equip each of the two sexes for the tasks they are supposed to perform. Yet some voices hostile to Islam maintain that god's final message to mankind treats women as inferior. Nothing could be farther from the truth. They may pick on certain aspects of Islamic law which may appear to casual examination as unfair to women. But they only need to take these within the context of Islamic society and the tasks it assigns to men and women in order to realize that Islam has taken proper care of women and ensured their equality with their brothers.
Unfortunately these hostile voices are often echoed by people in our communities who have not made a proper study of Islamic teachings. Justifications for such a view are often sought and these normally concentrate on aspects as the ones mentioned by those interviewees in the BBC program. Take for example the claim that scholars made unfavorable interpretation of the Qur'an.
This is certainly absurd, because the greater the status of a scholar, the fairer he is to women, particularly because of the strong and clear injunction by the Prophet to all Muslim men to "take good care of women." No scholar worthy of his name would listen to the Prophet's words and then make an interpretation of the Qur'an that is unfair to women. If he does, he is violating the Prophet's own instructions when he is the one who urges all people to do what the Prophet has advised.
Furthermore, they are always keen on attaching a local color to Islam. They speak of it as a product of Arabia at a practical time of history. That reflects the total ignorance of any one who makes such a claim. Islam has not come from any particular society, and it is not aimed at a particular community. It is the religion God has chosen for mankind in all periods of history. It cannot be then confined to any particular race of people or to a geographical area or to a period of time.
Besides, what interpretations are these people talking about? Have they read all the provisions of Islamic law for women? Had they done that, they would not be making such a claim because they would then realize that no law has been fairer to women. The Problem with such people is that they make judgments which are taken as intellectual points of view when they would not accept a judgment made in a similar fashion on anything related to this world. How would literary circles, for example, accept a critical view on a work of literature by someone who has not read it, or on a play by one who has not seen it? Yet views on Islam are often treated with respect without making sure of the credentials of those who are making them. How strange!
• Laws: Making in the Islamic context
A religious teacher working in South Indian state of Tamil Nadu (having studied in the Islamic University of Madinah) has been stressing most emphatically that Muslims can only follow the Qur'an and the Sunnah of the Prophet. There are no other guides or sources to follow. In scholarly books, however, consensus, or "Ijmaa" and analogy, or "Qias", are mentioned as sources for lawmaking. Many people have found the discrepancy most confusing. It will be most appreciated if you could clarify this apparent contradiction.
I will start by saying that there is no contradiction between the two opinions advanced by the teacher from the Islamic University of Madinah and the written work which has mentioned the other two sources. This is due to the fact that both the other procedures of consensus and analogy can only operate within the framework of the Qur'an and the Sunnah, or Hadith. This places them within the criterion established by Islam which makes the Qur'an and the Sunnah the only acceptable lawmaking authority.
What your scholar has been saying is indisputable. To rely on the Qur'an and the Sunnah is the basic requirement of Islam. Indeed, it is the practical implementation of the declaration by which a person becomes Muslim. That declaration states: "I bear witness that there is no deity save Allah and I bear witness that Muhammad is Allah's Messenger." As you realize, this declaration is made of two parts. The first stresses the Oneness of Allah as the only God and Lord in the universe. This means that He alone has the authority to legislate. Whatever legislation He enacts must be obeyed by all human beings. The second part makes it absolutely clear that it is only through Allah's Messenger, Muhammad, peace be upon him, that we receive Allah's commandments, instructions and legislation. There is no other way for those to be conveyed to us. Anyone who claims a role to communicate to us a legislation, other than the Prophet Muhammad, peace be upon him, is an impostor.
Allah has given us a detailed code to implement in our lives. However, no legal code which aims to be applicable to all communities in all periods of time can give in advance a ruling for every situation human life may present. As human life develops, certain things or practices are discarded while new ones are adopted. Changing situations require different rulings. This is the reason why the lawmaking authority in every country provides for the repeal of past laws and the enactment of new ones in their place. This cannot be done in Islam, because the authority to legislate belongs to Allah. No one can repeal Allah's law. How do we, then, deal with developing situations? To answer this, I have two Hadiths to quote:
The Prophet sent his companion, Moath ibn Jabal, to the Yemen as a governor. Before Moath left, the Prophet asked him, "How will you adjudicate in matters that will be put to you?" Moath answered, "According to Allah's Book (i.e. the Qur'an)." The Prophet then asked him, "What if you find nothing to guide you?" Moath answered, "Then according to the Sunnah of Allah's Messenger." The Prophet repeated his question. "What if you find nothing to help you?" Moath said, "I will use my discretion, making every effort to arrive at the right decision." The Prophet said: "Praise be to Allah who has guided Allah's messenger to implement what pleases Allah and His Messenger."
The Prophet is quoted to have said: "My nation will never agree on something which is wrong."
These two Hadiths give us the basis on which analogy and consensus rely as legitimate sources of rulings. We note that in the first Hadith, the Prophet refers to the possibility that a ruler or a judge may find nothing in the Qur'an or the Sunnah to help him arrive at the right ruling in a certain case. The method of deduction explained by Moath is one of scholarly discretion. What this means is that he will consider what may be analogous to the case in hand of matters that have a clear judgment in the Qur'an and the Sunnah. This then is scholarly discretion. The Prophet was pleased with this method and stated that it was satisfactory to Allah and to himself. The second Hadith is clear. It does not mean that every single person in the Muslim community should agree to something for the consensus to take place. What it means is that the scholars in a particular time may unanimously arrive at a certain decision. If they do, then that decision cannot be wrong.
A clear case which explains both matters is the verdict on smoking. When the question whether tobacco smoking is permissible in Islam was put to scholars in the past, many of them did not object strongly to it, although some pointed out that it was reprehensible or discouraged, due to its smell and other factors. However, when more recently the question was put to a number of scholars together with the medical evidence about the damage tobacco can cause to health, a verdict of total prohibition was returned by an overwhelming majority of them. Obviously, there is no specific ruling in the Qur'an or the Sunnah to tell us that smoking tobacco, as such, is forbidden.
Scholars, however, relied on the general rules which apply to Islamic law, such as the one which states that: "No damage may be caused, whether to self or to others." Since smoking causes serious health damage, it is considered forbidden. Some scholars also added that a smoker should not go to the mosque because of the bad smell of tobacco. In this, they have drawn on the analogy with garlic and onion. The Prophet says that a person who has just eaten garlic or onion should not attend congregational prayer in order not to annoy other worshippers. All this is a ruling based on analogy.
However, the question was put to ten leading scholars of the University of Al Azhar and to Dar El-Ifta in Saudi Arabia. Altogether, answers were given by fourteen scholars, twelve of them returning a verdict that smoking is completely forbidden, the other two put their ruling only a shade less than forbidden, making it as "strongly reprehensible." However, more and more scholars, everywhere in the Muslim world, are giving an ever clearer verdict of prohibition on smoking. Those who are still reluctant to make such a ruling are certainly less aware of damage tobacco causes to health. Hence, we see a case of consensus being progressively built.
If one day a large council of eminent scholars from all over the Muslim world is formed and it holds an annual meeting to consider cases and situations that are put to it, then the rulings passed by this council will enjoy a degree of consensus. Therefore, they will be binding on Muslims. However, if one or two scholars expressed a different view on a certain matter, each view is given its value, as long as it is based on a clear understanding of the question and a scholarly interpretation of Qur'anic and Hadith statements. An example may be given from the rulings published by the Fiqh Council of the Muslim World League, which may be considered as the nucleus of the council I would love to see formed. A few years ago, this council considered questions on insurance, and returned a verdict of prohibition on many types of insurance, allowing only the ones which may be included under the general title of "cooperative insurance".
One eminent scholar, Sheikh Mustapha Al-Zarqa, took a different view, allowing most forms of insurance. In its published decision, the council referred to this disagreement and stated that the view of Sheikh Al-Zarqa must be given its due respect.
I hope I have made it clear that whether we arrive at the decision through consensus or through analogy, we are following the Sunnah of the Prophet and not deviating from the Qur'an and the Hadith.
• Laws: Providing illegitimate rights
When my grandfather suffered a business setback, he was left only with a small vegetable shop that he owned and a small flat that he rented. From a young age, my father worked hard, helping his father in earning the livelihood for his family. He then took over all the business when his father could not carry on. He managed to marry off all his five sisters. About fifteen years ago a state government in India passed a regulation which made tenants the ultimate owners of two-thirds of the rented premises. If the property is to be sold, only one-third goes to the landlord and two-thirds of the sale proceeds go to the tenant. Now my father is thinking of moving to a better residence by selling this small flat and using the money for the purchase of the new property. We put the case to a scholar in our locality who said that since my father continued to pay the rent and take care of the family, he is entitled to retain the price of the flat and the shop. My aunts are not aware of this. May I ask you whether they are entitled to shares of the proceeds of the sale of this flat and shop?
The first thing to be said about this question is that governments may promulgate certain laws which they deem to be useful to the community in order to address a certain problem or redeem some imbalance. When a law is in direct conflict with Islamic teachings, Muslims must try not to take advantage of that law, putting the blame for gaining certain illegitimate benefits on the authority that had promulgated the law.
It is often the case that a law is tailored to try to gain some popular support for the government. It does not look at the question of right and wrong in any broad sense. Its purpose is simply to make the government more popular. An example may be provided by the tenancy regulations issued in a Middle Eastern country over a long period of time. Successive regulations prevented from raising the rent. As a result, tenants continue to pay today the same rent they agreed with their landlords forty or fifty years ago. At that time, the rent was fair. Now it is worthless. The property is still of great benefit to the tenant but is no longer of any benefit to the landlord who is the actual owner. Such regulations are unjust, but governments continue to be most reluctant to change them, because the change will not be popular. This is not an isolated case. Similar examples can be found in many countries of the Muslim world.
An unjust law or regulation does not give any legitimate right to the party who benefits by such a legislation. A government may issue an order saying that if a tenant has paid the rent of a property for so many years, he becomes its owner. Such a law has no validity in Islam, because the tenancy agreement did not provide for a possibility of converting the rent into a sale price. The case may be different if it is clearly stipulated at the beginning that the tenancy will eventually end in a sale of the property. The law of the country or of the state would then become applicable to such tenancy agreements and its provisions become part of the agreement itself. But to say that past agreements are changed as a result of a subsequent law is totally unfair and unacceptable in Islam.
I will give you a clearer case than yours. Suppose that a landlord of a property dies having no children, wife, parents or indeed any relations whomsoever. Suppose also that he had rented a shop or a flat he had owned to a particular person who paid the rent regularly for more than thirty or forty years. If both people were in your state in India, the local regulation would give that tenant the status of owner of two-thirds of that property. That ownership is not valid from the Islamic point of view, because it does not come about as a result of a sale agreement between seller and buyer, or as a result of a gift from owner to tenant, or as a result of inheritance by will or by Islamic system of inheritance. These are the only legitimate methods of transfer of ownership.
I hope the foregoing makes clear the question of the ownership of this small flat which your father has had on rent for many years and his father rented before him. The state government might have issued any law, but your father is not the owner of two-thirds of that flat. That flat is owned by the landlord only. Your father may wish to come to some sort of an agreement with him about buying the flat at a reasonable price, but that should be a new agreement, regardless of the unjust law of the state. If the landlord agrees to sell it to your father at a reduced price, then it becomes the property of your father and your aunts will have no share in it.
The case of the shop is different, because it was the property of your grandfather who died only a few years back. The fact that your father had been working there for such a long time gives him some special status, but not with regard to ownership of the shop. It remained the property of your grandfather and, as such, it formed a part of his estate. All his heirs had shares in it. I understand that your grandfather was survived by his widow, one son and five daughters. Therefore, his property is divided in this way: One eighth of all his property goes to your grandmother, the remaining portion of seven-eighths of the whole property is divided into seven portion with two of these portions going to your father and one portion to each of your five aunts. To make things simpler, the whole property could be divided into twenty four parts, with three parts going to your grandmother. The remaining twenty one parts form the inheritance of your grandfather's, with your father receiving six parts and each of your aunts receiving three parts. This division applies to the shop itself and the part of the business which was owned by your grandfather. If your father had any portions of the business as his own property, then the division does not apply to that. Since your father has been working in the shop for a long time, your aunts are entitled to receive from him rent of their shares in that shop. It may be that your father has spent so much on his sisters, and perhaps he has helped in their marriages. He may speak to them, explaining that each of them has such a portion of the shop. Either he would buy it from them or pay them rent. They should come to some agreement with regard to the ownership and the rent, without pressure. If any of them decides to retain her portion and requests rent from your father, he should pay her any agreed rent. The fact that he supported them in the past should not affect that situation. Whatever agreement they may come to must be amicable. His support to them will ensure great reward for him from God. He should be keen to retain that reward by ensuring that each one of his sisters receives her full share of the inheritance from their father.
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