Justice for Half a Man

...this is a bunch of spin...no one buys it..get real

Veeresh # 9

I think your commentary and perception is right. As I have argued in the Synopsis that the body of law that a nation or a group of people enact for themselves is a sum total of the traditions, cultural norms, ethical values and social outlook of the society; Divine law is no exception. As far as Islamic law is concerned it is not immune to external influences either - if it were it would have died within first decade of advent of Islam. A classical example that is cited to illustrate the flexibility in the divine principles is a case during the second righteous Caliph Omar (ra) after Holy Prophet (pbuh). During Caliph Omar`s time the province of Egypt was struck by famine and drought and people started dying with hunger. At that time Caliph revoked the Hadd punishment of amputation of a hand for theft even though it is explicitly stipulated in Qura`n itself. That decision has been upheld by almost all jurors of almost all times.

There is diversity in the application of these principles because there is a diversity in the people who interpret these principles and turn them into laws. As far as your comment on diminishing sphere of these laws is concerned, I beg to disagree. Once again let me reiterate what I`ve argued in the Synopsis in this regard `` The said transition is inevitable as long as Muslims pledge their allegiance to their sources of code of ethics. The process that has started in almost all Muslim countries has been protracted for various reasons; one of the reasons being its implementation through legislation, which is a continuous, long, arduous and evolutionary process. ``

nazarhayatkhan # 10

Why all religions Hinduism, Judaism, Christionaity and Islam remain so pre-occupied with the sex issue. And each gives a rough deal to the woman - is it because it is finally the men who write the Rules.




Reply:

yaar wohi murghay ki ek taang or I can also cite the the Punjabi proverb that all night we sang the praises of Laila and Mujnu and in the morning one asked whether Laila was a man or a women. Bhai mere this article was an attempt to explore the nature of ``rough deal`` that Islam gives the women. I am not going to comment on other religions because topic under scrutiny here is the Islam, however, I must stress that no two religions are same. or as if you would put it ``no two religions are created equal``. I am assuming that you must have read the whole argument before commenting. It will, however, help me a great deal if you could point out what you perceive as a ``rough deal`` in Islam. In the name of sanity and rationality, if nothing else, shouldn`t we be more objective when we comment on these issues. After all you seem to be the greatest proponent of sanity, rationality, and objectivity; then why stop here.

Extending this argument further, I beleive that all religions are preoccupied with issue of sex because it is the sine qua non of the social contratct between men and women. There is no work around here; ignoring it is nothing but self-delusion.

Dost Mitter # 11

Thank you very much for your words of appreciation and for the time you took to go thru the article. Why Chowk? Because at Chowk there are considerably more people who disagree with me. Why should I put so much effort at a place to convince those who are already convinced? Besides I crave disagreement. Agreement scares me. It makes me feel stupid. As long as there is an objective criticism on my work I am quite happy being a punching bag for the people. The length of the article is formidable, I agree, but that was something I had to do as explained to Inquirer in my note below.

-I am quite biased in my opinions regarding the use of any immutable book as a reference for making laws for any society, as opposed to some very general first principles of morality.

As a matter of fact the law (any law but in this case Islamic law) is based on very few ``general first principles of morality``. Please keep in mind that the Islamic laws as we see them today have a 1400 years of history of evolution behind them as well. So now those general principles have evolved into a very elaborate body of law, argument, and jurisprudence. But since there is an 80 years of disconnect, since 1928, because of colonial occupation, as explained in the Synopsis, when we try to bridge that disconnect we extensively refer to the original sources of basic principles, which are Qura`n, Hadith, and Concensus. 80 years is a long time and world has changed a lot in this time.

-Notwithstanding my bias, since the laws are based partly on the crimes as defined in the Book and partly on the ahadith, should they, even the punishment under Hudd, be considered as divinely ordained? First, because the prophet was human and could have been motivated by human factors (it is alleged, for instance, that the punishment for the false accusation for adultery/fornication was imposed to quell some rumours spread against his favourite wife, Ayesha). More importantly, the ahadith themselves are of doubtful validity.

It is not ``alleged`` rather it is a fact that the laws of slander, fornication and adultery were descended after the ordeal of Ayesha (ra) was over. In our belief and in our Prophets words our Prophet was not a god incarnate or a super human being. He was very much human like us. He had to be if he was to become a role model. No one in the world can achieve the angel or god incarnate like perfection but we can follow a role model who is just like us. Prophet was not immune to his human shortcomings either. According to one narration Prophet once attempted to commit suicide when after he received his first revelation and then there was a gap of almost three years when no new revelation came. In his utter desperation he wanted to jump off a cliff when his wife Khaddija encouraged him and convinced him to be patient and have trust in Lord. This attests to the human nature of that man. There are hundereds of hadith on the subject that you have referred to. I can dig up the absolute correct version if you want.

Hadith are not of doubtful validity. As a matter of fact the verification of the authenticity of the collection of ahadith was completed within 200 years of the death of Prophet (pbuh). So now ahadith are classified as Qawi (authentic); Daeef (weak or un-authentic); and Qudsi (Exalted; it is the paraphrase of the God`s commands which are also repeated in Qura`n). An ordinary student of Ilm-ul-hadith (science of hadith) knows this classification very well and can immediately attest a certain hadtith belongs to which classification. For Islamic jurists ilm-ul-hadith is compulsory.

The gender issue is not the only one that is problematic in my view. I believe, the discrimination among witnesses, crimes, punishments, inheritence, etc. in Islamic jurisprudence, extends as well to differentiation among Muslims, ahle-kitab non-Muslims, pagans, masters, slaves, etc.

This is an unfair, and I assume, an uneducated opinion. I would prefer the word ``differentiation`` rather than discrimination. It is beyond common sense to define and stipulate a social contract between different entities of a society unless you define those entities. There is always some basis for this differentiation because no society in the world is monolithic. Even the most modern and most secular social contracts throughout the word differentiate among different entities in the society.

It is one thing to accept religion, along with all its encumbrances, as one`s faith (or a heriditary disease as characterised by the uncharitable!). It is quite another to seek scientific justifications for them. The latter will inevitably involve rationalising rather than a scientifice pursuit.
The topic under discussion is the different aspects of Islamic jurisprudence. Juresprudence is a science of reason and evidence. It is more scientific than the scientific procedure itself. So one must expect a lot of rationalizing for the sake of rationalizing. In the matters of dogma we adopt a different approach in the argument. In those arguments, what is, is what is.

Urstruly:
Congratulations on another well-researched article on Islamic jurisprudence!
I wonder if chowk is the right forum for a serious discussion of such articles. Its formidable length makes it unlikely that the article will be read fully by many (a summarised version would help). More importantly, when the article is written by a well-known interactor, such as yourself, the chances are that the reactions will be based as much on the perceptions about the author as the merits of the substantive aspects of the article.
I will come back to the some of the points later after I have reflected on the article a little more. But here are a couple of general points:
-I am quite biased in my opinions regarding the use of any immutable book as a reference for making laws for any society, as opposed to some very general first principles of morality.
-Notwithstanding my bias, since the laws are based partly on the crimes as defined in the Book and partly on the ahadith, should they, even the punishment under Hudd, be considered as divinely ordained? First, because the prophet was human and could have been motivated by human factors (it is alleged, for instance, that the punishment for the false accusation for adultery/fornication was imposed to quell some rumours spread against his favourite wife, Ayesha). More importantly, the ahadith themselves are of doubtful validity. For example, you have quoted the ahadith of a man coming to the prophet confessing his adultery; I have read the same ahadith but in terms of a woman coming to the propher with the same problem. Given this human element in both interpretation and recollection (involved in ahadith), shouldn`t all jurisprudence be based on ijema?
-The gender issue is not the only one that is problematic in my view. I believe, the discrimination among witnesses, crimes, punishments, inheritence, etc. in Islamic jurisprudence, extends as well to differentiation among Muslims, ahle-kitab non-Muslims, pagans, masters, slaves, etc.
-It is one thing to accept religion, along with all its encumbrances, as one`s faith (or a heriditary disease as characterised by the uncharitable!). It is quite another to seek scientific justifications for them. The latter will inevitably involve rationalising rather than a scientifice pursuit.

Urstruly

Good hard work in your area of interest. I fully respect your views.

But I have bigger questions in my mind:

Why all religions Hinduism, Judaism, Christionaity and Islam remain so pre-occupied with the sex issue.

And each gives a rough deal to the woman - is it because it is finally the men who write the Rules.

And too much is made of the PMS issue with women having proved equally successful in all areas of life. There are equally nasty men all over without the PMS.

In fact, the man suffers a more serious physical failing - the strong, almost uncontrollable, sexual urge and thus a strong weekness as compared to woman. (has any one heard a woman spy being seduced by man).

We all need a God to bring sanity in our lives and to turn to in difficult times - more than that the religion is a personal belief - to every one his own.

Giving meanings to these scriptures is an exercise that has already consumed thousands of years of the history of the mankind.

In my opinion, Muslim society in different countries seem to interpret, evaluate and then base their reality on an accept/except format towards the parts & paths that suit that particular time in history and place in geography. With predominant influence from existing inertia levels and pressure groups gaining from such interpretations.

Put it this way, Muslim society in, say, Saudi Arabia or Kuwait will have one set of rules for women within Saudia/Kuwait and another outside. Likewise, presumably Queen Latifa, Paula Abdul and Chaka Khan have different rules applied when they are performing live in the US compared to what they would follow if they went to, say, do the Haj.

So, in my opinion, this article is about Islamic law as applied currently in some parts of the world. And my further opinion here is that even this application is shrinking.

Since Chowk missed it:

DEDICATION

Dedicated to the greatest scholar, historian, jurist, and revivalist of our time, Dr. Muhammad Hamidullah r.a who was separated from us at age 94 on December 17, 2002, by the relentless touch of icy hands of death. Among his most notable works, Introduction to Islam,
The Muslim Conduct of State
, and Emergence of Islam
- translated in several languages- are taught as curriculum in several countries. Without him this article was not possible. May God bless his soul.

ACKNOWLEDGEMENT

I am deeply grateful to Chowk Staff for publishing this article. My special thanks to Asif Naqshbandi, who helped me get to some of the sources that were crucial to the body of argument in this article. I am also grateful to some others who do not want to be named here. And finally my special thanks to Him who lit the way.

HE #1

Thanks for your words of appreciation and encouragement. As for your question of ``reinterpretation`` is concerned, my answer is that until very recently I was also of the opinion that in Islam everything is in black and white and gray is a shade that is absolutely forbidden but then I came across the juristic arguments of the early jurors especially the four Imams (Bu Hanifa, Malik, Shafii, and Hanbali; and to some extent Jafar Sadiq (ra)) and I realized that man is a very creative entity. As long as we stick to the basic principles there is a wide playing field given to us.

That was a general and indirect answer but if stick to the concept of basic principles regarding financial matters and let debate and reason guide us we will always find new ways that will benefit us.

Inquirer # 2

When I submitted this article to Chowk the teaser sentence that goes under the article heading on the home page was ``Is woman a second class citizen in Islamic law and social structure?`` but then Chowk Staff changed it to a better one, which makes the topic even more specific ``Islamic law and jurisprudence have also come under international scrutiny since it presents a historically proven and viable alternative to the existing English Common Law and Napoleonic Code. One of the main issues that have come under the spotlight is the worth and position of women in Muslim society as defined by the Islamic Law. `` . So that is the topic under discussion.

This article is an attempt at facing and answering to that scrutiny. The position of women (or men) in a society is not a unidimensional issue; it is multidimensional. It has dimensions of sociology, biology, finance, economy, sex, human nature, and what not. The topics discussed in this article are not new (except the argument on biology; which now has achived a status of taboo in liberal school of thought that no one dares talk about it. ) but have been presented several times by many people. But when people who have written about it have discussed only one dimension at the time. I on the other hand have tried to write a comprehensive argument for my personal reasons. The reason is that if and when God will bless me with a daughter, it wont be long that she will start asking these questions (or will repeat the allegations as that of Lisa Beyer). I dont want to be caught off guard.

So the short answer to your reply is that we will discuss one dimension at a time. So ask me a question.

temporal # 3

Digressions. Very well. Let me answer to one digression of yours that is related to this article i.e. admissibilityof forensic evidence for the conviction for the crime of zina, fornication, or rape. The legal argument (Islamic) is that the forensic evidence cannot be used to establish Hadd punishments. The key word here is ``Hadd Punishments``. The minimum requirement to establish Hadd is the evidence of four adult males who must have seen the act of penetration with their eyes. Hadd cannot be established even if they had seen a man and women naked under covers. So Forensic evidence is admissible but that can only establish a Ta`azir crime. Plus; DNA evidence can easily be manipulated and compromised through a lab due to just one corrupt lab technician. This creates doubt as regards to the tenacity of the evidence and the benefit of doubt always goes to the accused.

Almost all scholars of almost all schools of thought have argued that such a stringent requirement for establishment of hadd is actually to prevent the public display of a lewd act. According to an Hadith a man came to Holy Pophet (pbuh) and confessed that he had committed fornication. The Holy prophet pretended that he had not listened to him as what he said; and he did it for three times. When that man confessed for the third time, the Prophet said that it was much better if he had kept quiet; what was done was done. So the idea that we get from this narration is that Islam is not out there to punish people for every little and big thing that they do as long as they consider what is wrong is wrong.

Ursturly:

...thhis is not a comment on this article (or treatise, Inquirer)…this is long, serious and cannot read it all on this small screen…so what else…some digressions generated by reading some parts of this…(that may ver well have been the intent of Chowk Editors)

...t

digressions:

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it is my belief that the Creator (Allah, Bhagwan, God, the Force) is the only one who is perfect…nobody or nothing else is

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all the rest of us could do is to strive for that perfection

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religions came or were invented to nudge the lesser animals or ashraf ul makhlooque) towards this perfection…

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which meant in case of (al islam: a religion that we claim is for all times) the existence of an inherent adjustment mechanism…which has long been suppressed, or usurped by you know who…my reasoning is simply this: a religion that is for all times cannot be rigid… it has to have inherent flexibility, otherwise the time and tides would leave it in the dust bin of history…

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only by this process of (periodic) fine tuning could man/woman strive for near god perfection…on quick example: urstruly writes: 1.2.4 Forensic Evidence: Forensic evidence is permissible but cannot be used to impose Hadd punishments there we go…DNA evidence for instance is thrown down the drain…why?…mainly i suspect because then the powers that be cannot say only evidence by 1 of this or 4 of that breed or gender are equal…

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more digression perhaps later if they do not stone me to…;)

urstruly:
You have written a treatise not provided a statement. The worth of the treatise can be determined not by the readers of the Chowk. The length and involved nature of the article require a treatise like response.

I guess this again brings into focus the impractical approach being promoted by Chowk. What, indeed is the purpose of these discussions? Obviously no legal conference can be conducted with computer responses. As far as I can see the aim of the Chowk is to promote a discussion among a diverse group so that various aspects of problem-solution can be elucidated.

I cite this article to the Chowk Policy makers to limit the length of an article to less than a thousand words. That would help in a concise formulation of a problem and a coherent discussion can follow. We need to learn about this from New York Times On-line forum Abuzz.

As an example of the manageable scope for discussion of issues highlighted by this treatise, I provide below the section which could be discussed by the interactors:

**********************************************************************
Unfortunately, when Hudud Laws were enacted in Pakistan, through the Hudud
Ordinance in 1979, these delicate points regarding rape and adultery were not
taken into account neither in Criminal Procedure Code (Cr.PC) of the courts nor
in the police investigation manuals. That unleashed an untold misery upon women
(and men), who were charged with fornication or adultery. Thousands of women
were incarcerated just because their husbands accused them of adultery and
courts and police did not have instructions on how to proceed with those cases.
Most cruel treatment was meted out to women who were victims of rape; as they
were asked by police and courts to produce four witnesses who must have seen the
rape. And as they failed to do so they in turn were charged with confessing of
having committed fornication. Such draconian laws raised national and
international outcry; but since for the past 20 years or so, legislation in the
country has been in limbo because of the political situation, this cruelty went
on. This is one of the darkest chapters in the history of jurisprudence and law
in Pakistan - a source of eternal shame for Muslims in this country.

**************************************************************************

Of course, above paragraph can be made self-standing by some supplementation and inclusion of a few definitions.

Focus needs to clarified. What do we want to discuss: definition of rape, fornication, Islamic view of women, PMS, menopausal conditions? Or do we want to discuss social conditions, laws or Quran and Hadith?? A clear statement of a problem is the very sine qua non for avoiding all the non sequiturs that are so common in Chowk discussions.

re: Urstruly

Thanks for an excellent article. You have indeed gone to great pains in researching this and providing all the references.

I only have one question: under Islamic law, is society allowed to reinterpret the financial responsibilities of men and women? Or are we expected to take the stipulated distribution of responsibilities as final