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GOING SWIMMING FULLY CLOTHED

A Brief Introduction to Islamic Law

A Work-in-progress

The title Going Swimming Fully Clothed was inspired by What To Wear At The Beach, one of our more popular postings on Islam.

Getting Our Feet Wet

It’s not easy swimming fully clothed, or so I have read. It is particularly difficult for Muslim women to swim in Prophet-mandated clothing according to Dalal Al-Bizri, Lebanese sociologist and columnist for the pan-Arab daily Al-Hayat.

It is not really swimming she writes, but “a struggle with the weight of waterlogged clothing. This, in addition, to the nasty skin abrasions caused by the corrosive combination of salt and sand that gets embedded in clothing that takes forever to dry.”

For a layman writing about Islamic jurisprudence it is not unlike going swimming fully clothed, metaphorically-speaking. You are constantly in danger of being dragged beneath the waves of your own logic as you struggle to explain things that on the surface (pun intended) seem to defy common sense, to be the product of an over-active imagination if not a deranged mind.

There is method however in the madness in the Law that would bring structure and logic to the lives of those who willingly submit to the will of Allah, the meaning of “Muslim.”

For the purpose of explaining Islamic jurisprudence (fiqh) in terms more familiar to non-Muslims, I divide the Sharia (Holy Law) i.e. Islamic Law into two broad categories: Criminal Law and Family Law.

This definition and division many of you may find completely spurious as you read this guide and come to terms with the reality of Islamic Law.

You may even come to the conclusion that to accommodate the Law of Allah and His Messenger, the Prophet Muhammad, within Western jurisprudence, as many Muslims are demanding, may mean denying much of what you believe in when it comes to the rule of law, crime and punishment and equality before the law.

Criminal Law

Sin in Islam, like in most religion, is a crime against God. Islamic Law is all about sins; mostly the Greater Sins of which there are more than forty, at this writing.

The Greater Sins are those where the Koran, or a saying of the Prophet explicitly state, or imply that those who commit these sins will go to Hell – or where there is a consensus among religious experts that the sinner is going to Hell.

The number of Greater Sins is always bound to grow, as it has in the past, as religious scholars discover new Greater Sins in the 6,346 verses of the Koran (this number includes the 112 unnumbered Basmalahs, the formula-invocation “in the name of Allah, the Compassionate, the Merciful” which appears at the beginning of every chapter of the Koran except the first and the ninth) and in the tens of thousands of sayings and examples of the Prophet Muhammad.

The Greater Sins all are punishable by death, mutilation, retaliation in kind, or blood-money. A system of justice where the punishment for most crimes is retribution, retaliation and mutilation meant that, in the Prophet’s time, there were no prisons as we know them.

Punishment was swift and certain, and except for wealthy men who could escape punishment by paying blood-money (the option of paying to escape mutilation or death is normally not available to women for reasons which will be explained under the Family Law banner) there was no risk of recidivism. This is one argument that is made for the cost-effectiveness and superiority of Islamic Law over the Western kind.

Following are the forty greater sins for which there is a verse in the Koran or saying of the Prophet about the sinner going to Hell:

1. Shirk (polytheism), associating other gods with Allah.

2. Yās (despair), to doubt Allah’s Mercy.

3. Qunut (despondence), losing hope in Allah.

4. Not fearing Allah’s punishment.

5. Murder.

6. Parental disobedience.

7. Breaking up with relatives.

8. Usurping the property of orphans.

9. The charging of interest on borrowed money.

10. Fornication (adultery).

11. Sodomy.

12. Wrongfully accusing a chaste believer of adultery or homosexuality.

13. Drinking alcoholic beverages

14. Gambling,

15. To neglect an obligatory religious duty.

16. Playing musical instruments or listening to music.

17. Singing.

18. Lying.

19. False oats.

20. False testimony.

21. Concealing evidence.

22. Breaking a promise.

23. Misappropriation of property.

24. Stealing.

25. Short weighing or cheating in business.

26. Eating of what is unlawful.

27. Usurping the rights of others.

28. Avoiding Jihad.

29. Becoming A’Arāb after Hijrat, “the condition when a desert Bedouin before acquiring the necessary knowledge of religion turns back to his ignorant ways.”

30. Helping the oppressors.

31. Not helping the oppressed.

32. Sorcery.

33. Extravagance e.g. wasteful expenditures.

34. Arrogance.

35. To war against Muslims.

36. Eating of carrion, pork and blood.

37. Omitting prayer intentionally.

38. Non–payment of Zakat (obligatory charity).

39. To consider the Hajj (mandatory pilgrimage) insignificant.

40. Persistence in minor sins (committing a lesser sin repeatedly).

The Greater Sins for which there is no explicit verse or saying of the Prophet damning the sinner to an eternity roasting in Hell:

41. Backbiting.

42. Telling tales.

43. Insulting a believer.

44. Intrigue, deception and breaking covenants.

45. Hoarding and selling on the black-market.

46. Disrespect of the Qur’an.

47. Disrespect of Ka’ba. 48. Disrespect to Masajid (mosque).

49. Disrespect of the Tomb of the Prophet.

50. Disrespect to the soil of Imam Husain’s Grave (Shia Islam).

The two most serious criminal offenses in Islam, based on the punishment reserved for the transgressors i.e. death, are 1) expressing disbelief in anything Allah or His Messenger said or did – basically any of the first four Greater Sins 2) females having sex with someone other than their husband.

For adulterous females, or the adventurous teenaged girl who discovers the joys of sex before marriage, it is death by stoning. That is indeed a cruel death, but still not as harsh as the death Allah demands for those who would oppose Him and His Messenger through violent or peaceful means, with the non-violent antagonist more likely to be banished except where His Messenger was concerned.

5:33 Indeed, the punishment of those who fight Allah and His Messenger and go around corrupting the land is to be killed, crucified, have their hands and feet cut off on opposite sides, or to be banished from the land. That is a disgrace for them in this life, and in the life to come theirs will be a terrible punishment.

Considering that the punishment for heterodoxy i.e. fighting Allah and His Messenger is not always death, I consider a woman indulging in inappropriate sexual behavior as the greater sin – the unholiest of the two Great Unholies.

The next two most serious crimes, based on the severity of the punishment are theft and murder. Allah's decreed punishment for stealing someone else's property is mutilation.

5:38 As for the thieves, whether male or female, cut off their hands in punishment for what they did, as an exemplary punishment from Allah. Allah is Mighty and Wise.

The punishment for what Western jurisprudence considers the lesser crime, and by a wide margin, can exceed that of murder. Murderers under the Sharia can escape any form of punishment by simply paying blood money to the victim's relatives or having someone else die for their crime.

For example, a slave owner who kills another slave owner's slave can make amends by killing one of his own. Then there is the issue of killing another man's wife.

2:178 O believers, retaliation for the slain is prescribed for you; a free [man] for a free [man], a slave for a slave and a female for a female. But if he is pardoned by his brother (the aggrieved), usage should be followed (capital punishment would be replaced by blood-money) and he should pay him (the aggrieved) liberally and kindly. This is remission and mercy from your Lord. He who transgresses after that will have a painful punishment.

Allah made blood money a fit punishment for murder, it was up to His Messenger to establish what is the cost of a human life.

And intentional murder shall be punished according to talion law; where the murderess intention is not clear and the victim is killed using a club or a stone it will cost the perpetrator one hundred camels as blood money. Whoever demands more is a man from the time of ignorance.

From a translation of the Prophet’s last sermon by Islamic scholar and author Dr. Muhammad Hamidullah [1908-2002]

As can be expected in a religion founded by a merchant, except where females and sex are concerned almost everything has its price. No amount of money can atone for the crime of a female having illicit sex and in most cases for committing murder, even the involuntary type, the Western crime of manslaughter or in self-defence.

A female cannot pay to save her life, for, unlike a man, in Islam a female is first the property of her father – if born an orphan she becomes, for all intents and purposes, the property of her oldest brother; if she has no brothers than the next closest male relative – than that of the husband he has chosen for her.

Except for her dowry as a married woman, her fail-safe which she can use under Islamic Law to ransom herself, she has nothing.

2:229 Divorce may be pronounced twice. Then they (women) are to be retained in a rightful manner or released with kindness. And it is unlawful for you [men] to take back anything of what you have given them, unless both parties fear that they cannot comply with Allah’s Bounds (by obeying His commands). If you fear that they cannot do that, then it is no offence if the woman ransoms herself (pays money to be set free). Those are the bounds set by Allah. Do not transgress them. Those who transgress the bounds set by Allah are the wrongdoers.

As property, she cannot have the same right as the property owner except under rare circumstances, as in the case of Nazanin Fatehi where international pressure forced an Iranian court to allow blood money to save her from the noose.

Islamic Law is logical to the extreme, to an unconscionable brutal extreme where women are concerned, but logical nonetheless.

To specify a payment in dollars and cents or property for a crime committed by property against a property owner, whether it be for unlawful sex or some other equally serious crime, would be illogical.

Misdemeanors

A misdemeanour, (or misdemeanor) in most common law legal systems, is a lesser criminal act. Misdemeanours are generally punished much less severely than felonies (usually a crime involving violence).

Minor sins under Islamic Law could be considered misdemeanors. The list of minors sins is open-ended (see section An Ever Expanding Law). The offenses on this long list of offences might seem trivial, even laughable by Western standards of what constitutes a crime, but the punishment usually is not.

Minor sins range from being too close to a member of the opposite sex to whom you are not related, cursing, imitating the dress, behaviour or lifestyle of the kuffar (also Kafir, and Kufr, “concealer of the truth”, pejorative term for non-Muslims) to forgetting to lower your gaze when encountering a member of the opposite sex ... to entering a house by the backdoor.

24:30 Tell the believers to cast down their eyes and guard their private parts. This is purer for them. Allah is conversant with what they do.

2:189 They ask you about the crescents (the new moons) say: “They are times fixed for mankind and for the pilgrimage.” It is not righteousness to enter houses from the back; but the righteous is he who fears Allah. Enter then the houses by their front doors; and fear Allah that you may prosper.

Islam’s preoccupation with minor sins can be traced, in part, to Aisha, the Prophet's child-bride. She is also largely responsible for the severe constraints Allah has placed on female believers, which are enforced to this day.

It seems the lovely Aisha wandered off into the desert and got lost, only to be rescued by a young man who brought her back to Medina… the next day. Needless to say, this started people talking. Talk, if verses pertaining to this incident are to be believed, that really distressed the Messenger.

The Prophet returned her to her father while he contemplated what to do next, including having her stoned for adultery.

To comfort the distraught Messenger some said that it was no big deal and that he should simply have her stoned to death and find himself another wife. The general sentiment, according to Georgiou, was summed up by the Prophet’s adopted son Ali who told God’s Messenger (my translation): “Allah has not limited our choice in women and there are many” (La Vie de Mahomet, p 259).

This remark by Ali is alleged to be the cause of the animosity that Aisha would bear him for the rest of her life.

It may not have been a big deal for the Prophet's tribesmen, but it was a big deal for Allah that anyone would accuse any of His Messenger’s wives, slave-girls and concubines of being unfaithful and that is when He sent down the revelation which is often quoted a proof that Allah is concerned about all sins, both big and small.

24:15 Since you received it on your tongues and you uttered with your mouths what you had no knowledge of, deeming it a simple matter; whereas in Allah’s Sight it was very grave.

The punishment for minor sins under Islamic Law can be quite severe and varies depending on which religious scholar or imam holds sway over a town or region, or most often the school of Islamic Law that is predominant in a country rule by the Sharia (more on Islamic schools of law in a later chapter). Take the punishment for the minor sin of Khalwat for example, the sin of close proximity.

Under the Sharia you are guilty of Khalwat not only if you are too close to a person of the opposite sex, but also if you are discovered to be naked or near-naked with a member of the same sex for “no good reason” e.g. sleeping naked in the same bed.

In Iran the punishment for committing Khalwat is up to 99 lashes, in Malaysia it is a fine or up to two years in jail, or both.

Family Law

Islamic Family Law is mainly about women, what women can and cannot do, whom they can be wedded to, what they can expect, if anything, from a divorce settlement or a bequest i.e. will.

The Koran and the Prophet, in verses and sayings respectively, remind the believers that males are superior to females; that women are weak- minded and lust after the male body, and left to their own devices would destroy the family and bring chaos to the orderly world of the Koran.

These concerns of Allah and His Messenger about the failings of females are at the heart of what I refer to as Islamic Family Law. Allah’s revelations and His Messenger’s sayings which have the force of law is simply their way of protecting females from themselves and from corrupting those they might come into contact with because of their physical attributes and guile.

It is for their own good, and the salvation of the men they would inevitably seduce if not kept out of sight and out of reach, that they grant their father (a brother or an uncle, if he is not around) and later their husband absolute control over them.

Western Family Law explicitly recognizes that men and women are equal, as human beings, and before the Law.

Islamic Family Law emphatically denies that this is so. In revealed truth 2:228 Allah, and He should know He created them both, the female is inferior to his male creation by at least "one degree" and is not as good at remembering things, revealed truth 2:282, and Allah and His Messenger's sayings and example are the law.

2:228 Divorced women should keep away from men for three menstrual periods. And it is not lawful for them to conceal that which Allah has created in their wombs, if they truly believe in Allah and the Last Day. Their husbands have the right in the meantime to take them back, should they seek reconciliation; and women have rights equal to what is incumbent upon them according to what is just, although men are one degree above them (what is meant here is that the men have a superior authority). Allah is Mighty, Wise.

2:282 O believers, when you contract a debt for a fixed period, write it down. Let a scribe write it for you with fairness. No scribe should decline to write as Allah has taught him. So let him then write and let the debtor dictate. He should fear his Lord and not diminish the debt in the least. If the debtor is feeble-minded or week or ignorant, then let his guardian dictate with fairness. And call to witness two witnesses of your men; if not two men, then one man and two women from such witnesses you approve of, so that if one of them (the two women) fails to remember, the other will remind her. The witnesses should not decline [to testify] when they are called upon [to do so]. So do not be averse to writing down the debt, be it small or large, as well as when it is due. This is more equitable in Allah’s sight, more suitable for testimony and less likely to rouse your doubts. If it is an instant transaction among yourselves (involving no debt); then it is no offence if you do not write it down. And let there be witnesses when you sell one to another; but neither the scribe nor the witness should be harmed, because if you do that, it is an act of transgression. Fear Allah; Allah teaches you. He has knowledge of everything.

The Prophet, in many of his sayings confirmed Allah's post-creation assessment of females as having a diminished mental capacity. Example:

Narrated abu Said al-Khudri:

The Prophet said, "Isn’t the witness of a woman equal half that of a man?"

The women said, "Yes."

He said: "This is because of the deficiency of the woman’s mind."

Bukhari 48.286

Western Family Law tries to strike a balance between the rights and obligations of the marital partners with laws that seek to militate against either harming the other financially or physically; unlike Islamic Family Law which gives the husband complete control of his wives’ wealth and encourages him to beat his wives if he fears they will sin, or have sinned, as he sees it.

4:34 Men are in charge of women, because Allah has made some of them excel the others, and because they spend some of their wealth. Hence righteous women are obedient, guarding the unseen (their sex) which Allah has guarded. And those of them that you fear might rebel, admonish them and abandon them in their beds and beat them. Should they obey you, do not seek ways of harming them; for Allah is Sublime and Great.

In Western Family Law, divorce proceeding are meant to ensure an equitable distribution of family and jointly owned property, and that neither partner is left destitute after the separation.

Islamic Family Law allows a husband to divorce his wife on a whim if he is unhappy with his or his parents purchase[1] and she has no recourse, and has no recognized right in the Koran to any property or wealth acquired during the marriage, and that includes the family home.

In Islamic Family Law the husband has rights, the wife obligations, obligations which include having sex on demand, what in Western Law might be considered rape in some cases.

In Western Family Law a father can bequeath whatever he wishes to his offsprings. Under Islamic Family Law his bequest must be in accordance with the Koran which demands that a son gets twice the share of the daughter, and if he has no sons, his male relatives.

4:11 Allah commands you, with respect to your children, that the male shall inherit the equivalent of the share of two females. If there be more than two females, then they should receive two-thirds of what he (the deceased father) leaves; but if there is only one female, she is entitled to one-half. To each of his parents, one-sixth of what he leaves, if he has any children; but if he has no children, then his parents will inherit him, the mother receiving one third. But if he has any brothers, then his mother receives one-sixth, after any will he had made or any debt he had incurred [is taken care of] Your fathers and sons – you know not who of them is of greater advantage to you. This is a law from Allah; Allah surely is All-Knowing, Forbearing.

In Western Family Law a wife is entitled to her fair share of a deceased husband’s estate, usually half. Under Islamic family law the same two-for-one in favour of male offsprings applies. If she dies her husband is entitled to half of what she leaves behind; if he dies, she only entitled to a quarter of what he leaves behind.

4:12 You are entitled to half of what your wives leave, if they have no children; but if they have any children, then you are entitled to one-quarter of what they leave, after any will they had made or any loan they had incurred [is taken care of]. And they are entitled to one-quarter of what you leave, if you have no children; but if you have any children, then they are entitled to one-eight of what you leave, after any will you had made or loan you had incurred [is taken care of]. And if a man or a woman dies having no children or parents, but has a brother or sister, then each shall have one-sixth; if they are more than that, then they shall share one-third, after any will made or debt incurred [is taken care of] without prejudice. This is a Commandment from Allah, and Allah is All-Knowing, Forbearing.

 Allah’s revelations as to the disposition of an inheritance means that Muslim women will always have difficulty accumulating the resources needed to look after themselves.

Should they succeed in accumulating any wealth, on their death, the lion’s share of any wealth they might have inadvertently accumulated must go, by Allah’s decree, to the male members of her husband’s family and their male offsprings – their daughters, and their daughter’s daughters… doomed in perpetuity to start their adult life at a disadvantage.

This is the Family Law that many Western governments implicitly recognize by turning a blind eye to makeshift Islamic Tribunals e.g. Great Britain and some, like the government Ontario which tried to make Islamic Family Law part of its legal framework in 2005.

Sources of Islamic Law

There are four sources of Islamic law. In order of importance:

1) the Koran;

2) the Prophet Muhammad's Sunnah, his example and sayings including his silent approval of actions performed in his presence narrated in the books of hadiths;

3) Consensus among Islamic scholars i.e. Ijmā'.

4) Reasoning within the boundaries of the Koran and the Prophet's Sunnah.

Sunni scholars use what they call "analogical reasoning “or qiyās to come up with a new law to fit a new or changed circumstance. It is a process whereby one or more hadiths are compared and contrasted with revelations in the Koran in an attempt to come with a crime and a punishment of which Allah and His Messenger would approve.

Shia’s reject Sunni "analogical reasoning “or qiyās because it might lead to a multitude of contrary opinions, or divergence of beliefs.

It’s not that Shia’s don’t do their own narrowly focused reasoning to come up with new laws. Shia’s call their process ‘Aql. To avoid divergence of beliefs cause by discordant reasoning, the most revered and learned Islamic scholars among them e.g. the Ayatollah Khomeini when he was alive, is accepted as the final authority as to who’s reasoning will take precedence.

>Islamic Law is Forever Expanding

New sins, mostly of the minor variety, and new rules to govern every waking moment of a believer’s existence are constantly being created.

The most respected Islamic scholars are those who have discovered a new sin in the Koran; but most often it is from the Prophet’s much more plentiful pronouncements and opinions that new jurisprudence is created.

The competition among scholars to create new laws or new interpretation of existing laws and regulations has been more or less formalized and recognized in what Islam often refers to as the “science of fiqh”. It is considered science, as opposed to pseudo-science, because Islamic laws are objectively formulated  based on solid immutable revealed truths, not on subjective changing conclusions as to what is fair, just and reasonable as is normally the case in arriving at Western jurisprudence.

New laws in Islam are created via what Islamic scholars consider the scientific method of forming hypothesis than gathering the evidence via the scriptures to prove what you advance.

This is one more argument why many such scholars consider Islamic Law superior to Western for it is arrived at by looking at what the best two legal minds in the universe i.e. Allah and His Messenger had to say on the matter, or speculating on what they would decree if their opinion on this or that is not clear or can’t be found.

Shia Islam has probably gone the furthest in recognizing the contribution of scholars in the creation of new laws by bestowing the equivalent of a doctorate on those who are successful in convincing their peers that a sin has been overlooked, or that what until then had been considered acceptable behaviour was not the case at all. Iran’s ayatollahs all have the equivalent of this doctorate.

Needless to say, with more than 900 years of scholars mining the Koran and the sayings and actions of the Prophet for new sins, or new insight into how believers should behave if they wish to attain Paradise means that a specialist in Islamic scriptures who wishes to distinguish himself must dig deeper into the material, and be extremely diligent if he hopes to find that overlooked nugget of wisdom left behind by Allah and His Messenger.

For example, the Ayatollah Khomeini in his “doctoral thesis” could be said to have found such a nugget. In his Tahrirolvasyleh, better known as The Political, Philosophical, Social and Religious Principles of Ayatollah Khomeini he postulated that it would be a sin for someone who had had sex with a chicken to eat it, but it was permissible for a neighbour three doors down to have it for supper, so to speak, and not risk going to Hell.

With the Introduction to Going Swimming Fully Clothed we have only gotten our feet wet. Time to plunge in fully clothed and see how long we can thread water.

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[1] A marriage in Islam is not a sacrament but a contract, most often a contract between members of the same clan, meaning you are all relatives, all offsprings of the same father a few generations removed. 

The marriage is usually an arranged affair and, not unlike arranged marriages of the Middle Ages, the primary consideration is what benefits in wealth and influence will accrue to the contracting parties i.e. the families of the bride and groom.

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