Substance over form, intent over law


  • Nation
  • Wednesday, 20 Aug 2014

Upholding the intent of God’s law should be the common ground of a modern and diverse Muslim ummah, says Imam Feisal in Part 2 of his reply to a father whose daughter decided to uncover her head just before her university graduation.

In the Quran, God says, “…let them draw their head-coverings over their cleavages” (24:31). These head-coverings, or khumur (the plural of khimar), refer to the head-coverings customarily used by Arab women before and after the advent of Islam. Even men wore them for protection in the hot desert sun. Women also typically wore tunics with a wide opening in the front that left the breasts exposed.

With this understanding, the injunction to cover the cleavage with a khimar does not refer to the compulsory use of a khimar as a head-covering, but rather is only meant to specify that a woman’s cleavage is not included in the definition of “what may (decently) be apparent.”

The word for “cleavage” is juyub, the plural of jayb, often translated as “cleavage.” Jayb literally means “pocket.” Women traditionally “pocketed” money and other small items in their cleavage, which prosperous Meccan women, like their Western 18th and 19th century counterparts, used to accentuate. This injunction therefore cautions against exposure that might put them at risk of harm. 

From the hadith and other historic sources, we learn that it was normative at the Prophet’s time for upper-class women not to breastfeed their own children. They hired Bedouin wet nurses or called upon their slave women for this task. It was normative for these working women to expose their head and neck, their arms below the elbows, their legs below the knees while performing their work, and their breasts while breastfeeding, which was done in public as well.

There are several hadith where the Prophet sees a woman breastfeeding, and his silence (sunna taqririyya, or tacit consent) indicates that he deemed public breastfeeding acceptable.

Furthermore, because slave women frequently went bareheaded in public, scholars held that they could pray bareheaded as well. In fact, all the madhhabs unanimously agreed that a slave woman’s prayer with her head uncovered was valid. Because the requirements of salah are not different for free believers and for slaves, some Muslim scholars conclude that covering the head cannot be a requirement for any woman of any class in order for her prayer to be valid.

These reasons form the basis of the third and fourth juridical positions. They are also the basis for why a woman is not required to cover her head, either in public or in prayer.

Unless we know that these injunctions were tailored to the social customs at the time of the Prophet, we are likely to be confused as to what is correct and as to why there are differences of opinion on how women should dress.

What makes the analysis of `awrah particularly tricky is that the social customs of the Prophet’s time became part of that society’s religious practice. For example, because it was culturally common to cover their heads in the desert climate of Arabia, most women – as well as men – covered their heads during prayer. Such social customs became normative to the Prophet’s followers, their successors, and new believers who joined the community. If it were not compulsory for men to uncover their heads when performing the `umra or haj pilgrimage, most contemporary Muslim men would probably regard men’s head-coverings as a requirement!

In effect, a cultural norm solidified into a religious norm, even though Syariah does not specifically prescribe head coverings and even though scholars held different opinions on whether it was legally necessary.

The social customs and cultural norms of a given society, called `urf or `adah in Islamic jurisprudence, form one of the subsidiary sources of law. Muslim jurists deemed the local customs to be shar’i, meaning they are compliant with Shariah and have the force of law. You may recognise that `adah entered the Malay lexicon as adat. Adat Melayu, together with the Quran, Sunnah, and the decree of the Sultan at one time comprised all the laws binding on Malays.

Classical scholars acknowledge that when it comes to matters of hair, facial hair for men, and dress code, the `adah of a particular culture takes precedence and should be followed. For example, in the West, men would be deemed unsightly or even inappropriate wearing red, green, or purple suits to a formal function. In Malaysia, however, men’s Baju Melayu at formal functions and at Friday jum`ah prayers span the full colours of the rainbow! And though a man’s prayer is valid with only the area between his navel and knees covered, you will never see, in any mosque, a man pray with his upper torso exposed (except pilgrims wearing their ihram in Mecca and Medina) because most cultures deem exposing the upper torso improper.

Given this example, and given the agreement among the madhhabs that a slave woman’s prayer was valid with her head uncovered, we see that as a rule, the requirements for dress in public are more conservative than the requirements for prayer to be valid, for men and for women. However, cultural norms of what is socially acceptable have complicated our understanding of what is actually required by Shariah.

It is important then to distinguish between `adah and Syariah (meaning just the Quran and Sunnah): A practice based on local custom, during or after the Prophet’s time, may be regarded as compliant with Syariah, but the practice is not necessarily part of Syariah. Local customs at the time of the Prophet and laws enacted after the Prophet’s death are not equal to the imperatives of the Quran and Sunnah.

The problem is that `adah at the time of the Prophet was – over time – considered to be Syariah itself.

But `adah can change, from culture to culture, from era to era, in a way that complies with the Syariah. The 14th-century jurist Ibn al-Qayyim al-Jawziyyah said, “Legal interpretation should change with the change in times, places, conditions, intentions and customs.” Practices based on the `adah of the Prophet’s time, such as the dress code, may change when the `adah changes. 

If we understand the `adah of a time and place, we can re-interpret certain Quranic verses and apply the law properly. For example, the Quran tells us to prepare “…whatever force, including horses, that you are able to muster” in order to protect our communities (8:60). Does that mean that today Muslims have to maintain cavalries of horses to enhance their national security?

Horses suited the security needs of the Prophet’s society and reflected the means available at that time, but horses would be entirely inappropriate defences for today’s societies! Today we use fighter jets and modern weaponry, just as we use cars and planes, instead of camels, to make the pilgrimage to Mecca, even though this violates the Prophet’s Sunnah in how he travelled on his pilgrimage.

We apply such injunctions in a way that suits our modern age. How then do we apply the directives on women’s dress in a way that is appropriate for modern cultures, which have varying customs, rapidly changing fashions, and different definitions of modesty – cultures where dress codes are not dictated by class distinctions and where women of all levels of society value work?

In my articles for The Star, I tried to emphasise that we should always return to Divine Intent in order to understand the Quran and the Prophet’s teachings as our societies change.

Intent is and always has been the starting point and guiding star in applying the law. The first hadith reported in al-Bukhari’s Sahih, "All actions are judged by intention," underscores both God’s intention in giving commandments and humankind’s intention in fulfilling them – so much that Imam al-Shafii declared, “In this hadith is half of all wisdom.”

The intent, or objective of the law, is defined as the reason or operative cause (`illah) of a law. As in other legal systems, one must understand the intent in order to properly apply the laws. The intent of the law must always be honoured, especially if expressly stated in the Quran, even if it means violating the letter of the law.

For example, the requirement that we arm ourselves with horses is intended to protect national security. Maintaining a horse cavalry now, in an age when the rest of the world uses modern weaponry, would jeopardise our ability to fulfil God’s intent. In this case, we are obligated to violate the letter of the law in order to fulfil the intent.

Regarding matters of dress, Syariah does not address the precise amount of bodily exposure allowed, but it does expressly state the intent of its injunctions, which is to be “conducive to their (women’s) being recognised (respected) and not harassed” (33:59). The word “harassed” here also refers to being bothered, annoyed, or threatened. The intent of law is therefore to protect women’s safety and chastity, and to prevent disrespectful treatment.

Upholding this intent is why some Muslim scholars assert that wearing the hijab can, in certain circumstances, violate God’s intent. In some places in France, England, or the United States, Muslim women who wear the hijab have been subjected to harassment and attack. In such situations, what would better fulfil God’s intent - insisting on wearing the hijab, or not wearing the hijab?

After all, those who attack Muslim women because of anti-Muslim sentiment can pose an even greater threat to their safety than flirtatious men.

There is also no imperative to cover when the operative cause of a law is removed: God says that women advanced in years “… incur no sin if they discard their garments, provided they do not aim at a showy display of charms” (24:60). Bodily exposure is not inherently objectionable; rather, the context and intent matter.  Modesty in dress is required only if bodily exposure poses a temptation and a risk. Above all, Syariah discourages bold sexual approaches and deliberately provocative behaviour.

A woman could therefore violate the intent of Syariah, regardless of whether she is wearing a headscarf, a hijab, or a niqab, by engaging in immodest or risky behaviour in her interactions with others, in public or in private.

This teaches us that there is room for your opinion and your daughter’s opinion - in fact, the Prophet deems this a blessing! – as long as you and your daughter uphold the underlying intent of Syariah.

Furthermore, by continuing to provide for her needs despite this disagreement, you and your wife have protected her well-being and safety, thereby upholding this intent. By the same token, your daughter’s attitude and behaviour can be a greater measure of her compliance with this intent – of her self-respect, modesty, and faith - than a headscarf might be.

Upholding the intent of God’s law is your family’s common ground, and this should be the common ground of our modern and diverse Muslim ummah. On this common ground we can regain the space to welcome, respect and embrace differences of opinion for what they are – a blessing.

Shouldn’t we then agree that there's more than one way to be correct? 

> Imam Feisal of the New York-based Cordoba Initiative welcomes readers’ feedback. Please write to imamfeisal@thestar.com.my.

> The views expressed here are entirely the writer’s own.
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