By Adis Duderija, New Age Islam
(Shortened version of an academic article to be published in an academic journal in the near future)- References removed.
When engaging in the process of developing Qur’anic hermeneutic and Islamic legal theory (usul ul- fiqh) and, generations upon generations of Islamic legal theoreticians (usulliyyun) have primarily concerned themselves with the questions of what the Qur’an has to say on a particular issue or theme but not what the Qur’an tacitly assumes to be normative as understood by its direct audience and as evident in the Qur’an’s content. Furthermore, Islamic legal theorists did not fully recognise the interpretational implications of the Qur’anic pre-suppositions present in its discourse.
In this article I argue that the development of any Islamic legal theory must recognize that, firstly, the Qur’an does not provide a systematic, ahistorical and comprehensive system of universal ethics that can be simply retrieved or discovered but that some principles of universalist ethics/morality can be deduced or derived based upon the Qur’an’s ‘comprehensive contextualisation’ and a view that Islamic law and its philosophy is essentially purposive in nature. By comprehensive contextualization I mean investigating, in a methodical manner, the role of context in shaping of the very content of the Qur’an and its worldview. For this to take place we need to recognize the Qur’an’s orientation towards the assumed operational discourse of its revelational context that manifests itself in the Qur’anic content and is reflected in the grammatical and syntactical structures employed in the Qur’an’s language. This Qur’anically assumed operational discourse must be seen as often reflecting the prevalent religious, cultural, social, political and economic situation of its direct audience, its community of listeners and participants upon which a dialogical nature of the Qur’an’s discourse is premised.
At the outset it is to be acknowledged that some modern Muslim and non Muslim scholars have alluded to what Qur’an assumes to be normative by its direct recipients when developing their models of Qur’anic interpretation and/or Islamic legal theory. For example, Moosa maintains that the Qur’an without its’ direct recipient audience would cease to be the Qur’an. Achrati elsewhere argues that the oral –based culture of the Arab beduins strongly influenced the character and the nature of the Qur’anic discourse. Similarly Abu Zayd considers that the Qur’anic discourse reflects the dialectical relationship between the Qur’an and the reality of the early Muslim community. Soroush goes even further by asserting that the experiential, evolutionary and dialogical nature of the prophetic experience had a very significant impact on the nature and the content of the revelation itself. Neuwirth has similarly noted, the social concerns and theological questions of the Qur’ans first listeners permeate the Qur’an and are reflected in its content. Halverson concurs with this by stating that the Qur’an not only addresses its first audience in the particular language that they spoke but also the world in which they lived.
This dialectical nature of the Qur’an in turn is based upon its essential orality and has important hermeneutical implications to which we turn now.
Qur’anic textual assumptions and their hermeneutical implications
As we shall see below manifestations of Qur’anic assumptions are evident in its usage (to its direct audiences) of familiar concepts (e.g. sunna, Allah, ), peoples stories/people (e.g. story of various Prophet’s such as Lut, Noah, Abraham etc ), beliefs (angels, scriptures, etc.), ethical terms ( e.g. ma’ruf, sharr, hasan ) and the use of particular words/phrases / grammatical/ philological constructs( e.g. the primary Qur’anic addressees are assumed to be male, hence , the believers are primarily addressed as mu’minun, i.e. second person plural male). The reason for this is aptly summarized by Halverson who in this context asserts:
The Qur’an employs a set of existing religious ideas, themes, and concepts, or what some scholars refer to as an existing body of “religious knowledge,” while simultaneously extracting and modifying certain elements necessary to successfully transfer these characters and traditional narratives into the service of the text and reinforce its fundamental precepts (e.g., al-tawhid).
In order to make a better sense of these assumptions we shall categories them into two groups, namely socio-cultural and ethico-moral.
Socio-Cultural Suppositions-The case of Patriarchy
One of the most evident assumptions evident in a majority of the passages in the Qur’an is the existence of an all-embracing patriarchy existing in its historically revelatory milieu. Husband’s right to unilateral dissolution of marriage, known as talaq, is one aspect of this patriarchal milieu.
At the philological level this patriarchal revelational context is evident in the Qur’anic injunctions which are exclusively directed at men in matters pertaining to divorce and marriage. For example, Qur’an (65: 1-2) instructs the Prophet that if the men divorce their women ( tallaqtumu nisa’ )they should allow women to reside in their marital home during their ‘idda (waiting period).and then instructs men to keep or stay with their wives in dignity or you divorce them in kindness and dignity.” In the pre-modern Qur’anic commentary (tafsir) literature that I consulted (Suyuti, Ibn Abbas, Al Qurtubi, At –Tabari, Al -Zamakhshari , Ibn Kathir, and Al-Wahidi) on this verse it is evident that all of the exegetes (mufassirun) considered that the unilateral right of men to divorce their wives was a ‘pre-given’ and ‘natural’ order of things and did not problematise it at all. Instead they either focused on the discussions surrounding the ‘idda and/or proper wife’s treatment during this time and provided the circumstance for the revelation of the verse (eg. Prophet’s divorcing of Hafza or Abd Allah Ibn Umar divorcing his wife when she had menses).
Qur’an (2:230) stipulates that if a man divorces a woman (fa inn tallaq-ha) irrevocably, a man cannot remarry her until she is married to another. Again as in the case of tafsir of 65:1 the same pre modern exegetes who this verse simply assume the validity of unilateral talaq being the sole prerogative of men and clarify that in this case that fa inna tallaqa-ha means the third divorce after which the husband cannot re-marry the same woman prior to her marrying another man and having sexual intercourse with him and waiting for the ‘idda period to be completed. Some also document the occasions (asbab) of the revelation about a woman who was divorced by her husband and married another man and wished to return to her first previous husband.
Again, in 33:49 the male believers are told that if they married believing women and then divorced them (tallaqtumuhunna) before touching them, they do not need to count the ‘idda. As far as tafsir goes the same analysis applies to this verse as in the case of 65:1 and 2:230 above . Namely, the assumption of husband’s unilateral right to divorce is assumed.
Similarly, in 2:236 men (masculine second person plural-tallaqtumu Nisa’) are, in case of divorcing women before consummating marriage, told to bestow gifts upon them.
It seems that, at least in these instances, decisions pertaining to both men and women in relation to divorce and related matters have been surrendered entirely to men and that women play only a derivative and non-autonomous role.
The famous qawwama (4:34) and its ‘sister’ verse (2:228) verse which bestows upon men a qualified degree (darajat) over women based on the male’s socially privileged role of breadwinners including the right to physically punish (daraba) recalcitrant (nushuz) women can be considered as another aspect of the patriarchal revelational milieu mirrored in the Qur’an at the level of socio-cultural rights/rules. The same would also apply to the inheritance verses in Surat -ul-Nisa’ which stipulate unequal shares /proportions to men and women (in favour of men) or the tribal practice of taking the women and children of defeated tribes as spoils of war that is indirectly referred to in the Qur’an and was the practice at the time of the Prophet.
What I wish to highlight for the purposes of the present article is that all of the above examples pre-suppose the existence of a social and cultural order which confers the right to entering into marriage [contract], divorce, physical punishment, disciplining and even possession of women (as in case of slavery- as shall be demonstrated below) solely to men, the reality of which is assumed, acknowledged and addressed by the Qur’an. However, does this necessarily mean that Qur’an endorses the same powers to men or does it attempt to mitigate and limit them?
If we examine carefully the above stated verses pertaining to divorce or marriage matters in general, as El-Fadl astutely observes, they all were performing the function of ”protecting women from the power of men [they] already possess[ed] by the virtue of the customs and practices of the society in which Islam was revealed.” Abu Zayd furthermore argues , that based on the semantical and historical analyses of this verse it would be safe to assert that this Qur’anic injunction’s primary aim is to limit the rights of men that existed in the patriarchal and tribal-based social, economic, cultural and political reality of the Qur’anic revelational milieu, rather than stipulate absolute inheritance portions. Additionally, argues El-Fadl the Qur’anic verses 65:6 and 2:229 could be used to argue for this mitigating effect of Qur’anic injunctions. The same mitigating effect applies to the concept of sunna. But is this mitigating process an end in itself or just a means to a more just end?
If this principle of the Qur’anic textual assumption of certain patriarchal practices prevalent in its milieu and their subsequent mitigation on the basis of other relevant Qur’anic verses was recognised as a hermeneutical tool on the basis of which a moral trajectory could be extrapolated this would contribute towards the development of an ethico-religious values and purposive based Qur’anic hermeneutic. This is exactly what Abu Zayd argues when suggesting that all the legal injunctions in the Qur’an are to be hermeneutically interpreted so that they are in accordance with the hermeneutically most powerful Qur’anic value of justice.
However, this concept of a moral trajectory was not used as a hermeneutical tool of highest order by the majority classical Islamic interpreters of the Qur’an and legal theorists because the interpretational or hermeneutical implications of these presuppositions embedded within the Qur’anic text were not fully acknowledged and applied hermeneutically. However, as perceptively recognised by a young Tunisian thinker Shaykh Al Tahir Al Haddad (1901-1935) “there is no textual evidence or proof that suggests that what had gradually been achieved in the life of the prophet , is the final goal after which there is no further purpose ; as long as those matters that are connected with gradualism continue to present difficulties then it is appropriate to eliminate such hardship.”
One of the reasons for this hermeneutical ‘failure’ of classical Islamic scholarship forms the subject matter of this very article, namely the shift from a dialogical, symbiotic and ethico-religious and purposive nature of early Qur’an –Sunna hermeneutic to that of its sunna-hadith episteme. This resulted in a formulation and subsequent canonisation of a legal and socio-cultural tradition based primarily on a hadith-based Qur’an-Sunna hermeneutic which contained several misogynist and gender discriminative practices clearly disadvantaging Muslim women.
Ethical/moral assumptions – the case of free individuals vs. slaves’ social stratification
Although slavery is a social ill, its repugnance is certainly moral in nature. The existence of slavery (including female sex slavery and female concubinage) is another socio-cultural reality that Qur’an assumes as a culturally accepted as evident in for example in Sura' An-Nisa’.
In the pre-Qur’anic Arabia it was a common practice that masters ( almost exclusively male) would force their ( female) concubines into prostitution and would not set them free if they (i.e. the concubines) wanted to get married in order to live more ‘honourable’ lives. Qur’an‘s attitude towards this ill was to make moral appeals to slave owners [exclusively men e.g. 4:25] in order to limit these abuses and alleviate/mitigate their unfavourable/miserable conditions. Acknowledging the different mentality and conditions under which slaves were brought up and having lived, a different set of punishments were instituted by the Qur’an (4:25) in addition to a different set of social and behavioural norms. Indeed, the entire edifice of the subsequent Islamic Law and its legal theory was based on the notion of what Azam terms “differentiated and hierarchical ethico –moral and legal subjectivity” with the free Muslim man at the top and the slave woman at the bottom.
It is commonly known that the practice of setting free of slaves was one way in which Qur’an sanctions the expiration of one’s sins. Furthermore, one of the Qur’an’s consistent features is the highlighting the importance of kind and gentle treatment of slaves. Moreover, Prophet’s example/ instructions as to the proper conduct when dealing with slaves was in complete accordance with these Qur’anic instructions. Thus based on above Qur’an-Sunna indicants the mitigating effect of Qur’an-Sunna attitude becomes evident again.
Given the overall evidence and attitude of Qur’an and Sunna towards slavery it could be easily argued, as it was in the case of patriarchy, that the moral trajectory taken by the Qur’an-Sunna attitude warrants the complete eradication of slavery and thus obliteration of separate moral standards/normative behaviour for free and enslaved human beings.
Again for the hermeneutical shift from the pre-classical to classical Islam just like in the case of issues related to male-female gender dynamics , the mitigating effect of the Qur’an-Sunna élan premised upon the recognition of the hermeneutical implications of the ethico-moral acceptance of slavery in the Qur’anic revelatory milieu was not fully recognised as a legitimate hermeneutical tool that could lay path toward an ethico-religious values and purposive -based approaches to Qur’an-Sunna hermeneutics. This, in turn, translated itself in the field of Islamic Law and legal theory. Indeed, as Azam argues, despite what “may have been the liberatory intent of the Qur’an and the Prophetic example (sunna) the fact [remains] that Islamic Law legitimizes the pre-Islamic view that human being in an abstract sense –occupies a dual space as both a person and property, subject and object ,owner and commodity”.
In summary one important component in developing ethico-religious values and purposive based Qur’anic hermeneutic and, therefore, that of Islamic legal theory, is the taking into account the Qur’anic pre-suppositions evident in its text/content. As it was demonstrated in the case of some aspects of male-female gender dynamics and slavery, the Qur’an-Sunna mitigating effect would seem to suggest that the deeply embedded contextual patriarchal and slavery practices not only do not form the inherent components of their worldview but that the overall Qur’an-Sunna principles premised on the alleviation of unjust practices at the time of the Prophet mitigated these practices and paved the way towards their future complete abolition. However, often these practices and norms were, and in many of its aspects still are, considered by some Muslims as an integral and essential part of the Qur’an-Sunna normative worldview. Attempts to interpret the Qur’an-Sunna indicants in a light of a different hermeneutic are fiercely resisted by certain schools of thought within the Islamic tradition and are considered as undermining the very foundational pillars of an Islamic Weltanschauung as they conceptualise it. In the final analyses these approaches, however, in this author’s mind, not only betray the pre-classical understanding of the nature of the Qur’an –Sunna but also restrict the inherently polysemic character of the Qur’anic text, and therefore the Islamic legal theory, to its medieval interpretational possibilities which are based on , among others, patriarchal and slavery condoning values, norms and practices.