In the Name of God, the
Compassionate, the Merciful,
Amongst common discourse are voices of those that count everyone outside of
their little clique as damned and those that think all religions are valid
(perennialist) and all are saved. Muslims pride themselves that Islam is
the middle way (deen al wasata) between two extremes. Therefore
into this discourse I thought I might describe the mainstream Islamic view.
The Universal and Exclusivist
religion
Islam is a universal
religion:
{Say
[Muhammad], ‘People, I am the Messenger of God to you all} [7:158]
In the eyes of Islamic Law
the fundamental principle is social equality due to a shared humanity between
all people: "All of you are the children of Adam" [Abu Dawud]. The rights for
all people are considered equal and upheld except in matters relating
specifically to religion for which the distinction between Muslim (muslim)
and non Muslim (kafir) is made. In other words people live, work
and transact together in society on an equal footing, but when it comes to
personal affairs such as prayer Muslims go to the Mosque and non Muslims go to
their respective Synagogue, Church or Temple. These are outward legal
distinctions based on which community a person belongs to.
Islam is also exclusivist
since the believer (mu'min) is destined for paradise (jannah) and
the disbeliever (kafir) is destined for hell (jahannum).
God wants us to love Him, but
He is not a tyrant and will not force us, so if someone desires nearness to Him
then that is what they shall have and if someone desires distance from Him then
that is what they shall have.
Belief is an inward state
that only God knows. Whilst there are indications based on outward information,
such as how someone identifies themselves, we can never truly know someone's
state and eternal abode. As such the word kafir to describe
non-Muslims has two meanings; one is a member of a community that has a belief
system contradictory to Islam and one is an internal state of disbelief.
Therefore not every non Muslim is an actual disbeliever (kafir) just as
not every Muslim is an actual believer (mu'min) although only God knows.
Kafir
Kafir comes from the Arabic root KA FA
RA and means to cover over. So the farmer can be known as a kafir as
he covers a seed with soil, and the night can be known as kafir because
it covers the day with darkness. In reference to disbelief it means covering
truth with falsehood and wilfully rejecting either in totality or in part: God,
His Messengers and His Revelations. It therefore requires a conscience
rejection of the truth, not a mere unawareness of it, as the following verse
suggests:
{We do
not punish a people until a messenger comes to them} [17:15]
Accountability and
punishment are only applicable once someone is aware.
Classic Works
Abu Hamid Al Ghazali (d.
1111 CE), know by the title hujjat al islam (proof of Islam) - who is
regarded as the most influential scholar of his century by consensus and often
in all Islamic history - said:
"The divine mercy,
however, will also embrace many of the bygone nations, even though most of them
will be exposed to the Fire, either slightly—for a moment or for an hour—or a
greater period of time, so that one may apply to them the expression “the
denizens of the Fire.” I would even go as far as to say that most of the
Christians among the Europeans and Turks in this time of ours will be embraced
by the same mercy, if God most high wills. I mean specifically those who are
among the remote inhabitants of Europe and Central Asia whom the call of Islam
has not reached [will be embraced by this divine mercy]. Christians can be
divided into three classes. One comprises those whom the name of Muhammad has
never reached at all: they are excused [for their disbelief]. The second
category comprises those who have heard his name and description, and [have
heard] of his miracles. These people live alongside Muslims and interact with
them or actually live among them. They are the disbelieving deniers (kuffar).
The third category is the class comprising those in between the other two. The
name of Muhammad s has indeed reached their ears, but they do not know his true
description and his character. Instead, they heard from the time they were
young that a deceitful liar named Muhammad s claimed to be a prophet, in the
same way our own children hear that a liar named al-Muqanna claimed to be a
prophet. As far as I am concerned, such people are [excused] like those in the
first category, for while they have heard of his name, they heard the opposite
of his true qualities. And hearing such things would never arouse one’s desire
to find out [who he was]."
It is understood that
people unaware of Islam or have a distorted view of Islam are innocent no
matter what they do, which in Britain today probably accounts for most
non-Muslims. Therefore whilst we know all disbelievers are in hell we
cannot say all non Muslims are. They may attain salvation by
virtue of Divine Amnesty, but not by virtue of their religion.
An-Nawawi (d. 1278 CE) says in Rawla al
Talibin: "Someone who does not believe that whoever follows another
religion besides Islam is an unbeliever, or doubts that such a person is an
unbeliever, or considers their sect valid, is himself an unbeliever even if he
manifests Islam and believes in it."
This is echoed in all the
major works of all Four Schools of Islamic Jurisprudence. There is
consensus on this point because to believe salvation is attained through other
means than Islam is to deny the very position of Islam itself.
Two verses
Two verses that are used to
justify both extremes of universality and exclusivity are the following:
{Surely,
those who believed in God, and those who are Jews, and Christians, and Sabians,
-whosoever believes in God and in the Last Day, and does good deeds - all such
people will have their reward with their Lord, and there will be no reason for
them to fear, nor shall they grieve.} [2:62]
{Whoever
seeks a faith other than Islam, it will never be accepted from him, and he, in
the Hereafter, will be among the losers.} [3:85]
The translations do not do
justice to the potential meanings that can be understood. Certainly there
seems some sort of conflict between the verses. In order to understand
the Qur'an - a complex science know as tafsir - requires every verses
possible meanings understood linguistically to be compared with every other
verse and the Prophet's (peace be upon him) Sunnah to identify possible
interpretations.
Classical Interpretation
Classically scholars have
understood verse 2:26 to mean those who did believe from the past - as Taqi
Usmani's translation cited suggests - combined with the apparent meaning from
verse 3:85 that only the religion Islam is valid brings about the
interpretation that other religions brought by a Prophet (like Christianity and
Judaism) were once valid, but now they are no longer valid and have been
abrogated by Islam.
Perennialist
Interpretation
Prof. Abdulaziz Sachedina
in his book The Islamic Roots of Democracy brings up some very interesting
points, some of which will be discussed on another post, God Willing. On
his chapter on the Islamic ideal of the people as one community he argues that
2:62 is also in the present tense and that 3:85 refers not to Islam as the
religion, but the literal meaning of islam; submission unto God.
Therefore he argues that these could be interpreted as if someone submits to
God (islam) sincerely then irrespective of their background they will
achieve salvation. He goes on to say that these people are saved because
of their religion, not in spite of their religion. Ultimately he
argues all religions that were valid - i.e. has a Divine source - are still
valid.
Synthesis of both
interpretations
Sachedina's interpretation
has merit although is unsatisfying. He does not interact with the
classical view sufficiently and he ignores the Sunnah as a source of
interpretation. That said his linguistic argument is true; 2:62 can be
understood in the present and 3:85 can mean islam as submission.
The scope of his interpretation, however, is more limited than he suggests since the classical interpretation cannot be rejected as a possible meaning.
I contacted Dar-alifta al Misrriyah (Fatwa Council of Egypt) with a
possible synthesis of the two interpretations for which they agreed (#208359),
which is as follows:
Islam the religion has all
the means to reach God and attain salvation if followed correctly, other religions although
beneficial have more limited means and therefore will ultimately veil one from
God. From this outward perspective Islam is the only valid religion and
abrogates all others, it is the religion God has chosen for mankind.
However, salvation is not attained by mere outward actions; moving of the limbs five times a day
or repeating the words of creed (a'qidah) on the tongue. Salvation
is attained through an internal sincere desire to be with God and please Him, not to
please one's own desires and whims. Therefore someone irrespective of
their background can attain salvation due to sincere devotion to God; they need
not necessarily be technically Muslim in the outward sense. An informed rejection of Islam is
what distances someone from God because it is rejecting Him. Should
someone sincerely seek God, Islam will be viewed positively for the truth
within it. However they may never know of Islam or only know of tales of suicide bombers and Ayatollah's, which is enough to divert any person of
sound reasoning.
Although we should make use
of the definitions and formulas used by the scholars of Islam to help guide us
to salvation, we should bear in mind that God transcends any such limitation
and is beyond anything we can imagine.
Conclusion
The worst trait found amongst some 'religious' people is self righteousness.
Such thinking completely inverts the purpose of religion because it is from
arrogance and pride, which is the surest road to perdition, as the Prophet
(peace be upon him) said: "No one who has an atom's weight of pride in his heart will
enter the Garden."
[Muslim]. God is The Judge (Al A'dil) for He has perfect knowledge
of the outward, inward and throughout all history, we do not and so cannot
judge people, to do so is placing oneself as God; the very definition of kufr.
All religions also cannot
be equally true. If all religions are seen as an attempt to try and understand the incomprehendable, then the suggestion is that they all equally fall short of understanding the Divine and so are all
equally wrong. Any religion is then interchangeable with any other and
indeed with no religion at all, which leads to confusion and chaos and the
Divine remains veiled once more.
We all stand before God and have to answer for our own selves not anyone else, so our primary concern is not someone elses station with God because we will not be asked about them, but our own: {No burdened soul will bear the burden of another} [35:18]
Further Reading
Who are the disbelievers by Hamza Yusuf in Seasons Spring 2008, see here
Friday 22 February 2013
Tuesday 19 February 2013
Women as legal witnesses
In the Name of God, The Compassionate, The Merciful,
{God has promised the believers, both men and women, Gardens graced with flowing streams where they will remain; good, peaceful homes in Gardens of lasting bliss; and – greatest of all – God’s good pleasure. That is the supreme triumph.} [9:72]
In many peoples minds and in various articles in the media etc there is the belief that a woman's testimony is only worth half that of a man's in Islamic Law. This is a gross misrepresentation of Islamic Law and that which is implied is false.
A Woman's testimony is considered equal to a Man's
A woman's testimony is equal to that of a man's in Islamic Law because she is considered of equal status, as the Prophet (peace be upon him) explicitly states:
“All people are equal, as equal as the tooth of a comb. There is no claim of merit of an Arab over a non-Arab, or a white or a black person, or a male over a female. Only God-fearing people merit a preference with God” [Ahmad]
Perhaps the clearest example of equality in testimony is in the case of imprecation (li'an); if an accusation of adultery is made by one spouse, the others denial of it is considered equal.
{As for those who accuse their own wives of adultery, but have no other witnesses, let each one four times call God to witness that he is telling the truth, and, the fifth time, call God to reject him if he is lying; punishment shall be averted from his wife if she in turn four times calls God to witness that her husband is lying and, the fifth time, calls God to reject her if he is telling the truth.} [24:6]
There are many other instances in which the legal capacity of a woman is explicitly stated as equal to that of a man's, which will be looked at further below, however the words from the authoritative work Al Hidaya by al Marghinani (d. 1197 CE) on the subject of marriage are worthy of mention:
"We maintain that she is a freewoman... She is, therefore, just like a young man, and her capacity for being free with respect to marriage is just like her freedom to undertake transactions in her wealth."
If not two men, one man and two women
The only place in the Qur'an where there is a difference in the number of witnesses due to gender is in the verse:
{You who believe, when you contract a debt for a stated term, put it down in writing: have a scribe write it down justly between you... Call in two men as witnesses. If two men are not there, then call one man and two women out of those you approve as witnesses, so that if one of the two women should forget the other can remind her...} [2:282]
The underlying cause (i'llah) for any valid transaction in Islam is agreement, specifically to business contracts by an offer for a commodity and its acceptance. As such, to avoid arguments agreements should be written and if unable then witnessed, which is the directive of this verse. The number of witnesses and gender are only specific to witnessing of a business contract, which in no way implies a deficiency to a woman's witnessing generally. Rather it is peculiar to the case at hand.
Forgetfulness
One possible interpretation of the verse is that the reason for having two women witnesses is that women are forgetful. This could be either by their nature or the social circumstances, although classical scholar have gone with the latter.
Some argue that there is something inherent in women that is forgetful by their nature, for example they are less particular about details then men and are therefore more inclined to forget them. This understanding does exist as folk lore, although would need to be corroborated by scientific research, which may exist or not? However, I would argue that if there is some inherent 'forgetfulness' particular to women then why are women allowed as witnesses at all? There is no reason why the second woman would not also forget if this were true.
The classical works identify the witnessing here to be to do with outwardly public matters and therefore the reasons are entirely social. The great contemporary scholar al Zuhayli (b. 1932 CE) argues that the additional woman is purely for social practicalities (see here). The second witness is there to corroborate the story of the first, this also applies to the male witnesses; hence why two are needed. In Islamic society men and women have limited contact and would therefore not be as readily able to remind a witness of the opposite gender. Extending this, the respected scholar M I H Pirzada (b. 1946 CE) in his book The Status of Women in Islam argues that since modern scientific research has proven: "women are characterised by the tendency to be more easily discouraged by failure than men" (Encyclopedia Britannica, Status of women) then in the intimidating situation of a contract dispute the other woman is there to console and support her should she forget out of fear.
Familiarity with the subject
In Islamic Law, studying the law of business (fiqh al buyu') is obligatory (wajib) on all males who have dependents, whereas it is not so with women. Since laws are based on generalities, therefore, men are given precedence in this one specific case due to the assumption that they are more familiar with the subject matter. If the the underlying cause (i'llah) is familiarity with the subject as the foremost scholar al Buti (b. 1929 CE) argues then a different subject more familiar with women, such as child birth etc, would give them precedence (see here).
Speculating somewhat, we may deduce that as a Shafi'i scholar this may highlight an underlying cause which differs from the Hanafi's. As such on the above reasoning the ratio of witnesses is general and maybe overruled by exceptions. For example, a woman with a PhD in economics or a degree in business etc would be proof of her familiarity with business contracts, in the same way that a male gynecologist would also be proof of his familiarity. It certainly stresses that expert witnesses may be of any gender and the rules are merely general based on customs for those that witnessed the event only.
Capital punishment - Hadd
Scholars have extended the ratio of witnessing in business contracts to that of criminal law and other outward public law, since this is understood as the effective cause (i'lla).
The name sake of the Hanafi School, Abu Hanifa (d. 767 CE) in Kitab al Athar informed his student that his teacher Nakha'i (d. 726 CE) said: "testimony of women along with men is valid in everything apart from hadd punishments." An understanding of Islamic Criminal Law is important here to understand what is meant.
In Islamic Law there are two types of punishments hadd and ta'zir. Hadd linguistically means restraint and prevention. Technically it is corporal or capital punishments for either: murder, theft, adultery, unsubstantiated accusation of adultery, drunkenness, rebellion and brigandage. Hadd marks the uppermost limit of punishments in these crimes and has very strict conditions that must be met. The punishments are severe and it is understood to invoke fear, however its application is with mercy because the intention is not to punish but to prevent. The hadith narrated by the companion ibn Abbas from the Prophet (peace be upon him) elucidates:
"Prevent the [application of] hadd punishments because of ambiguity."
It is obligatory on the judge to look for the slightest doubt and lessen the punishment to that of ta'zir. Ta'zir means disgrace and is a discretionary punishment enacted by the judge or state for those found guilty of a crime that does not fulfil the requirements of hadd or is not a crime punishable by hadd. The reason therefore that a woman's testimony is not taken into account for hadd punishments is because only men are mentioned as witnesses from the texts of the Qur'an. Whilst it doesn't prohibit women and would therefore seem reasonable to make the analogy with witnessing in business contracts, there is an element of doubt and so because doubt lifts hadd, only men are taken in these cases. Hadd, however is not proof of guilt so a crime may be witnessed by only women for which the judge finds the defendant guilty and applies ta'zir, just not hadd.
The upshot of the above, is that it decreases the chances of someone having the severest penalties, but justice is still being served.
Women as witnesses by themselves
The ratio of one man to two women is also generally applied to all other matters of public affairs, such as financial claims, divorce, marriage and emancipation etc. However women as independent witnesses of men is normally only accepted in all personal matters that are not accessible to men, like birth and the anatomical defects of women etc. The reason for the difference made between public and private matters is purely social and for the protection of women, as such one upright women in these private matters is sufficient as a witness according to Abu Hanifa and Ahmed ibn Hanbal (d. 855 CE) - namesake of the Hanbali School.
Women as Judges
Perhaps most indicative of debate amongst classical scholarship relative to a woman's testimony is that women can serve as judges. Generally speaking Maliki, Shaf'i and Hanbali Scholars do not permit women judges owing to analogy with a hadith alluding to women not being permitted to be head of state, although its application generally is debated (see here). In the Hanafi School women serve as judges in all cases they can give testimony in, i.e. not criminal law involving hadd punishments. This is in keeping with Islamic metaphysics; woman viewed as primarily of the gentle characteristics would then seem 'unnatural' holding the position of something so strikingly severe as adminitering capital punishment (see here). Scholars have been more liberal, although of the minority, for example the primary Quranic exegete Tabari (d. 923 CE) argues that since there is no disagreement at all that a woman may be a mufti (juristic expert that defines the law and is advisor to the judge) absolutely, then by analogy she may be the lesser station of judge (qadi) absolutely, since there is no explicit text to suggest otherwise.
Female Judges are not common in British History, the first being Rose Heilbron in 1957, and currently only 23% of judges are women although this is very low compared to the rest of Europe (see here). Likewise the only judge installed officially that is well known in the Islamic World is Thamal Al-Qahramanah (d. 937). Interestingly women's involvement in law in the Muslim World is the reverse of Europe's; most involvement was at the dawn of Islam, which has steadily declined over time as Dr Akram An-Nadwi of Oxford University has proven. Whilst it is indeed rare in Islamic history, women judges are not without precedent and so re-engagement by women in Islamic Law is by no means prohibited and given that it is a communal obligation (fard kifayyah) to have female legal experts, it should be actively encouraged.
Conclusion
English Law like Islamic Law has two courts; the Criminal and the Civil. The Criminal is for crimes against the public, has severer punishments, is very public with a jury etc and requires strong evidence: 'beyond reasonable doubt.' The Civil courts are for disagreements between people, has lesser punishments, is private and merely requires a judgement in favour of one party over the other. Islamic Law is not vastly different here except that in public cases women are required to give evidence accompanied by a man for protection and another women for support, mirroring Islamic society and the overarching concept of protecting a woman's dignity and honour. However, in private matters away from the public's beady eye, the woman is safe and secure and is thus able to give evidence independently. Whilst Islamic Law does differ to modern English Law in making any distinction between genders, it is clear that this is not born out of injustice or the belief that women are inferior. In fact the only people that think this are simply ignorant or have prejudices that say more about their own psyche than anything at all to do with Islamic Law!
The above gives a broad view of witnesses in Islamic Law, which presumes a traditional Islamic society. This is a complex field far beyond my or most people's capabilities, however the question arises whether the same conclusions drawn by classical scholarship are applicable to a modern society like Britain? There is much scope for debate since the argument is based on analogical reasoning (qiyas) rather than a clear text (nass). Qiyas is a mode of independent legal reasoning (ijtihad) and therefore may be overruled by legal preference (istihsan) should the resulting analogy prove unfair or unjust. The majority of scholars have extended the number of witnesses described in 2:282 to all matters of public affairs accessible to men (thus assumed less accessible by women), although this is a general trend and there is scope for exceptions in a particular case should justice not be served. Whilst the argument for abstaining to use a women's testimony in hadd punishment is considered sound and agreed upon, other than this may be in need of re-evaluation. Speculating yet further, the verse 2:282 may not necessarily be obligatory as it appears in the form of recommendation as the reformer ibn Taymiyyah (d. 1328) argues. Further expert investigation would be most interesting, but alas is beyond this post.
And God knows best
{God has promised the believers, both men and women, Gardens graced with flowing streams where they will remain; good, peaceful homes in Gardens of lasting bliss; and – greatest of all – God’s good pleasure. That is the supreme triumph.} [9:72]
 |
| The forgotten women scholars of islam (see here) |
A Woman's testimony is considered equal to a Man's
A woman's testimony is equal to that of a man's in Islamic Law because she is considered of equal status, as the Prophet (peace be upon him) explicitly states:
“All people are equal, as equal as the tooth of a comb. There is no claim of merit of an Arab over a non-Arab, or a white or a black person, or a male over a female. Only God-fearing people merit a preference with God” [Ahmad]
Perhaps the clearest example of equality in testimony is in the case of imprecation (li'an); if an accusation of adultery is made by one spouse, the others denial of it is considered equal.
{As for those who accuse their own wives of adultery, but have no other witnesses, let each one four times call God to witness that he is telling the truth, and, the fifth time, call God to reject him if he is lying; punishment shall be averted from his wife if she in turn four times calls God to witness that her husband is lying and, the fifth time, calls God to reject her if he is telling the truth.} [24:6]
There are many other instances in which the legal capacity of a woman is explicitly stated as equal to that of a man's, which will be looked at further below, however the words from the authoritative work Al Hidaya by al Marghinani (d. 1197 CE) on the subject of marriage are worthy of mention:
"We maintain that she is a freewoman... She is, therefore, just like a young man, and her capacity for being free with respect to marriage is just like her freedom to undertake transactions in her wealth."
If not two men, one man and two women
The only place in the Qur'an where there is a difference in the number of witnesses due to gender is in the verse:
{You who believe, when you contract a debt for a stated term, put it down in writing: have a scribe write it down justly between you... Call in two men as witnesses. If two men are not there, then call one man and two women out of those you approve as witnesses, so that if one of the two women should forget the other can remind her...} [2:282]
The underlying cause (i'llah) for any valid transaction in Islam is agreement, specifically to business contracts by an offer for a commodity and its acceptance. As such, to avoid arguments agreements should be written and if unable then witnessed, which is the directive of this verse. The number of witnesses and gender are only specific to witnessing of a business contract, which in no way implies a deficiency to a woman's witnessing generally. Rather it is peculiar to the case at hand.
Forgetfulness
One possible interpretation of the verse is that the reason for having two women witnesses is that women are forgetful. This could be either by their nature or the social circumstances, although classical scholar have gone with the latter.
Some argue that there is something inherent in women that is forgetful by their nature, for example they are less particular about details then men and are therefore more inclined to forget them. This understanding does exist as folk lore, although would need to be corroborated by scientific research, which may exist or not? However, I would argue that if there is some inherent 'forgetfulness' particular to women then why are women allowed as witnesses at all? There is no reason why the second woman would not also forget if this were true.
The classical works identify the witnessing here to be to do with outwardly public matters and therefore the reasons are entirely social. The great contemporary scholar al Zuhayli (b. 1932 CE) argues that the additional woman is purely for social practicalities (see here). The second witness is there to corroborate the story of the first, this also applies to the male witnesses; hence why two are needed. In Islamic society men and women have limited contact and would therefore not be as readily able to remind a witness of the opposite gender. Extending this, the respected scholar M I H Pirzada (b. 1946 CE) in his book The Status of Women in Islam argues that since modern scientific research has proven: "women are characterised by the tendency to be more easily discouraged by failure than men" (Encyclopedia Britannica, Status of women) then in the intimidating situation of a contract dispute the other woman is there to console and support her should she forget out of fear.
Familiarity with the subject
In Islamic Law, studying the law of business (fiqh al buyu') is obligatory (wajib) on all males who have dependents, whereas it is not so with women. Since laws are based on generalities, therefore, men are given precedence in this one specific case due to the assumption that they are more familiar with the subject matter. If the the underlying cause (i'llah) is familiarity with the subject as the foremost scholar al Buti (b. 1929 CE) argues then a different subject more familiar with women, such as child birth etc, would give them precedence (see here).
Speculating somewhat, we may deduce that as a Shafi'i scholar this may highlight an underlying cause which differs from the Hanafi's. As such on the above reasoning the ratio of witnesses is general and maybe overruled by exceptions. For example, a woman with a PhD in economics or a degree in business etc would be proof of her familiarity with business contracts, in the same way that a male gynecologist would also be proof of his familiarity. It certainly stresses that expert witnesses may be of any gender and the rules are merely general based on customs for those that witnessed the event only.
Capital punishment - Hadd
Scholars have extended the ratio of witnessing in business contracts to that of criminal law and other outward public law, since this is understood as the effective cause (i'lla).
The name sake of the Hanafi School, Abu Hanifa (d. 767 CE) in Kitab al Athar informed his student that his teacher Nakha'i (d. 726 CE) said: "testimony of women along with men is valid in everything apart from hadd punishments." An understanding of Islamic Criminal Law is important here to understand what is meant.
In Islamic Law there are two types of punishments hadd and ta'zir. Hadd linguistically means restraint and prevention. Technically it is corporal or capital punishments for either: murder, theft, adultery, unsubstantiated accusation of adultery, drunkenness, rebellion and brigandage. Hadd marks the uppermost limit of punishments in these crimes and has very strict conditions that must be met. The punishments are severe and it is understood to invoke fear, however its application is with mercy because the intention is not to punish but to prevent. The hadith narrated by the companion ibn Abbas from the Prophet (peace be upon him) elucidates:
"Prevent the [application of] hadd punishments because of ambiguity."
It is obligatory on the judge to look for the slightest doubt and lessen the punishment to that of ta'zir. Ta'zir means disgrace and is a discretionary punishment enacted by the judge or state for those found guilty of a crime that does not fulfil the requirements of hadd or is not a crime punishable by hadd. The reason therefore that a woman's testimony is not taken into account for hadd punishments is because only men are mentioned as witnesses from the texts of the Qur'an. Whilst it doesn't prohibit women and would therefore seem reasonable to make the analogy with witnessing in business contracts, there is an element of doubt and so because doubt lifts hadd, only men are taken in these cases. Hadd, however is not proof of guilt so a crime may be witnessed by only women for which the judge finds the defendant guilty and applies ta'zir, just not hadd.
The upshot of the above, is that it decreases the chances of someone having the severest penalties, but justice is still being served.
Women as witnesses by themselves
The ratio of one man to two women is also generally applied to all other matters of public affairs, such as financial claims, divorce, marriage and emancipation etc. However women as independent witnesses of men is normally only accepted in all personal matters that are not accessible to men, like birth and the anatomical defects of women etc. The reason for the difference made between public and private matters is purely social and for the protection of women, as such one upright women in these private matters is sufficient as a witness according to Abu Hanifa and Ahmed ibn Hanbal (d. 855 CE) - namesake of the Hanbali School.
Women as Judges
Perhaps most indicative of debate amongst classical scholarship relative to a woman's testimony is that women can serve as judges. Generally speaking Maliki, Shaf'i and Hanbali Scholars do not permit women judges owing to analogy with a hadith alluding to women not being permitted to be head of state, although its application generally is debated (see here). In the Hanafi School women serve as judges in all cases they can give testimony in, i.e. not criminal law involving hadd punishments. This is in keeping with Islamic metaphysics; woman viewed as primarily of the gentle characteristics would then seem 'unnatural' holding the position of something so strikingly severe as adminitering capital punishment (see here). Scholars have been more liberal, although of the minority, for example the primary Quranic exegete Tabari (d. 923 CE) argues that since there is no disagreement at all that a woman may be a mufti (juristic expert that defines the law and is advisor to the judge) absolutely, then by analogy she may be the lesser station of judge (qadi) absolutely, since there is no explicit text to suggest otherwise.
Female Judges are not common in British History, the first being Rose Heilbron in 1957, and currently only 23% of judges are women although this is very low compared to the rest of Europe (see here). Likewise the only judge installed officially that is well known in the Islamic World is Thamal Al-Qahramanah (d. 937). Interestingly women's involvement in law in the Muslim World is the reverse of Europe's; most involvement was at the dawn of Islam, which has steadily declined over time as Dr Akram An-Nadwi of Oxford University has proven. Whilst it is indeed rare in Islamic history, women judges are not without precedent and so re-engagement by women in Islamic Law is by no means prohibited and given that it is a communal obligation (fard kifayyah) to have female legal experts, it should be actively encouraged.
Conclusion
English Law like Islamic Law has two courts; the Criminal and the Civil. The Criminal is for crimes against the public, has severer punishments, is very public with a jury etc and requires strong evidence: 'beyond reasonable doubt.' The Civil courts are for disagreements between people, has lesser punishments, is private and merely requires a judgement in favour of one party over the other. Islamic Law is not vastly different here except that in public cases women are required to give evidence accompanied by a man for protection and another women for support, mirroring Islamic society and the overarching concept of protecting a woman's dignity and honour. However, in private matters away from the public's beady eye, the woman is safe and secure and is thus able to give evidence independently. Whilst Islamic Law does differ to modern English Law in making any distinction between genders, it is clear that this is not born out of injustice or the belief that women are inferior. In fact the only people that think this are simply ignorant or have prejudices that say more about their own psyche than anything at all to do with Islamic Law!
The above gives a broad view of witnesses in Islamic Law, which presumes a traditional Islamic society. This is a complex field far beyond my or most people's capabilities, however the question arises whether the same conclusions drawn by classical scholarship are applicable to a modern society like Britain? There is much scope for debate since the argument is based on analogical reasoning (qiyas) rather than a clear text (nass). Qiyas is a mode of independent legal reasoning (ijtihad) and therefore may be overruled by legal preference (istihsan) should the resulting analogy prove unfair or unjust. The majority of scholars have extended the number of witnesses described in 2:282 to all matters of public affairs accessible to men (thus assumed less accessible by women), although this is a general trend and there is scope for exceptions in a particular case should justice not be served. Whilst the argument for abstaining to use a women's testimony in hadd punishment is considered sound and agreed upon, other than this may be in need of re-evaluation. Speculating yet further, the verse 2:282 may not necessarily be obligatory as it appears in the form of recommendation as the reformer ibn Taymiyyah (d. 1328) argues. Further expert investigation would be most interesting, but alas is beyond this post.
And God knows best
Tuesday 12 February 2013
Combining Prayer
In the Name of God; Most Compassionate, Most Merciful
Recently I was discussing with someone about the difficulty of praying at work. The conversation went onto combining of prayers for ease. He said this was something he knew of, but had not really done or looked into. Therefore, for information I thought I might write something about the various positions amongst the scholars of Islam. The topic does also show the fundamental differences between the methodologies of the four Sunni Schools of Law - Hanafi, Maliki, Shafi'i and Hanbali - and so is also a useful topic for comparative jurisprudence.
Quranic verse on the timings of prayer
{Prayer is obligatory for the believers at prescribed times} [4:103]
This verse is clear and is used unanimously as a general command of obligation on Muslims to pray at specific times, for which the details are found elsewhere in the Sunnah. These are the prayers at: the morning (fajr), noon (dhuhr), the mid afternoon (asr), dusk (maghrib) and night (i'sha). There is slight disagreement about the exact timings of some of these prayers, but that is beyond the scope of this post.
Combining of prayer in the Sunnah
There are many narrations that speak of the Prophet (peace be upon him) combing prayers. Scholars argue over their authenticity, but the ones agreed upon - for which the others merely corroborate a particular interpretation - are these. I have numbered them so that they can referred to easily:
1. Anas ibn Malik said: "When the Prophet, may Allah bless him and grant him peace, set off on a journey before noon, he would delay Dhuhr until the time of 'Asr and then join the two. If it was past noon, he would pray Dhuhr and then mount." [Bukhari, Muslim]
2. ibn 'Umar said, "I saw the Messenger of Allah, may Allah bless him and grant him peace, when he was in a hurry on a journey, delay Maghrib and join it with 'Isha'." [Bukhari, Muslim]
3. ibn Abbas said: "The Messenger of Allah combined the dhuhr and 'asr and then the maghrib and 'isha in Medinah without there being any danger or rain." Ibn 'Abbas was asked: "What did he desire by that action?" He replied: "He did not want any hardship for his community." [Muslim]
There is a disagreement between the verse of the Qur'an and the Sunnah for which the scholars have differed in how to interpret this.
Hanafi prohibition of 'true' combining
The Hanafi School differs in interpreting the Qur'an because it argues that a general verse is as definitive (A'mm) as a particular (Khass) one and so can supersede its meaning. In this case the general understanding from the Quranic verse is seen as definitive and therefore all seemingly contrary evidences are interpreted accordingly. In other words prayers are at their fixed times and they cannot be moved from this.
Whilst the hadith above could mean combining two prayers in one prayer time, they are somewhat speculaitve because they could also mean combining in one place. So that statements like in hadith 1: "he would delay Dhuhr until the time of 'Asr and then join the two," could mean the Prophet (peace be upon him) delayed prayer until he just caught the end of Dhuhr time and then prayed 'Asr right at the beginning of its time, all in one place.
Therefore the Hanafi Scholars have argued that a speculative interpretation cannot override a clear one. Other hadith corroborate this interpretation, such as:
ibn Masu'd said: "I never observed the Messenger of God (peace be upon him) pray any prayer out of its time except as Muzdalifa [during the pilgrimage]. He combined Maghrib and Isha at Muzdalifa" [Bukhari, Muslim]
They argue it is virtually impossible that a companion of ibn Masu'd's knowledge would be unaware of combining prayers. It is also probably worth noting that ibn Masu'd initiated the Kufan School in Iraq that was the forerunner to the Hanafi School, which may explain their reasoning. Whilst this narration does seem to also contradict their interpretation somewhat, they would argue that the prayer at Muzdalifa during pilgrimage (Hajj) is a special act of worship reserved for only then, i.e. it is the prescribed time, just to a different one.
Maliki combining due to hardship
The Maliki's synthesised both the verse and the hadith so that there is effectively three prayer times: fajr, dhuhr and a'sr make one time, and maghrib and i'sha make another. However, to pray outside of the usual five times is impermissible without a valid excuse. The effective cause (i'lla) for the excuse is considered hardship, owing to the words from hadith 3 "He did not want any hardship for his community." It is worth noting that the force of the evidences to pray in the correct five times is great and so the excuses are likewise great. Therefore, they have identified severe illness, chronic breaking of ritual purity, heavy rain for a congregation at night and a hurried journey. The last two points need a little explanation.
There are a number of evidences that point to rain as an excuse, which can also be understood from hadith 3. However, the Maliki's argue it is only rain at night or treacherous mud owing to the hardship endured. From some rather complex legal argument this may seem an unnecessary specification, rather than just saying heavy rain generally. However the Maliki methodology makes use of the Practice (Amal) of the people of Madina as evidence also. Since the school initiated in the cities of Mecca and Madina at a time when the Prophet's Sunnah was in living memory and prevalently practiced, they used common practice of upright knowledgeable Muslims like a hadith. A narration not by word of mouth, but by observation and repetition. It is argued that this is a sounder form of evidence than a hadith because you remember more of what you witness than what you merely hear.
The Maliki's also argue that the journey which permits combining of prayers must be hurried. Mention of this can be seen in hadith 2 "when he was in a hurry on a journey." Since the effective cause is hardship then the only journey included as an excuse is a difficult one. Journeys for mere amusement etc are not considered a valid excuse.
Shafi'i combining for rain and travelling
The Shafi'i's argued the verse is general, but the hadiths give exceptions. Therefore the only excuses are those stipulated in the hadith, namely that of heavy rain if praying in congregation and travelling. The Shafi'i School is heavily text based and more literalistic than the two already discussed, therefore the excuses are not as defined as the Maliki School since the texts are silent on this matter.
Hanbali most lenient
The Hanbali School generally views the Qur'an and Sunnah as one source of equal weighting and relies heavily on the transmissions from the first three generations (the salaf). On this point they are the most lenient as they have taken the hadith 3 "He did not want any hardship for his community," equal to that of the verse. As such they have been more liberal in describing the hardships which permit combining. They have identified: travelling, sickness, a breast feeding women, chronic breaking of ritual purity and - most interestingly given our times - combining due to fear of loss of property or wealth (i.e. this means prayer can be combined at work if difficult).
Modern Discussion
There are many many more arguments within each school that have not been mentioned, as well as those outside of them. Although, it paints a picture of the Sunni understanding of combining of prayers. As we have moved to the modern era, scholars have very much repeated the above since prayer is from the acts of worship (ibadat) and beyond reasoning. However, they are also sympathetic to the situation we find ourselves in today and are normally a little more liberal in giving verdicts (fatwa).
Sh. Abdullah bin Bayyah - one of the most erudite and respected scholars of our age, having formal permission (ijaza) to give legal opinions in all four schools of law - says:
"There is a valid opinion amongst the recognised fuqaha (scholars) ... in circumstances where people really have a difficult time, it is better that they join their prayers rather than lose their prayers altogether because if you do not present those options for them, there are people who say, "I can't pray. It's too hard. I'm working and this and that;" and their iman (faith) might be weak. So, in these types of situations, there has to be facilitation for these people."
The European Fatwa Council stated, also making use of hadith 3:
"The Council concluded that it is permitted to combine two prayers in Europe during Summer when Isha enters around midnight, or the signs of Ishā' disappear totally, so that Muslims do not face difficulty ... In the same respect, it is also permitted for a Muslim to combine Dhuhr and 'Asr prayers in these countries during winter when the day is very short and it becomes increasingly difficult for employees to pray each in its own time. The Council, however, warns Muslims against combining the said prayers without the actual need to and against making this permission a constant habit."
Conclusion
The scholars of Islam have defined clear methodologies for identifying and interpreting evidence. Since they differed in this then they also differed in the concluding rulings they derived. Generally it is not considered permissible to mix between the schools in a single act as it may produce something contradictory - something the Shariah is not - however it is permissible to take a dispensation (rukhsa) from another school due to hardship. The plurality of legal opinions in Islamic Law give vast freedoms for people of all walks of life. Of course some opinions are safer and more religiously precautionary than others. And whilst we are free to choose, we must remember it is our own selves who will have to answer for our actions. As the saying goes there is a difference between fatwa (legal verdict) and taqwa (piety).
"Ibn Mas'ud said: "I asked the Messenger of God, may God bless him and grant him peace, 'What is the best action?' He said, 'The prayer in its time.'" [Bukhari, Muslim]
And God knows best
Further Reading
Quranic verse on the timings of prayer
{Prayer is obligatory for the believers at prescribed times} [4:103]
This verse is clear and is used unanimously as a general command of obligation on Muslims to pray at specific times, for which the details are found elsewhere in the Sunnah. These are the prayers at: the morning (fajr), noon (dhuhr), the mid afternoon (asr), dusk (maghrib) and night (i'sha). There is slight disagreement about the exact timings of some of these prayers, but that is beyond the scope of this post.
Combining of prayer in the Sunnah
There are many narrations that speak of the Prophet (peace be upon him) combing prayers. Scholars argue over their authenticity, but the ones agreed upon - for which the others merely corroborate a particular interpretation - are these. I have numbered them so that they can referred to easily:
1. Anas ibn Malik said: "When the Prophet, may Allah bless him and grant him peace, set off on a journey before noon, he would delay Dhuhr until the time of 'Asr and then join the two. If it was past noon, he would pray Dhuhr and then mount." [Bukhari, Muslim]
2. ibn 'Umar said, "I saw the Messenger of Allah, may Allah bless him and grant him peace, when he was in a hurry on a journey, delay Maghrib and join it with 'Isha'." [Bukhari, Muslim]
3. ibn Abbas said: "The Messenger of Allah combined the dhuhr and 'asr and then the maghrib and 'isha in Medinah without there being any danger or rain." Ibn 'Abbas was asked: "What did he desire by that action?" He replied: "He did not want any hardship for his community." [Muslim]
There is a disagreement between the verse of the Qur'an and the Sunnah for which the scholars have differed in how to interpret this.
Hanafi prohibition of 'true' combining
The Hanafi School differs in interpreting the Qur'an because it argues that a general verse is as definitive (A'mm) as a particular (Khass) one and so can supersede its meaning. In this case the general understanding from the Quranic verse is seen as definitive and therefore all seemingly contrary evidences are interpreted accordingly. In other words prayers are at their fixed times and they cannot be moved from this.
Whilst the hadith above could mean combining two prayers in one prayer time, they are somewhat speculaitve because they could also mean combining in one place. So that statements like in hadith 1: "he would delay Dhuhr until the time of 'Asr and then join the two," could mean the Prophet (peace be upon him) delayed prayer until he just caught the end of Dhuhr time and then prayed 'Asr right at the beginning of its time, all in one place.
Therefore the Hanafi Scholars have argued that a speculative interpretation cannot override a clear one. Other hadith corroborate this interpretation, such as:
ibn Masu'd said: "I never observed the Messenger of God (peace be upon him) pray any prayer out of its time except as Muzdalifa [during the pilgrimage]. He combined Maghrib and Isha at Muzdalifa" [Bukhari, Muslim]
They argue it is virtually impossible that a companion of ibn Masu'd's knowledge would be unaware of combining prayers. It is also probably worth noting that ibn Masu'd initiated the Kufan School in Iraq that was the forerunner to the Hanafi School, which may explain their reasoning. Whilst this narration does seem to also contradict their interpretation somewhat, they would argue that the prayer at Muzdalifa during pilgrimage (Hajj) is a special act of worship reserved for only then, i.e. it is the prescribed time, just to a different one.
Maliki combining due to hardship
The Maliki's synthesised both the verse and the hadith so that there is effectively three prayer times: fajr, dhuhr and a'sr make one time, and maghrib and i'sha make another. However, to pray outside of the usual five times is impermissible without a valid excuse. The effective cause (i'lla) for the excuse is considered hardship, owing to the words from hadith 3 "He did not want any hardship for his community." It is worth noting that the force of the evidences to pray in the correct five times is great and so the excuses are likewise great. Therefore, they have identified severe illness, chronic breaking of ritual purity, heavy rain for a congregation at night and a hurried journey. The last two points need a little explanation.
There are a number of evidences that point to rain as an excuse, which can also be understood from hadith 3. However, the Maliki's argue it is only rain at night or treacherous mud owing to the hardship endured. From some rather complex legal argument this may seem an unnecessary specification, rather than just saying heavy rain generally. However the Maliki methodology makes use of the Practice (Amal) of the people of Madina as evidence also. Since the school initiated in the cities of Mecca and Madina at a time when the Prophet's Sunnah was in living memory and prevalently practiced, they used common practice of upright knowledgeable Muslims like a hadith. A narration not by word of mouth, but by observation and repetition. It is argued that this is a sounder form of evidence than a hadith because you remember more of what you witness than what you merely hear.
The Maliki's also argue that the journey which permits combining of prayers must be hurried. Mention of this can be seen in hadith 2 "when he was in a hurry on a journey." Since the effective cause is hardship then the only journey included as an excuse is a difficult one. Journeys for mere amusement etc are not considered a valid excuse.
Shafi'i combining for rain and travelling
The Shafi'i's argued the verse is general, but the hadiths give exceptions. Therefore the only excuses are those stipulated in the hadith, namely that of heavy rain if praying in congregation and travelling. The Shafi'i School is heavily text based and more literalistic than the two already discussed, therefore the excuses are not as defined as the Maliki School since the texts are silent on this matter.
Hanbali most lenient
The Hanbali School generally views the Qur'an and Sunnah as one source of equal weighting and relies heavily on the transmissions from the first three generations (the salaf). On this point they are the most lenient as they have taken the hadith 3 "He did not want any hardship for his community," equal to that of the verse. As such they have been more liberal in describing the hardships which permit combining. They have identified: travelling, sickness, a breast feeding women, chronic breaking of ritual purity and - most interestingly given our times - combining due to fear of loss of property or wealth (i.e. this means prayer can be combined at work if difficult).
Modern Discussion
There are many many more arguments within each school that have not been mentioned, as well as those outside of them. Although, it paints a picture of the Sunni understanding of combining of prayers. As we have moved to the modern era, scholars have very much repeated the above since prayer is from the acts of worship (ibadat) and beyond reasoning. However, they are also sympathetic to the situation we find ourselves in today and are normally a little more liberal in giving verdicts (fatwa).
Sh. Abdullah bin Bayyah - one of the most erudite and respected scholars of our age, having formal permission (ijaza) to give legal opinions in all four schools of law - says:
"There is a valid opinion amongst the recognised fuqaha (scholars) ... in circumstances where people really have a difficult time, it is better that they join their prayers rather than lose their prayers altogether because if you do not present those options for them, there are people who say, "I can't pray. It's too hard. I'm working and this and that;" and their iman (faith) might be weak. So, in these types of situations, there has to be facilitation for these people."
The European Fatwa Council stated, also making use of hadith 3:
"The Council concluded that it is permitted to combine two prayers in Europe during Summer when Isha enters around midnight, or the signs of Ishā' disappear totally, so that Muslims do not face difficulty ... In the same respect, it is also permitted for a Muslim to combine Dhuhr and 'Asr prayers in these countries during winter when the day is very short and it becomes increasingly difficult for employees to pray each in its own time. The Council, however, warns Muslims against combining the said prayers without the actual need to and against making this permission a constant habit."
Conclusion
The scholars of Islam have defined clear methodologies for identifying and interpreting evidence. Since they differed in this then they also differed in the concluding rulings they derived. Generally it is not considered permissible to mix between the schools in a single act as it may produce something contradictory - something the Shariah is not - however it is permissible to take a dispensation (rukhsa) from another school due to hardship. The plurality of legal opinions in Islamic Law give vast freedoms for people of all walks of life. Of course some opinions are safer and more religiously precautionary than others. And whilst we are free to choose, we must remember it is our own selves who will have to answer for our actions. As the saying goes there is a difference between fatwa (legal verdict) and taqwa (piety).
"Ibn Mas'ud said: "I asked the Messenger of God, may God bless him and grant him peace, 'What is the best action?' He said, 'The prayer in its time.'" [Bukhari, Muslim]
And God knows best
Further Reading
Bidayat Al-Mujtahid Wa
Nihayat Al-Muqtasid (The Distinguished Jurist's Primer) vol 1 by ibn Rushd
(trans. Imran Nyazee), Garnet Publishing Ltd
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