Islamic Law: An Ever-Evolving Science Under The Light of Divine Revelation and Human Reason -
by Havva G. Guney-Ruebenacker
It is a matter of fact that each era in human history has its own predominant logic and rational that manifests itself in the philosophy, culture, art and law of that era. Islamic law is not an exception. Islamic law is not a sacred nor a mystic science, but a human science that is produced and developed by people and influenced by the predominant culture and the rational of each era in the Islamic history. In this sense, it shares all the characteristics of other human sciences. In other words, the Qur'an is the last word of God to humanity until the end of human history, therefore its text is divine and immutable, while the interpretations of that text are human and subject for a constant change.
No legal system may exist nor survive without a basic philosophy, which feeds its growth and gives that legal system a certain horizon and a direction. All divine messages and books share the same basic philosophy and logic, yet differ in their methods of implementation and application of that essential philosophy to the ever-changing realities of human being.
As the last message of God to all humanity, the Qur'an, like all earlier divine messages, contains, first of all, a set of- what we call in law-basic principles, purposes and policies; and also a basic code of rights and duties. It is important to note that, the Qur'an is not a book of philosophy, science, politics nor a detailed law text. It is a book of faith and spiritual guidance at the first place. Fundamental faith issues, such as the cardinal principle of oneness of God, to believe in angels, all prophets of God, resurrection and the Day of Judgment are the major and the essential part of the Qur'an. Verses that are related to legal issues constitute a very small and minor part of the Qur'an. These highly concentrated legal verses render the Qur'an a condensed Constitution, and not a detailed law book.
The Qur'an deals with legal and social issues at a secondary level and only to the extent necessary to give some guide lines to pursue the higher principles, purposes and policies of divine revelation, called "Maqasid al-Shari'ah," such as protection of human life, human reason, offspring, right to property and freedom of speech. Any interpretation or approach to those Qur'anic verses that disregard the divine wisdom and the ultimate divine goals exist behind those legal rules would automatically become a superficial, rigid and unrealistic interpretation and would fail to serve the progress and prosperity of human being.
Although the ultimate divine goals and policies that are implicitly or explicitly mentioned in the Qur'an do not change, the best means and methods to achieve those goals may change according to the changing social, economic and political circumstances of people. Here comes the indispensable role of ijtihad (independent legal reasoning), a legal mechanism and a legal tool that has been one of the key factors of the development and evolution of Islamic law and Islamic civilization throughout history. The early Muslim jurists painstakingly worked to discover, under the light of the dominant wisdom and culture of their time, the divine wisdom and the rational behind the rules and laws that are mentioned in the Qur'an. They also constantly created legal doctrines, theories and mechanisms that suited the particular conditions of their own time and served the adoption of the divine principles and policies.
The issue of testimony is a good example to illuminate this aspect of Islamic law. Contrary to the common misconception, the testimony of women is not less reliable than the testimony of men in the Qur'an. According to the Qur'an, the criterion in choosing and accepting testimony at the Courts is the "expertise" and the "righteousness", not gender, race and social class of witnesses. In all verses about testimony no reference to gender is made, but only the required number of witnesses for the validity of testimony is mentioned. (5:106 when writing the will; 24:4 to prove the commitment of the crime of adultery; 24:6-9 when one of the mates is the only witness to the crime of adultery of his or her partner.)
"O you who believe! call to witness between you when death draws nigh to one of you, at the time of making the will, two just persons from among you, or two others from among others than you, if you are traveling in the land and the calamity of death befalls you." (5:106)
"And those who accuse honorable women but bring no four witnesses (to support their allegations),- flog them with eighty stripes." (24:4)
"And as for those who accuse their own wives [of adultery], but have no witnesses except themthese [accusers] call God four times to witness that he is indeed telling the truth, and the fifth time, that God's curse be upon him if he is telling a lie. But [as for the wife, all] chastisement shall be averted from her by her calling God four times to witness that he is indeed telling a lie, and the fifth [time], that God's curse be upon her if he is telling the truth." (24:6-9)
[As Muhammad Asad explains in his The Message of the Qur'an, that this procedural rule in case of slander among spouses "leaves the question of guilt legally undecided, both parties are absolved of all the legal consequences otherwise attending upon adultery - resp. an unproven accusation of adultery - the only consequence being a mandatory divorce."]
There is nothing in the first and the second examples that can support the claim as to the superiority of men's testimony on that of women. It is a basic linguistic fact of the Arabic language, and also an accepted premise by all classic scholars of Islam, that when the address is a masculine one, it is considered to be a general address that addresses both men and women, unless otherwise is explicitly mentioned. In the third example, for instance, the equal legal value of their testimony is even explicitly emphasized.
The only verse, in which the gender of witnesses is mentioned as a factor to determine the number of witnesses, is the verse on the issue of debt:
"You who believe, whenever you contract a debt for a stated period, write it down. Let some literate person write [what goes on] between you properly......If the borrower is feeble-minded or incapacitated or cannot manage to dictate himself, then let his guardian dictate it in all fairness, and seek out two witnesses from among your men-folk to act as witnesses. If there are not two men [available], then one man and two women [may serve] as witnesses from anyone you may approve of, so that if either of them should slip up, then the other woman may remind the other." (2:282)
This is different than the other verses that were revealed on the same issue of testimony. While the other verses make no reference to gender as a criterion in choosing witnesses, this verse explicitly states that factor. Why? Is there a contradiction in God's message? Of course not. We should seek the reason of this difference in the subject matter of the occasion that needs testimony. The rational of this difference is actually mentioned in the very verse itself,
"so that if either of them should slip up, then the other woman may remind the other."
This is a conditional phrase for a specific issue, meaning that, if there is a fear that one of the female witnesses may not have the required expertise and qualifications to testify on the issue of debt, then her testimony might be supported by another woman. But if there is no such fear and possibility, then the general rule applies, which is gender neutral. Having taken into consideration all the related verses on the issue of testimony from a larger and a coherent perspective, it is easy to notice that, while all the other verses establish the basic and the general rule of testimony that is applicable in all circumstances, this specific verse gives the exceptional rule that is applicable only in the specific relevant context, provided that the specific conditions of the exceptional rule exist. Otherwise, the general rule would apply.
The reason for this difference between male and female witnesses in this particular issue is neither the "natural deficiency" nor the "mental or moral inferiority" of women to men. Otherwise, the same gender difference should have mentioned in the other verses about testimony as well. It is the nature of this specific issue that makes the difference.
At the time of the revelation, women of that era, save some exceptions, were not actively and extensively involved in economic affairs in their societies. Not to mention the fact that the rate of illiteracy among women was far higher than that of men at that time. Therefore, they lacked the required expertise on economic issues. People also were extremely reluctant to leave their economic relations and transactions to be influenced by women, whose professional abilities on economic affairs were highly doubted. So, instead of a total exclusion of women from giving testimony on economic affairs, the Divine Legislator suggests another way that would not exclude women, on a contrary would encourage their gradual involvement in economic affairs, and also would not disturb the required clarity and accuracy of the economic transactions.
As a result, in case that the expertise of a given female witness in an economic or a financial case is suspected, the exceptional rule applies, so that her testimony does not become invalidated, instead it is corroborated by a second testimony. If there is no such doubt, then the general gender neutral rule of testimony applies.
If the social, economic and cultural circumstances of the society changes, so that the social and educational gap between genders becomes closer, then the Muslim legislative authority may render the general gender neutral rule of testimony the only applicable rule for all cases, regardless the subject matter of the cases, and annul the exceptional rule-- a result that has been the ultimate goal and policy of the Divine Legislator as all the relevant verses on the issue of testimony inevitably indicate. While the general rule of testimony is the most desirable one for progressed societies, the exceptional rule is made for societies, whose social and cultural realities still do not reach the desirable level. The Qur'an enjoins people to adopt the idealist goals and principles of the divine message through realistic, gradual methods and conscious policies that acknowledge the deficiencies of human societies and social realities of people, and also endeavors to find the best means to cure and improve those deficiencies and undesirable realities.
This is one of the unique aspects of the Qur'an. The flexible language of the Qur'anic text makes its rules and principles adoptable in all various cultural and social circumstances, and in all different eras of the evolution of human intellect. A rigid text, obviously, could not be a universal one.
If the general Qur'anic rule was that testimony of women equals that of men, then women should have been commanded, in 24:6-9, to take an oath for eight times, and not only four times like men, to refuse the accusation of adultery made by their spouses. But we know that this is not the case and that the text of the Qur'an is unequivocal about the equality of testimony of men and women in the case of slander.
If the main Qur'anic rules of testimony are based on equality of men and women, then where did the inequality of women's testimony come from? This inequality is based on the opinions of classic scholars of Islamic law, and not on the Qur'an. Under the impact of the widely shared premises of their time about women's mental inferiority to men, our classic scholars generalized the exceptional narrow rule mentioned in 2:282 and wrongly rendered it the default rule for all criminal and civil law cases [1]. Moreover, even though the equal value of men and women's testimony is clearly established in the text of verses on the crime of slander in 24:6-9, classic scholars not only rendered the value of women's testimony to be half that of men, but they also categorically disqualified women from giving any testimony in all major criminal law cases, such as murder, theft and adultery. Obviously, these discriminatory classic opinions would not have survived and implemented without the acceptance of women themselves. There is no recorded objection by women to these legal opinions of classic scholars until the nineteenth-century.
Islamic law is a very sophisticated legal science and it has, like all other legal disciplines, very close ties with all other human sciences such as philosophy, sociology, theology, history and linguistics. Literal and formalistic readings of a sophisticated text such as the Qur'an, cannot penetrate to all existing various layers of this rich divine message and cannot grasp the spirit and the essence of that message. The Qur'anic exegesis that read the text from a shallow and a narrow perspective, and only from the point of view of a particular cultural context or a certain historical period would inevitably become imprisoned within that particular culture and time and would become out of use very soon.
Therefore, the earlier Muslim jurists were receiving a good education about all the other significant human sciences of their time and were constantly creating new doctrines and legal theories in order to adopt the divine law to the changing realities or human life. However, it is undeniable fact that, since most of the jurists have traditionally been men, and those jurists were, in a way or another, were influenced by the predominant culture and logic of their own time, the interpretations of the Qur'anic text have inevitably been a reflection of the male voice and the dominant culture of the pre-modern era. There is nothing wrong with studying and benefiting, to the extent possible, from the painstaking work and heritage of the earlier legal authorities. The common mistake of today's Muslims is to halt the evolution of Islamic law at this point and sanctify Islamic law as a sacred and unchangeable knowledge, forgetting the fact that Islamic law, like any other legal system in the world, is a human science and a product of the human intellect, notwithstanding its divine source of inspiration.
Fortunately, there is an increasing awareness among Muslims to these points. Dr. Muhammad Shahrour, a contemporary Muslim scholar, for instance, has developed a "theory of limits" to be adopted to the Quranic verses on legal issues. It is a very complicated legal theory, which I will refrain from a full explanation here. However, to summarize it briefly, its basic idea is that the legal rules that are mentioned in the Qur'an are, as the Qur'an itself explicitly states, "limits" and the "boundaries" (hudud), which we should not step beyond them. Yet Dr. Shahrour classifies those limits to two categories: the maximum limits and the minimum limits.
Death penalty, for instance, is the maximum possible penalty that could be given to a murderer. This establishes the principle of individuality of penalty and annuls the collective punishment that was practiced in earlier societies. Yet, this does not mean that a less severe punishment cannot be issued. The legislator cannot exceed the maximum limit set up by the Qur'an, yet he may legislate below that limit according to the existing circumstances and the general interest of the society.
As an example of a civil law matter, the share of woman from the inheritance of her parents, which is less than that of her brother under some circumstance, as defined in the Qur'an is the minimum share that can be given to a woman, meaning that any share issued to women should not fall below this minimum limits under any circumstance, yet the legislative authority may determine more for women to the extent that is consistent with the changing economic and social roles and responsibilities of women in a given society.
In result, any human legislation that does not contradict these wide maximum and minimum divine limits set up in the Qur'an would be completely permissible [2].
Throughout Islamic history, Muslim scholars interpreted the Qur'anic verses under the light of the dominant cultural values and concepts of their time and also the socio-economic realities of their societies. Since mental inferiority of women was a generally accepted premise in all over the pre-modern world and women's presence in political, social, economic and intellectual areas of life was relatively less visible than that of men, Qur'anic verses on legal issues were interpreted by our classic scholars under the influence of social realities of women and the widely shared gender premises of the time which were not seriously questioned until the nineteenth-century. Their interpretations worked well for their own circumstances and were sufficient to establish justice within the conceptual framework and world view which shaped the concept of justice in their own culture and in accordance with the roles played by men and women in their own society. It is the task of contemporary Muslim jurists to continue the legacy of classic Muslim scholars and the evolution of Islamic legal system by producing legal theories and principles from the Qur'an under the light of new human values and moral premises widely shared in today's world and in accordance with the higher universal principles of the Qur'anic message and the Prophetic teachings.
Footnotes:
[1] In cases where usually women are present and men are barred either culturally or legally from being present, such as cases of birth, fosterage and examination of virginity of women, some classic scholars regarded the testimony of one woman to be sufficient. This opinion is not indicative of scholars' belief in the principle of equality of women vis-en, but rather is an exceptional rule based on the principle of necessity applied in very few occasions where men due to the nature of the situation cannot be present or rarely are present.
[2] More explanation can be found at Dr. Shahrour's official site, http://www.shahrour.org/, and his book, al-Kitab wa al-Qur'an. Also, a brief explanation in English can be found at http://www.islam21.net/pages/keyissues/key2-10.htm
Mrs. Havva G. Guney-Ruebenacker is an S.J.D candidate at Harvard Law School. Her thesis is a comparative research of theories of legal change in Islamic and western jurisprudence, reviewing the nineteenth-century codification and legal reformation movements in Islamic world, especially in the area of family law and women rights. She studied Islamic law in Saudi Arabia and Iran, and European Law at University of Cambridge. She worked as a researcher at such human rights institutions as the European Court of Human Rights and the International Commission of Jurists. She can be reached at hguney@law.harvard.edu