GOING SWIMMING FULLY CLOTHED
A Brief Introduction to Islamic Law
Getting Our Feet Wet
It’s not easy swimming fully clothed, or so I have read.
Any woman who has ever tried to swim fully clothed is aware that she is not swimming; she can only, at best, struggle with the weight of her 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.
From A Defeat for Women by Dalal Al-Bizri, Lebanese sociologist and columnist for the pan-Arab daily Al-Hayat
A layman writing about Islamic jurisprudence 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. There is method, however, to the madness in the law that would bring structure to the lives of those who willingly submit to the Will of Allah, the meaning of “Muslim.”
In order of importance, the four main sources of Islamic jurisprudence:
1) the Koran;
2) the Prophet Muhammad's Sunnah, his example and sayings including his silent approval of actions performed in his presence as 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.
For the purpose of explaining Islamic jurisprudence (fiqh) in terms more familiar to non-Muslims, I divide the Sharia (God’s Law or Islamic law) into two broad categories: Criminal Law and Family Law. This definition and division you may find completely spurious as you come to terms with the reality of the Sharia.
As Al-Qaeda and its imitators remind us, the Sharia and Western Jurisprudence cannot coexist.
Any study beside that of the Quran is a distraction, except the Hadiths and jurisprudence in the religion. Knowledge is what He [Muhammad] narrated to us, and anything other than that is the whispering of the Satan.
You cannot live your life by man-made laws that are constantly evolving in the pursuit of equity for all (i.e., women, children and gay rights) and a misogynous legal tradition rooted in revealed truths: immutable facts revealed to a mortal by a god in which you must believe with certainty.
45:20 This (Qur’an) is an illumination for mankind, a guidance and mercy unto a people who believe with certainty.
The Sharia 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 Muhammad explicitly state or imply, or where there is a consensus among religious experts that those who commit these sins will go to Hell. All of the Greater Sins are punishable by death, mutilation, retaliation in kind or blood money.
Following are the forty Greater Sins for which there exists a verse in the Koran or a saying of Muhammad 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.
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).
12. Wrongfully accusing a chaste believer of adultery or homosexuality.
13. Drinking alcoholic beverages.
15. To neglect an obligatory religious duty.
16. Playing musical instruments or listening to music.
19. False oats.
20. False testimony.
21. Concealing evidence.
22. Breaking a promise.
23. Misappropriation of property.
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.
33. Extravagance e.g. wasteful expenditures.
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 Muhammad damning the sinner to an eternity in Hell, but where there is a consensus that it is the ultimate destination of those who commit the transgression:
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 offenses for which capital punishment is demanded are associating other gods with Allah and fornication with other than your spouse. The next two most serious crimes, based on the severity of the punishment, are theft and murder. Mutilation is Allah's decreed punishment for stealing someone else's property:
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, such as a slave or a 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 spokesperson to establish the cost of a human life. From a translation of Muhammad’s last sermon by Dr. Muhammad Hamidullah [1908-2002:
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]
A misdemeanor, in most common law legal systems, is a lesser criminal act. Misdemeanors are generally punished much less severely than felonies (usually crimes involving violence). Minor sins under the Sharia could be considered misdemeanors. The list of minor sins,and even that of Greater Sins is open-ended (see section Islamic Law is Forever Expanding). 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,” a 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 back door.
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.
The punishment for minor sins under the Sharia can be quite severe and varies depending on which religious scholar or imam holds sway over a town or region and the school of Islamic jurisprudence to which he subscribes. Take the punishment for the minor sin of Khalwat, the sin of close proximity. You are guilty of Khalwat if you are too close to a non-relative of the opposite sex, or in the company of a member of the opposite sex for no legitimate reason under the law. 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.
Islamic Family Law is mainly about women: what they can and cannot do, how they must dress, whom they can be wedded to, and what they can expect, if anything, from a divorce settlement or a bequest. Western Family Law explicitly recognizes that men and women are equal as human beings and before the Law. Allah and His spokesperson emphatically deny that this is so giving rise to the accusation that the Sharia is a misogynous legal tradition.
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.
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."
Western Family Law tries to strike a balance between the rights and obligations of the marital partners with laws that seek to militate against harming the other either financially or physically. This is unlike the Sharia which gives the husband complete control of his wives’ wealth and encourages him to beat a spouse he fears will sin, or has sinned.
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.
Under the Sharia, a wife who complains to the authorities about a beating anywhere but about the face will not be listened to.
Narrated Abu Huraira:
The Prophet said, "If somebody fights (or beats somebody) then he should avoid the face."
Narrated Umar ibn al-Khattab:
The Prophet (peace be upon him) said: A man will not be asked as to why he beat his wife.
Abu Dawud 11.2142
In Western Family Law, divorce proceedings are meant to ensure an equitable distribution of jointly owned property so that neither partner is left destitute after the separation. The Sharia allows a husband to divorce his wife on a whim and leaving her with next to nothing. Under God's law a wife has no recognized right to any property or wealth acquired during the marriage—including the family home—except her dowry; and she may lose even that if it is the ransom demanded by her husband to get out of an abusive relationship for instance.
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.
Under the Sharia the husband has rights and the wife obligations; obligations that include having sex on demand—what in Western Law might be considered rape, in some cases.
2:223 Your women are a tillage for you. So get to your tillage whenever you like. Do good for yourselves, fear Allah and know that you shall meet Him. And give good news to the believers.
In Western Family Law, a father can bequeath whatever he wishes to his offspring. Under the Sharia his bequest must be in accordance with the Koran, which decrees that a son gets twice the share of a daughter.
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 the Sharia the same two-for-one in favour of male offspring applies. If she dies her husband is entitled to half of what she leaves behind; if he dies, she is 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.
There is more, but you get the idea (recommended Women and the Koran, Boreal Books).
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. Sunni scholars use what they call "analogical reasoning “or qiyās to come up with a new law to fit a novel 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 identify a crime and suitable punishment of which God would approve.
Shias reject Sunni analogical reasoning because it might lead to contrary opinions or divergence of beliefs. It’s not that Shias don’t do their own narrowly focused reasoning to come up with new laws. Shias call their process ‘Aql. To avoid divergence of beliefs caused by discordant reasoning, the most revered and learned Islamic scholars among them, e.g., the Ayatollah Khomeini when he was alive, are accepted as the final authority as to whose reasoning will take precedence.
The competition among scholars to create new laws or interpretations of existing regulations has been more or less formalized and recognized in what is referred to as the “science of fiqh” as opposed to pseudo-science.
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. Iran’s ayatollahs all have this form of doctorate.
Needless to say, with more than 900 years of scholars mining the Koran and the sayings and actions of Muhammad 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 spokesman.
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.
I abandoned what I hoped would be a comprehensive introduction to Islamic law to concentrate on a less ambitious manuscript, 1,001 Sayings and Deed of the Prophet Muhammad.