Law of Islam
By Prof Datuk Dr Zaleha Kamaruddin, the Rector of the International Islamic University Malaysia
Although permitted in the Quran, there are two different views on the practice, men are generally in agreement but most women are not in favour of it.
POLYGAMY remains a controversial issue not only in Malaysia but many Muslim countries around the world. It has been the subject of many debates but is actually far from settled (Latest: newly-formed polygamy club propagated by Ikhwan).
According to a Malaysian anthropologist, Prof Azizah Kassim, whenever the issue of polygamy is debated in Malaysia, the conclusion that can be made is that men are positive while most women abhor it.
Why have such polemics occurred, and what are the causes behind these conflicts, especially in a situation where, despite its legal validity, polygamy has been largely perceived by many as a practice which fails to protect the rights of women?
Writings relating to the legal position of polygamy show that there is an agreement among Muslim jurists (classical and modern) that this practice is permitted in the Quran.
However, during the late 19th century, Sheikh Muhammad Abduh, a reformer who was the Grand Mufti of Egypt, in his Tafsir al-Manar questioned the practice of polygamy in a modern society.
He mentioned that polygamy might have once been useful and practical in early Muslim society but it could no longer be viewed in the same light in today’s society where it has, more often than not, been misused and has caused much pain and suffering among women.
His views are shared by many other jurists and thinkers, such as Rashid Redha, Muham-mad al Ghazali and Azizah al-Hibry.
On the other hand, there have also been writers and jurists who vehemently oppose any form of limitation on a practice which has clearly been permitted in the Quran.
Sheikh Muhammad Shaltut, Abu Zahrah, Aisha Abdul-Rahman, Zainab al-Ghazali, Mustafa al-Siba’i and Sheikh Abul-A’la al-Mawdudi are of the view that those who try to reinterpret the Quran in relation to polygamy are actually going against the very teachings of Islam.
Although there are two different views on polygamy, many Muslim countries today acknowledge the fact that polygamy can be abused, and have made improvements to the laws to curb such exploitation.
In Malaysia, steps have been taken to include the incorporation of specific provisions controlling the practice of polygamy through the Islamic Family Law Enactments of each state.
Latest research conducted by Dr Raihanah Abdullah has shown that the main cause for abuse in relation to polygamy in Malaysia stems from the lack of understanding on the concept and execution of justice. This has led to a prolonged antagonism and has caused various reactions from the public, especially women’s organisations.
The National Council for Women’s Organi-sations says it is not seeking to abolish polygamy, but opposes the way in which polygamy is being practised.
Issues of enforcement including finding better solutions to ensure justice and welfare for the wives and children need to be addressed.
Researchers have shown that one solution to the problems brought about by polygamy would be strict compliance with the conditions of polygamy based on the true teachings of Islam.
It is the absence of such realisation that has led to various difficulties associated with polygamy.
From the legal perspective, in order to rectify the situation, there is a need to consolidate the laws and to formulate a uniform approach to polygamy. Discrepancies in the law have allowed men, as Gavin Jones puts it: “…to ‘shop around’ and find another state where his application will succeed”.
Although the Government has made efforts to achieve uniformity in the laws for all Malaysian states, unfortunately, the aim was not achieved as when it was finally enforced, the states had discretionally amended several matters in the provisions of the law.
Researchers have shown that lighter penalties and limited jurisdiction between states also contribute to the inability to put a stop to the contravention of these laws.
The imposition of a minimum fine of RM1,000 and mandatory imprisonment ranging from as short as one month to a year should be imposed on offenders.
However, this view has also been objected to. It is argued that mandatory imprisonment would not solve the problem but instead aggravate it, as these men would not be able to maintain their families while serving prison time.
Aside from that, a more detailed review in deciding polygamy applications should also be made.
Judges should also play a more proactive role in ensuring that an applicant is truly capable of being fair before allowing his application. The views of existing wives should also be taken into consideration.
Besides educating the existing wife on her rights in a polygamous union, she should also be facilitated in making claims for maintenance against her husband should he fail to provide for her.
This should be done without the wife having to file an application for maintenance but be ordered by the judge during her husband’s application for polygamy.
A review of the law on the amount of maintenance – which had been abolished earlier – should be reintroduced.
There should also be provisions to prohibit husbands from changing the economic status of the existing wife and children.
There is also a need to expedite enforcement of other rights as well, such as claims for jointly acquired property.
It would be extremely unfair for the wife, who has worked equally hard as her husband, to suddenly share not only her husband, but also their property, with another woman.
These proposals are being looked into by the relevant authorities and some have been included among the amendments to the Islamic Family Law Bill said to be soon tabled in Parliament.
However, one should remember that the law has limitations, especially in matters relating to the heart.
Islam is a religion established by reason and evidence, and the supreme bases of its teachings are the Quran and the Sunnah. Islam does not exist without reason, and any utterance beyond reason is unworthy of association with it. Islam is the religion of Allah the Creator, the Omniscient. It is therefore impossible to find in its teachings anything that opposes truth, evidence and fact. If an opinion produced in the name of Islam fails the test of reason and evidence established in the Quran and Sunnah, then such an opinion cannot be said to derive from the teachings of Islam even though the one who makes that opinion assumes a religious title or dresses in a manner that reflects piety.
Similarly, any view must be excluded from Islam if it contradicts demonstrable truth or scientific certainty, or if it is prejudicial to the good of common humanity. A prominent scholar of Islam, al-Imam Ibn Qayyim al-Jauziyyah (d. 751H), said:
Indeed for the shariah of Islam, its construction and foundations are built on all wisdom and goodness for humanity in this world and the Hereafter. The shariah of Islam is all about justice, goodness and wisdom. Therefore, if any aspect that departs from justice into vindictiveness, from blessing into curse, from goodness into evil, from wisdom into foolishness, then it is not from the shariah of Islam even though it is interpreted as such. (I’lam al-Muwaqqi’in, Beirut: Dar al-Jail, 3/3.)
Facts not Personalities
Whichever observation about Islam that conflicts with the Quran and Sunnah, or which contradicts the fundamentals of human welfare established by shariah must be rejected without consideration of who makes that observation. Therefore, the opinions of even a mufti, a respected teacher or an ustaz or maulana (religious teacher) can be accepted or rejected on this basis.
The opinion of any individual —even the most respected Islamic scholar— may be questioned if it does not concur with evidence provided in the Quran and Sunnah. No one is maksum (infallible) other than the Prophets of Allah. The religious opinions of the esteemed, or of an ustaz, should not be swallowed without proper chewing. Allah proclaims in Surah al-Isra, verse 36:
“And pursue not that of which you have no knowledge; for every act of hearing, or of seeing or of (feeling in) the heart will be enquired into (on the Day of Reckoning).”
Imam al-Shatibi (d. 790H) said:
Thus, it is compulsory for us to follow the one that was guarded from making mistakes (that is, the Prophet Muhammad pbuh) and to stop from following whoever is not being shielded from mistakes whenever there may be doubt. Moreover, we should consider whatever comes from all imams (scholars) side by side with the Quran and the Sunnah. Whatsoever is accepted by both (Quran and Sunnah), we consequently accept, and whatsoever is rejected by both we consequently abandon. (Al-I’tisam, Beirut: Dar al-Kitab al-Arabi, p. 165.)
Respect and the observation of good manners when dealing with ulama (the Muslim clergy) are commanded by the nas (Scripture) of Islam, but this has never stopped a person presenting intelligent criticisms, or prevented his questioning the opinions of ulama, even though he maintains the disciplines of religion. This is a principle of truth that has long been practised by all established Muslim scholars.
Consider al-Hafizd al-Zahabi (d. 748H), the celebrated historian and biographer of distinguished members of the mediaeval Muslim community. In one of these biographies, Imam al-Zahabi praised the great scholar Waki’ Ibn al-Jarrah thus: “He was between the sea of knowledge and the imams (scholars) of huffaz (hadith).” Later, Al-Zahabi recorded the words of Yahya bin Aktham: “I befriended Waki’ at his home and also when he travelled. He fasted al-dahr (every day) and finished reciting the Quran in one night.”
Al-Zahabi commented on Waki’s achievements thus:
This is an amazing ibadah (act of worship) but for it to be practised by an imam (scholar) amongst the imams of hadith, then that is not normal. Indeed it was sahih (authentic) that the Prophet pbuh prohibited daily fasting and reciting the Quran (until completion) in fewer than three days. The religion is simple. Adhering to the Sunnah is more imperative. May Allah bless Waki’. Where can we find an individual as great as he? Nevertheless, he frequently drank nabiz (date wine) that could be intoxicating if consumed a lot. He made his own judgment with regards to drinking it (he does not consider it as prohibited so long as it does not intoxicate). Should he forsake it (the drink) on the ground of devoutness, that would be much better for him. This is because whoever avoids elements of doubt, thus his religion and dignity will be saved.
Indeed, it is sahih that nabiz is forbidden and prohibited, but this is not the place to deliberate it. For every person, each of his opinions can be accepted or abandoned (except for the Prophet pbuh). Take not as an example the wrong deeds of an alim (knowledgeable person). (Siyar A’lam al-Nubala, Beirut: Muassasah al-Risalah, 9/142-144.)
Waki’ was an established ulama, but an academic fault must be acknowledged as such and judged accordingly. It is clear that, while we are enjoined to respect others, especially religious teachers, respect should not impede our speaking the truth while always maintaining the discipline and manners taught by Islam.
Reject Unproven Views
I discuss this subject because there those in our community who will not dare question those regarded as ustaz, even though what an ustaz claims may be utterly groundless. It is as if such an ustaz has somehow obtained an infallible licence to say anything in the name of religion without presenting reason or evidence. Worse, some religious teachers in the old days warned their students that “whoever asks a lot of questions shows that his faith is weak.”
It is unsurprising, therefore, that some states in Malaysia have issued a number of strange fatwa, such as prohibiting the sale cows to Chinese, or that budu (pickled fish) is impure when spilled on clothing but is pure when consumed. However odd these edicts might be, no one has dared question the grounds on which these fatwa were issued for fear of being labelled “weak in faith”.
There is a religious speaker who goes about our country saying that, according to Islam, the remedy for AIDS is 100 lashes of a cane on one’s back. He claims that this is a genuine “cure” based on the teachings of Islam and is derived from research based on both the Quran and science. One wonders which scientist gave him that information; but on the strength of this claim alone, the speaker has received a number of invitations to provide religious enlightenment in a similar vein—and there are those who have received him well. I wish to pose some questions: since not all those with AIDS have been involved in immoral sexual activities, is it therefore “right” to whip everyone? Is having AIDS sufficient justification in the eyes of the shariah to subject a person to 100 lashes? Such ideas are clearly mistaken; but unfortunately there are mosques, even in Kuala Lumpur, that extend speaking invitations to those who champion such views. I am perplexed when I come upon people who are seemingly highly educated and trained to make best use of their minds—but when confronted by matters of religion, they prefer to abandon their education in favour of a silence that makes it seem as if Islam opposes logic and the intellect.
There was another religious speaker who claimed that he buried the body of a rich man, which later transformed into a supernatural entity without anyone knowing a thing. What is fascinating is that in a country based on the rule and application of law, no one looked into the matter of a missing person until the one who buried him told this astonishing story. Whatever the case, the story involved a celebrity and this in turn affected the religious beliefs of many. It was a baseless claim that should not have been made, but unfortunately there were many who believed it.
We have also heard about a certain individual who declared another an apostate; and later did the same thing to the students of a college on no greater merit than some news reports, the truth of which could not be ascertained. An allegation of apostasy—if it is at all true—is very serious and requires careful scrutiny, that is, iqamah al-hujjah (the construction of proof). Apostasy cannot be declared haphazardly, but there were many who accepted these allegations without further thought and in the name of religion, and regrettably the allegations were made by one learned in religion.This attitude extends even to matter of sin.
In some Malaysian states there are religious groups that impose various types of “taxes” on bereaved families, and sometimes these taxes amount to thousands of ringgit. Many rituals associated with the religion are performed and the corresponding bills will then be charged to families of the deceased. For this reason some grin widely upon hearing news of death, and even recitations and forms of solat (prayer) that were not taught by the Prophet pbuh are included in the list of costs incurred. The community dares not ask if religion is really so cruel that even distressed families deserving of support should be burdened further by these “costs”. Or is Islam so materialistically driven that only those with the largest purses can be assured of the absolution of sin and the attainment of reward in the Hereafter? If this is the case, then the Gates of Heaven will open only for those with the means to pay these “agents of Allah” here and now on this transitory earth. Does this truly represent the beauty of Islam that commands believers to perform good deeds and not depend on others?
My point is that it is the community’s right to ask questions in any discussion of religion. Neither an ustaz nor a respected teacher is God’s appointed agent, unlike the Prophets of Allah, such that their declarations are binding even if they lack nas. Islam is not man’s ultimate justification to do as he pleases—it is, instead, a religion built on reason and evidence. If each of us asks the ustaz for the causes of and reasons behind every one of his religious opinions, then we should, by doing so, help realise the principles of Islam and thus improve intellectual discussion in our own community.
We must guard against the complacent satisfaction of merely memorising religious opinions without thinking about them analytically and rationally. One of the foremost scholars of our own times, Prof Muhammad Qutb, said:
From another point of view, Islamic scholarship is bound to the way it was studied around five centuries ago. There was (then) the influence of Greek thought from ilm al-kalam (Scholastic theology) that was futile and unrewarding. More than that, the speculative excesses of ilm al-kalam diverted the study of faith towards matters that overloaded the mind to no purpose. It took the concept of faith away from that which provides the essence of life, and turned it towards mere philosophical disputation without direction or benefit. Religious students devolved from thinkers into mere memorisers: a student could appear learned simply on the strength of how many texts, lectures and footnotes he managed to memorise. However, he could not think for himself or even think independently. Consequently, the authenticity of knowledge was lost to the ulama and they turned to taklid and simply quoted from others. Scholarship was impaired further by a third factor, namely the obsessive devotion towards a certain mazhab, which affected all students. Everyone fixated on the mazhab that he grew up in. He turned his ultimate religious duty into an effort to prove that his mazhab and sheikh (teacher) were superior to any other…” (Waqi’una al-Mu’asir, p. 176.)
The practice of blind taklid was never taught by any imam of the Ahl al-Sunnah wa’l-Jamā‘ah (the Sunni community as a whole). On the contrary, imams have demanded that each person must strive to build his or her own intellectual ability. We read the following mentioned by a student of Imam al-Shafi’i, Imam al-Muzani (d. 264H):
“I have summarised all of this from the knowledge of al-Imam al-Shafi’i and from the meaning of what he taught in order to impart it to whoever wants it, along with notice of his prohibition of taklid (of his opinions) or of those of others, so that the reader will himself consider the evidence for the sake of his religion, and so as to be the more circumspect about it”. (Waliyy Allah al-Dahlawi, Al-Insaf fi Bayan Asbab al-Ikhtilaf, p. 100.)
If this form of learning should flourish, Islam will no longer be considered exclusivist such that only a privileged few may reflect upon it while the rest must follow blindly. Indeed, we are commanded to respect rigorous study and never to accept blind taklid. The development of the Muslim community will not take place as long as the intellectual competence of our religious leaders fails to meet the academic standards of an increasingly competitive world. The Muslim community must rally to support the advancement of tajdid (revitalisation) that began decades ago and which is still in progress.
Source : http://drmaza.com/home/?p=1855
That they may witness benefits for themselves and mention the name of Allah on known days over what He has provided for them of [sacrificial] animals. So eat of them and feed the miserable and poor. (translation Quran 22/28)
Their meat will not reach Allah , nor will their blood, but what reaches Him is piety from you. Thus have We subjected them to you that you may glorify Allah for that [to] which He has guided you; and give good tidings to the doers of good. (translation Quran 22/37)
Islam’s general approach to children may be summarized in a few principles: First, it is a divine injunction that no child may become the cause of harm to the parents (Al-Baqarah 2:233). Secondly, by implication the parents should reciprocate and cause the child no harm either. The Qur’an recognizes very clearly that parents are not always immune from over protectiveness or negligence. On the basis of this recognition, it has, thirdly, established certain guidelines and pointed out certain facts with respect to children. It points out that children are joys of life as well as sources of pride, seeds of vanity and false security, fountains of distress and temptation. But it hastens to stress the greater joys of the spirit and caution parents against overconfidence, false pride, or misdeeds that might be caused by children.
The religious moral principle of this position is that every individual, parent or child, relates to God directly and is independently responsible for his deeds. No child can absolve the parent on the Day of Judgment. Nor can a parent intercede on behalf of his child. Finally, Islam is strongly sensitive to the crucial dependence of the child on the parents. Their decisive role in forming the child’s personality is clearly recognized in Islam.
In a very suggestive statement, the Prophet declared that every child is born into the true malleable nature of faith (i.e., the pure natural state of Islam), its parents later on make it into a Jew, Christian or pagan.
According to these guidelines, and more specifically, one of the most inalienable rights of the child in Islam is the right to life and equal life chances. Preservation of the child’s life is the third commandment in Islam.
Another equally inalienable right is the right of legitimacy, which holds that every child shall have a father, and one father only. A third set of rights comes under socialization, upbringing, and general care. To take good care of children is one of the most commendable deeds in Islam. The Prophet (peace and blessings be upon him) was fond of children and he expressed his conviction that his Muslim community would be noted among other communities for its kindness to children.
It is charity of a higher order to attend to their spiritual welfare, educational needs, and general well-being. Interest in and responsibility for the child’s welfare are questions of first priority. According to the Prophet’s instructions, by the seventh day the child should be given a good, pleasant name and its head should be shaved, along with all the other hygienic measures required for healthy growing.
Responsibility for and compassion toward the child is a matter of religious importance as well as social concern. Whether the parents are alive or deceased, present or absent, known or unknown, the child is to provided with optimum care. Whenever there are executers or relatives close enough to be held responsible for the child’s welfare, they shall be directed to discharge this duty. But if there is no next of kin, care for the child becomes a joint responsibility of the entire Muslim community, designated officials and commoners alike.
Dr. Hammudah Abdalati graduated from al-Azhar Universiy of Egypt. He received an M.A. in Islamic Studies from McGill University and a Ph. D. in Sociology from Princeton University. In 1958 he joined the Department of Islamic Culture at al-Azhar. He was appointed in 1960 the first full-time director of the Canadian Islamic Center of Edmonton, Aberta. From 1967 till he passed away in September 1976, Dr. Abdalati was Associate Professor of Sociology at Utica College of Syracuse University.
Source : OnIslam