By Maryam Sakeenah
March 04, 2016
Both Quran as well as its explanation in Hadith stipulate little legislation with regards to the characteristics of a modern society. There is wisdom in this silence — it understands the essential condition of human society: its flux
The fervour with which the Pakistani religious right has contested the criminalisation of domestic violence reflects their misogyny as well as insecurity over a perceived loss of patriarchy. Nevertheless, its deeper observation also illustrates the presence of a mindset that reduces religion to a mere mimetic replication of the first Islamic society of Arabia over fourteen centuries ago.
One of the major justifications given by clerics behind opposing the Women Protection Bill, which prescribes punishments for domestic violence, is that such a law is essentially ‘against the Shariah’, as it innovates laws, not hitherto specified by the primary sources of religion.
This mindset is also surfacing elsewhere in the form of the Islamic State’s (IS) revival of institutionalised slavery as an ‘Islamic’ practice, its starkest manifestation, on the grounds that there is no explicit criminalization of the practice in Islam.
The problem with this thesis is that it is literalist in interpretation and mimetic in implementation. This duo of literalism and mimesis vindicates and endorses as ‘Islamic’ many authoritarian and misogynistic practices, dating from the time and place in which Islam was first set; even when such practices are unacceptable today in the light of the fundamental rights and principles over which humanity has achieved a quiet, universal consensus.
But what really needs to be examined is whether Islam even calls for an exclusively literalist reading of its sources and a mimetic replication of seventh century Arabia everywhere and at all times?
Both Quran as well as its explanation in Hadith stipulate little legislation with regards to the characteristics of a modern society. There is wisdom in this silence — it understands the essential condition of human society: its flux. This means that as societies evolve and grow over time, their needs change, and hence, in order to have a relevant legal system they need rules that must be both flexible and adaptive to novel situations and conditions, whenever they arise. Therefore, there is a deliberate purpose in this silence — to give freedom to legislation relevant to the time and place. Even then, the sources of Islam are complete in themselves, mainly because they leave pointers, guidelines and suggestions, which must inspire and lead such lawmaking in the right direction.
This understanding was not forgotten by the Tabi’un — the first generation of Muslims after the passing of the Prophet (PBUH) - who made Ijtihad a vital institution for progressive juristic innovation; a notable example being Umar (R.A)’s innovations in the divorce laws to cater to the trends in his time.
Furthermore, the purpose of the law is to safeguard values which are at the core of Islam. The legal aspect of the Shariah exists to protect the ‘Maqasid al Shariah’ - its core values. At times such law is explicitly laid down by the sources. Often, it is not. The scholars of Islam unanimously concur that in order to ensure the achievement of the Maqasid, juridical innovation can be made, but within the parameters defined by Islamic sources; namely, Ijtihad.
One of these Maqasid is the dignity and sanctity of a human’s personal integrity. When a woman goes through domestic abuse, it violates both her dignity and respect as a human being as well as her fundamental rights as a partner-in-marriage. There is absolutely no equivocation in Islamic sources about this being a condemnable behaviour. The acceptability of domestic violence as the husband’s prerogative in Arabia has been found to predate the Islamic society. There is also no ambiguity in the sources of Islam regarding the reprehensibility of domestic violence. Islam, in reality, rejects domestic violence as the man’s prerogative to have his way with his spouse by making gentle physical admonition exclusively tolerable in extreme cases of ‘Nushuz’ (rebellion/defiance as in the case of unabashed disloyalty) and that too, after exhausting all other preferred strategies. Even then, the strictest conditions are laid down to ensure that neither pain is inflicted nor a mark left. Islam does not really require men to put this exceptional permissibility to action in any situation at all.
Simultaneously, the Prophetic conduct shows how this never really has to be done, and there are always better ways to resolve marital discord. He said, “How does anyone of you beat his wife as he beats the stallion camel and then be intimate with her?” (Bukhari, vol. 8, Hadith 68)
The Quran says that spouses are to “dwell in tranquillity with each other” (Ar-Rum 21). It instructs husbands to “live with them on a footing of kindness and equity.” (An-Nisaa 19)
In a society where honour killings, acid throwing, domestic and sexual violence are far too common, legislations that target these horrendous practices work well to fulfil the Maqasid of the Shariah. Any legislation to ensure the provision and protection of the human rights recognized by Islam is commendable, illustrated by the Prophet (PBUH)’s praise for the ‘Half ul Fuzul’ a pre Islamic peacemaking document that laid down human rights.
Even though the Women Protection Bill still needs to be examined and modified to rule out its misuse, there can be no doubt about its fulfilment, at least in objective, of the responsibility Islam demands of us- to deter violence against the vulnerable and provide an access to justice.
While constructive criticism and suggestions should be welcomed, the tirade from the religious right-wing against the law is tragic because it seems to imply that Islam supports male abuser and even slights the issue of domestic violence. This is a dangerous and ugly untruth, which ought to have been clearly dispelled by self-proclaimed defenders of Islam.
Addressing the issue of the ISIS’s revival of slavery as ‘Islamic’, Michael Perez writes, “... we must refuse the position that limits our contemporary ethical horizons. To do so, we can take the Prophet’s statements against slavery as our contemporary responsibility... Such a perspective is critical today... Muslims have a role to play in the elaboration of Islam, and push forth a future in which slavery is no longer a question.”
Those who insist on an uncreative mimetic religiosity need to remember what Iqbal had meant when he wrote, “The movers have gone ahead the unmoving ones have been crushed”.
Maryam Sakeenah is a freelance columnist