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Blogging the Qur'an by Ziauddin Sardar- Part 16: Interpreting an Equitable Law for Our Time




By Ziauddin Sardar


March 17, 2008

In practical terms, how does a middle community operate? We have seen the consistent theme of the need to put religion into practice, to make it a way of life that amends the ills of society and that transcends the differences between and within communities. This passage brings us to one of the essential hallmarks of the Qur'an's guidance: that it sets out the norms of social life. What we learn here is that living rightly depends upon operating the law of equity, of fairness, of just and appropriate action and reaction.

Once again we need to keep in mind that the Qur'an is speaking to the problems of Arabian society at the time of the Prophet Muhammad and establishing normative principles for the operation of law throughout time. The test for those who aspire to become a middle community is to distinguish between the circumstantial, that which is specific to a particular time and place and the general principle which will always be applicable but which needs to find the appropriate form to serve the needs of another time and place. In seeking that distinction is the balance that avoids the mere repetition of tradition, which can become fossilised and oppressive.

Arabia during the days of Prophet Muhammad was a tribal society based on the notion that the sons of a clan were brothers who shared the same blood. Internecine war, pillaging and looting of caravans were widespread. Revenge and retaliation were common themes: minor tribal incidents could lead to long, drawn-out feuds between tribes. The "war of Basus" began when a camel accidentally trespassed into the pastures of a neighbouring tribe and lasted for decades. In certain cases, tribes took excessive revenge - when they lost a person of noble descent, for example, they would kill many people, besides the murderer, in retaliation. Captives, both men and women, were mutilated. Famine and scarcity were annual occurrences so certain foods were reserved for men that could not be taken by women. Women were bartered; and daughters were seen as an economic burden leading to the practice of female infanticide.

The realities of tribal society are the particular social circumstances that form the backdrop to these verses. The Qur'an is concerned here, I think, with establishing the boundaries of fairness and equity. The Qur'an insists on absolute and total respect for human life - as emphasised in 5:45, 6:151, 17:33, and 25:68. It is not surprising then that the holy text sees murder, denying or ending someone's life, as a cardinal sin. Murder has to be punished; but there are boundaries within which justice is to be sought.

And so we come to the point raised by Madeleine. Indeed, the very situation and problem she raises has its echoes in Muslim tradition. The first point I would make is the commonalities between different religions evident on this most basic of all questions - the sanctity of human life and the just and equitable response to murder, the most cardinal of sins - is demonstration of exactly the reality and approach the Qur'an required us to be mindful of in earlier passages. Whatever distinctions the Qur'an makes in the specific principles it lays down for Muslims should never blinker us to the common principles to be found in different religious traditions. We do not stand so far apart and separate from each other as chauvinists in any and all religions or ethical systems would sometimes have us believe.

The verse "the free for a free" (178) can, of course, be read literally. And leads down the familiar cul de sac Madeleine identifies. But uncritical literalism, the kind that does not reason with the specific and the universal, would be a gross error. Here, as in so many other places in the Qur'an, knowing the social context in which the verses were revealed and deconstructing the key words used in the verse is crucial. The term generally translated as "retaliation" is "qisas". It includes the idea of equality or just measure - this is why Yusuf Ali translates it as "law of equality" and Mohammad Asad renders it as "just retribution". There are two principles of equality being advocated here. The first is that the law is to be applied equally to all men and women, free or not: the social status of the murderer or the victim makes no difference. The second is that punishment should be equal to the crime.

While the Qur'an speaks generally of "cases of murder", it does offer three specific outcomes: just retribution, compensation and, given its frequent exhortations and overall spirit, forgiveness. Not all murders are premeditated. There may be circumstances that alleviate the guilt: murder could be provoked, it could be a result of temporary rage, or the result of an accident. In which case, compensation may become the just course, and it has to be made in "goodly manner" and with fairness, by taking full account of the situation of the accused.

These verses have moral import and universal implications; we can apply the general principles to our own circumstances. The term "brother" used here to mean the victim's tribal family, could be interpreted to mean society in general. Individual compensation may be financial, as suggested in these verses; but social restitution could be a just prison sentence - penal systems not being much in evidence in medieval Arabia. Indeed, it seems to me the principle of financial compensation is an element worth considerably more thought in our own time. The victim of murder is not only the individual life lost. Their entire family suffers not merely traumatic loss of a loved one but various kinds of economic and social loss as well. The principle of restitution involved in financial compensation acknowledges the needs of the other victims of the crime. The life lost can never be restored, but the victimisation of those left behind can not only be acknowledged but also addressed in practical ways.

The Qur'an would seem to me to be guiding us to think more broadly and profoundly than we normally do. The function of "just retribution" is not revenge but protection of society. And when it comes to punishment, we are not to transgress, not "exceed the limits", but to stay within the boundaries specified by the law of equity. But equity means acknowledging the obligation not just to consider degrees of culpability in the nature of the crime but also obligation to all those victimised by the crime. I would suggest we get so bogged down in the familiar ways the arguments about crime and punishment have come down to us, exactly the hoary old chestnuts of debate Madeleine refers to, that we miss something more obvious. We, the Muslims, are ever ready to say the Qur'an is applicable through all time and circumstances - but we than fail to see how it can always refresh our understanding and way of thinking about problems. We fall into complacency and self-satisfaction instead of continually questioning whether our thinking has gone as far and made real as much as the Qur'an suggests.

The breadth of meaning and application of the law of equity is made clear in the logical progression of this passage. Once again we have an instance of the juxtaposition and conjunction of seemingly dissimilar instances where a common principle applies. We move from "just retribution" to just distribution in the next verses, which deal with inheritance.

The Qur'an asks that a proper will be made in good time - so confusion and feud may not follow after one's death. The will, we learn later, has to have two witnesses (5:106). The end product has to be respected by all concerned and cannot be altered; and the trust discharged with due diligence. However, if the deceased has made a mistake, and a dispute results when someone corrects it, the matter is to be settled by peaceful negotiations.

The emphasis is not just on making a will but also what the will should consist of. The Qur'an is concerned with equity and that means that wealth should not accumulate in fewer and fewer hands; inheritance is a means of distributing wealth throughout society. A reasonable amount has to be left to one's parents and close relatives, particularly those in dire circumstances. The rest is dispersed to one's offspring according to a formula specified in 4:11-12, which is usually read in conjunction with 2:180-182.

Madeleine raises the point that provision for parents is mentioned before all other "close relatives" and it seems to me to highlight a way of reading all the verses dealing with inheritance but most of all of understanding the central principle - the law of equity. It is not merely a case of honouring one's parents, but of recognising that in later life one's parents may have greater difficulty in providing for themselves. The principle of equity seeks to be proportionate to appropriate needs.

In 4:11-12, we read that a son should have the equivalent of two daughters. However, if there are only two daughters, then they should get two-thirds of the inheritance, and if one she should get half of the inheritance. There are other proportions for other members of the family. Let us see what is happening here.

In the Arabia of the Prophet Muhammad, females were not entitled to any inheritance. On the contrary, women were used as property to be bought and sold or owned and inherited and assigned as payment for debts. Inheritance was the sole preserve of those who wielded the sword - boys below puberty, the infirm and the elderly could not inherit either. The Qur'an repeals all this and establishes new rules. It insists that women have a right not just to an inheritance but, by corollary, also to property.

But, as is so often asked -and a vast deal made of the point - why should a daughter only get half as much as a son? The answer has nothing to do with patriarchal attitudes in Arabian society at the time of the prophet or in any society at any time for that matter. The Qur'an is instituting a reform, but one that recognises human and social realities. Paradoxically, in terms of inherited wealth, the system worked in favour of women for a simple reason. When a man married, he took financial responsibility for the whole family as patriarchy and honour demanded - and his inheritance would be spent on all the family, wife and children. But when a woman married, her inherited wealth remained solely her own property; and her husband, or indeed her children, had no rights over it. Or looked at from the other perspective, a woman could expect to become part of a household where her immediate needs would be a claimed from and met by her partner, unlike the social obligations expected of men. But divorce or widowhood are also possibilities women might face, therefore it is equitable that they should have their own independent resources to meet their potential needs.

The proportions set out in the inheritance laws are thus designed to disperse wealth and property throughout society to guard against need. Indeed, the eradication of need is a fundamental principle that recurs throughout the Qur'an, as we have already seen in previous blogs. What we are seeing is the consistency with which general principles inform specific instances: the law of equity begins within the family, with the provision we should make from the wealth and property we own for our nearest and dearest and then expands to embrace the whole of society, the whole of humanity. It is worth noting that distribution of inheritance on the basis of social equity led Al-Khwarizmi, the ninth century Muslim mathematician, to develop algebra.

The need to understand and distinguish the specific circumstances of Arabian society at the time of the Prophet Muhammad was basic to the approach of all the great scholars of Islamic history. Only when the specific and historical was known could one properly identify the general principles, and appreciate the laws of the Qur'an. Times change, circumstances change and what we are required to do, surely, is to work out how the law of equity should apply in our time. It is not only the case that in our time, gender roles are understood in different ways. The very nature of work as paid employment is vastly different, as are the needs of providing a sustainable way of life: therefore the law of equality has to be interpreted in a different way. If both men and women work, and carry equal financial burdens, the law demands that a daughter and a son get equal shares. Failure to admit such change would miss the implication of the idea of balance. A balance is something that shifts to ensure we remain within the boundaries of the law of equity.






An Obligation To Forgive?


By Madeleine Bunting


March 17, 2008

This sounded a bit like the Old Testament edict of an eye for an eye, a tooth for a tooth. It's a much-misquoted biblical commandment and what is often missed is that it was a revolutionary concept of justice for its time, advocating that the scale of the punishment should be commensurate with the crime: a principle that is now firmly established in most legal traditions. Is this a comparable breakthrough in the Islamic tradition? Can you explain how it might work in the case of murder - a female for a female - it sounds rather random. Does this mean a woman is to be killed as punishment? If so, how is such a woman to be selected?

I'm intrigued by the idea of how the culprit can escape punishment if they are forgiven by the wronged. Are you under any kind of Islamic obligation to forgive - and in what circumstances? The Christian emphasis on forgiveness has been problematic for many - "turning the other cheek" - when faced with terrible suffering such as the loss of a child. Routinely, British media coverage of parents whose children have been abducted or murdered, are asked if they forgive the perpetrator of the crime: how does a Muslim view such questions?

Finally, I've often noticed the emphasis in Islam on one's duty to one's parent. Here in verse 180, making a bequest for one's parents is the first instruction when preparing for death. Other dependents such as children are only referred to as "close relatives". And it's interesting that a specific power is given to those implementing the will to ignore the deceased's wishes to ensure this instruction is fulfilled.


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