Wednesday, March 26, 2008

Women- Inheritance vs Explicit Command

HASAN MAHMUD

HELL BROKE loose when on 08 March 2008 Bangladesh government accepted the National Women Development Policy 2008 that includes gender-equality. The number of roaring Muslim organizations and their followers threatening of civil war is simply too numerous to count. The government is declared “Out of Islam” and “dissolved”. Mosques and Friday prayers proved effective tools to engage praying Muslims in Holy Resistance to gender-equality that may result into equal inheritance. They have a point. Chapter 4:11,176 “Explicitly Command” women’s half inheritance. Government was quick to submit to the threat and declare no law would be passed against Quran-Sunnah. Nobody asked if the Quran locked world-Muslims in unequal inheritance forever. Or, if there was a mechanism given by the Quran, Prophet and his companion to upgrade inheritance according to social evolution.

We know that interpretations of Quran/Sunnah are often poles apart and conflicting. But let us accept the argument of “Explicit Command” and look at few of hundreds of “explicit commands” of the Quran and Prophet. The references bellow the list are mainly from “Principles of Islamic Jurisprudence” by Dr. Hashim Kamali, one of world’s most famous Islamic Jurists, if The most famous.

1. Don’t speak loud in front of the Prophet – Hujrat 2
2. Don’t fight in Honoured months – Bakara 217
3. Don’t transgress the limit of Saturday – Bakara 65, Nahl 124, Nisa 154
4. It is permissible to sleep with slave-girls – Ahzab 50, Muminun 5, 6
5. War booty belongs to God, Prophet, poor, winning soldiers etc - Anfal 1,41, 69
6. Kill infidels– Tawba 5, 29, Anfal 12 etc
7. Take Jijiya tax from non-Muslims – Tawba 29
8. Drink camel’s urine – Bukhari Vol 8 Hadis 797
9. Free slaves – Nisa 92, Bukhari Vol 3 Hadis 695, 696, 720, Vol 4 Hadis 255.
10. Women’s leadership is unacceptable – Bukhari Vol 5 Hadis 709
11. Child marriage is allowed – Twalak 4

Today even the proponents of women’s half inheritance cannot observe many of these commands even if they want to. It is possible to observe many others but they won’t. But that doesn’t make them apostates because those commands have particular contexts. Imam Shafi tells us all explicit commands are not for everybody (his famous book Risala) and so not for ever.

The Quran explicitly commands to severe limbs of thieves, take Jijiya tax from non-Muslims and permits marriage with Jews/Christian women. Prophet said Omar would be the one could there be a next Prophet. But Omar (A) did not take Jijiya from some particular parsons and two non-Muslim tribes including Muallafa, (B) did not severe limbs of thieves during famine, and (C) barred marriage with Jews/Christian women for sometime. Based on Chapter Tawba 60 the non-Muslim tribe Muallafa used to get Islamic charity since the time of Prophet. Omar banned it too. Not only Quranic “explicit commands”, Omar stopped observing Prophet’s examples no. 203, 204, 205 and enacted 206 (Bukhari by Azizul Haque Vol1 page 197). He also changed the decade’s old way of observing Tamattu Hajj. Indeed he did not violate the Quran/Prophet but obeyed with their explicit teaching.

What is that teaching?
Prophet changed many of his explicit instructions with changing social circumstances. He approved Mutah (temporary) marriage for long and stopped it after Khyber battle. Previously approved prayers twice daily was changed to five times after his Meraj. He also changed his instructions about visiting graves and preserving meat. Quote: - “During Prophet’s time some changes in the Quran and his examples took place. The main reason was changed social conditions”. He left this eternal example for our Islamic leaders because people’s welfare is in it.

God says: - “None of Our revelations do We abrogate or cause to be forgotten, but We substitute something better or similar” (Bakara 106) and “When We substitute one revelation for another - and Allah knows best what He reveals” (Nahl 101). There are some Quranic updates about intercession hereafter (An Naba 38, Bakara 48, 123, 254, Nisa 123, Anam 51, 70, Al Zumar 19 etc). God knows best about it. About worldly affairs, as Bukhari reports: - “There was revealed about those who were killed at Bir-Mauna a Quranic Verse we used to recite, but it was cancelled later on. The Verse was: "Inform our people that we have met our Lord. He is pleased with us and He has made us pleased" –Vol 4 Hadis 69. Another example: - “Ibn 'Umar recited the verse: "They had a choice either to fast or to feed a poor person for every day, and said that the order of this Verse was cancelled” (Vol 3 Hadis 170). Facing Kaba during prayer was instructed after many years of facing Baitul Muqaddas in Jerusalem (Bakara 142, 144). Waiting period of widows was changed from one year to four months ten days (Bakara 240, 234). Replacement of verses on war-captives in chapters Anfal and Tawba is well known.

Dr. Kamali says:-“The basic philosophy of Naskh (replacement of one explicit instruction by another) is thus generally acknowledged to be a realization of benefit for the people….This was due mainly to the change of circumstances in the life of the community”. All scholars agree that it is erroneous to apply the past in present “Without reference to the then prevailing conditions” – Mawdudi, “Islamic Law and Constitution” –page 236.

Adjusting not Quranic values but social systems according to current conditions is one of the, if not the most important instructions given by the Quran, Prophet and his companion to Islamic leaders to follow eternally. It is included in God’s last revelation “This day have I perfected your religion for you,” (Chapter 5:3). Otherwise world-Muslims will be fossilized in the past. Islam wants a flow of values within the frame of present. Muslims benefited by updating many instructions in distant and recent past, including stoning during Hajj and time of prayer in northern hemisphere. Islamic leaders islamically supported law of equal inheritance in countries such as Senegal, Morocco and Tunisia. None called them apostates.

Opponents of equal inheritance argue that women must inherit half of men because they inherit from other sources that men don’t. The math works well but works only in that tribal society 1400 years ago. Reality changed from “Men are the protectors and maintainers of women…..they support them from their means” (Chapter 4:34) to men and women are protectors and supporters of each other in all respects including financial strength. So either the law has to be updated or the society has to go back 1400 years that clearly is not possible. So the conclusion that - “To propound a permanent constitutional theory for the Muslim world can neither be realistic nor practicable” came not from Islam-bashers but one of Islam’s stalwarts, the “realist” Imam (Political thought of Ibn Taymiyah- page 107).

In present unitary family none of parents, brothers, sisters or relatives can protect women like in the tribal society. No government can feed or shelter all its destitute women. The bride-money is negligible to sustain women lifelong; it can also be a pair of shoe (Sharia the Islamic Law - Dr. Abdur Rahman Doi - page 163, 164) or some memorized Quranic verses as per a Sunnah (Codified Islamic Law Vol 3 page 976). The argument of husbands’ responsibility to maintain wives does not work either. The responsibility is defined by Sharia law of past and present as: - “The husband is not obliged to pay for his wife’s cosmetics, doctor’s fees, the purchase of medicine for her, and similar expenses (though he must pay for expenditures connected with childbirth)(Shafi' Law m.11.4 and Hanafi Law Hedaya page 140), and – “Obligation of a husband to spend on his wife is limited to food, water, cloth and house. Anything else will be charity” – (Page 867, Quran’s translation by Muhiuddin Khan, printed in Saudi Arab by the assistance of the King).

We must realize why Quran took three steps to stop drinking when it could have stopped it in a moment. We must realize why Quran took so long to uproot slavery (Chapter 47:4) when it could have stopped it in a moment. Unlimited wife-beating, unrestricted polygamy, divorce wives on whims, no inheritance and witness for women etc are legacy of not only past Arabs but human societies. All those evils could have been ordered uprooted any morning. But a deep study of Quran shows it preferred social evolution over revolution. Because social-disaster is certain to follow even if a good system is thrown on people before they realize it. So we see Quran established little by little whatever people and the society could consume. First it put blockades on every women-oppression and then defined the goal of gender equity and equality as – “They are your garments and ye are their garments” (Bakara 187). Our leaders must lead us in that path; equal inheritance is only one of the steps.

Indeed there are violations of “explicit command” to oppress women. For divorce Chapter 65:2 justifiably instructs husbands – “take for witness two persons from among you”. But Codified Islamic Law Vol 1 Law# 344 decrees: - “Witness is not a condition for husbands to divorce”.

There are punishments in Sharia Law for Hudood crimes such as murder, theft, robbery, drinking, State-rebellion, apostasy etc. But look at the Sharia law no. 914 C of Codified Islamic Law Vol 3 – “Head of Islamic State cannot be charged for Hudood crimes”. A similar law is there in Hanafi law page 188.

If one talks about violation of Quranic explicit commands, this is it. Equal inheritance of men and women is not violation of the Quran. #

First published in News From Bangladesh, March 25, 2008

Hasan Mahmud, a practising Islamic scholar who has credit of dozens of articles, books and video documentaries on Sharia and Jihad. He could be reached in Toronto, Canada fatemolla@hotmail.com