Why Islamic Law is not like Constitutional jurisprudence


"How then is Quranic interpretation different from constitutional interpretation?

To understand how Islamic legal interpretation is different, take the oft-debated issue of the number of wives a man may have under Islamic law. As is well known, the Quran says that a man have up to four wives provide he treats them equally. The Quran then adds a further injunction that no one can treat their wives equally.

The traditional legal interpretation of this point is that a Muslim man may indeed have up to four wives. The Quranic statement that no man can treat all four wives equally is thus taken to mean that absolute equality is impossible and that reasonable equality of treatment is sufficient.

Compared to this, we have the modern day reformist perspective. The reformist argument is that when the Quran states that it is impossible to treat all four wives equally, it should be taken literally and that Islamic law only allows Muslim men to have one wife at a time.

The heated debate over this issue tends to hide the fact that both the reformist and traditional schools of interpretation assume that there can only be one truly Islamic law which is valid for all times. Thus, the traditional scholar argues that a Muslim man could have four wives in 611 A.D. and that he can have four wives in 2011. The reformist argues that a Muslim could actually only have had one wife back in 611 AD and that the same holds true in 2011. What neither school is willing to concede is that Islamic law in back 611 allowed for four wives at a time but that Islamic law in 2011 only allows for one wife. This is because neither traditional scholars nor reformers allow for the possibility of change in Islamic law: both approaches assume that what is true in Islamic law is true for all times – past, present and future. And it is in this sense that Islamic jurisprudence differs from constitutional jurisprudence. Constitutional jurisprudence has no problems stating that what was true yesterday is no longer true today while at the same time conceding that was true yesterday was indeed true yesterday. Islamic jurisprudence does not allow for that: either something is true for both yesterday and today or it is not true at all. There is no temporal variation permitted in Islamic jurisprudence.

To understand why this is so, one has to go back back into Islamic history and the debate over the createdness of the Quran.[...]"

Comments

Komal said…
I'm glad he said it.

My favourite commentator on this issue is Robert Spencer. I don't agree with his politics generally, but I'm glad he has the courage to call out the inherent suckiness of Islam.
meera said…
Hi Komal (and Awais too)

Talking of courage, if not for anything, I certainly appreciate Hirsi Ali. But the problem with today's intellectuals/critics of Islam is that they use right arguments to come to wrong conclusions or promote an agenda. As it is with Ali, so goes with Spencer.

Meera.
Komal said…
I like Ayaan Hirsi Ali too, though I feel Robert Spencer is a bit more knowledgeable about Islam.
ahish said…
This lack of flexibility in interpretation, is it not a problem with all religions? Why single out Islam?
meera said…
Yes, Komal. Spencer could be a bit more knowledgeable because he is predominantly a theist religious scholar (self-taught or whatever) while Ali isn't. As we know, she is a liberal atheist feminist and we hence find a difference of knowledgeability, as seen in her style of crusade/activism against Islam. But that does not make Ali any less vehement or incorrect in her criticism. The force and clarity in her writings comes from her direct personal experiences of tremendous repression suffered at the hands of her religion, specially as a woman. Her questions are very straightforward, very profound, and very relevant - while her answers/solutions are nothing close to that. Though I do like her as a writer because she is a great story-teller with beautiful language skills (like that of simplicity, quickness and precision).

Well, I would never forget that brave critics are the lifeblood of sustenance of freedom and liberty in the world. Whatever the difference in degrees of their intellectual content, I would always respect both Ali and Spencer for their courage.
Komal said…
I think that's one of the reasons why I don't like Ayaan Hirsi Ali as much as Robert Spencer. Hirsi Ali cannot sympathize with theism, and doesn't seem to distinguish between Islam and the other two monotheistic religions.
puzzled said…
The article presents a good explanation of why a certain theology shouldn't be used as constitution.
BUT THE VERSE HAS BEEN QUOTED WRONGLY:
'The Quran then adds a further injunction that no one can treat their wives equally."
ACTUAL VERSE GOES LIKE THIS:
"If you fear you will not deal justly with them marry only one".

This destroys the the so called reformist argument.
for an explanation of why this allowance was given see the commentary on this link
:http://www.alislam.org/quran/tafseer/?page=493&region=E1

plus an answer to a question that is bound to rise :why women have not been given the permission to marry more than one man?
because it would create identity crisis of children and subsequent fights.
Plus men are more prone to be killed in a society due to wars etc and due to which increased number of women would be left without marriage as happened in Germany after world war.
puzzled said…
@komal
"The introspection illusion is a cognitive illusion in which people wrongly think they have direct insight into the origins of their mental states, while treating others' introspections as unreliable. In certain situations, this illusion leads people to make confident but false explanations of their own behavior"(wikipedia)
Don't just satisfy by listening to people who are critcs..if you have courage go an answer the commentary I have given the link,prove it cruel
......courage is required when you feel that an opponent explanation might shake your belief but you go to them, appreciate their point and then answer them... you are not an atheist but an escapist
Awais Aftab said…
@ puzzled

We aren't discussing polygamy in Islam and whether it is right or wrong. We are discussing the nature of Islamic Law vs Constitutional Law, regarding which you had nothing to say, and the contrast still stands.
Awais Aftab said…
why women have not been given the permission to marry more than one man?
because it would create identity crisis of children and subsequent fights.


So if a woman doesn't want to have any children and she is using contraception, or say she is sterile, then there should be no objection against that woman marrying more than one man.
Furthermore, in these days to determine the paternity of children is a very easy matter through medical and genetic tests, rendering this arguments invalid.
Awais Aftab said…
And as far as the commentary goes:

A man has a number of orphans, including girls, to look after. He is unmarried and there is danger of his falling into temptation. In this case, he should marry one or more girls...

Wow. Genius. So if you are afraid you can't fight off temptation, and you might end up raping or seducing ORPHAN GIRLS UNDER YOUR PROTECTION, then you should go ahead and just marry them. How very moral! And hello, what about the consent of that girl? Does an orphan girl under your protection even has a choice? "Marry me or I'll just rape you anyway, cause I can't help falling in temptation."

Some of his younger relations, eg, brothers or sisters, become orphans and he finds that he or his existing wife cannot properly look after them. In such an eventuality, he may marry a suitable woman of mature age who may treat them like a mother.

Why don't you just hire a servant to look after the kids!! Oh, right, in that age they probably had no paid servants. They either had slaves or had wives. But just to remind, in our 'civilized' age, it would immoral to marry someone just because you want someone to look after the younger relations!
Awais Aftab said…
If a person is afraid that the orphans under his care being strangers to him, he may not treat them as kindly as he should do, he may establish direct relationship with them by marrying on of the female wards.

Which is just another way of saying: I can only treat my wives with kindness, and since I must treat this orphan girl with kindness, therefore, I must marry her!

It is a hard fact which cannot be denied that there are persons whose sexual instinct is too strong to be satisfied with one wife.

You shouldn't marry people just to satisfy your sexual instinct! This is the stupidest reason to marry! You want a sex-machine and so you get a wife! This is just degrading.

And what if a man cannot satisfy his wife! What about that, huh?


I don't want to make an absolute moral judgment of polygamy itself for now. I just want to show how flawed these reasons for polygamy are.
Awais Aftab said…
@ puzzled

And to speak on Komal's behalf, she is neither an atheist nor an escapist, nor does she lack in courage. And her powers of introspection are far greater than you can imagine, so stop talking about people you have no idea who they are.
Awais Aftab said…
@ ahish

You are right. I guess most religions are like that. I single out Islam cause that's the religion I have to encounter on a daily basis.
Komal said…
Thanks Awais, for your defense of me, and also for your excellent responses to puzzled's arguments :D.
puzzled said…
OK calm down..I said too much about komal and yes you are right I know nothing about her neither do I claim, i feel the stupidity of my comment and i shouldn't have got personal,sorry...
puzzled said…
as far as commentary goes focusing on just 1 or two points is cruel,a whole of possible reasons have been presented,you did every thing except to appreciate those points.A post war condition or any condition in which a lot of orphans are left unprotected has been made the basis,it has been shown that the people on whom this responsibility falls should take certain measures to protect injustice against orphans including sexual ones.In a post war condition a number of widows are left alone they too should be looked after and in other places of holy quran Muslims have been enjoined to do so.There is lot more explanation that needs to be given but i find it beyond my power ,not that it can't be given
you wanted to show me down,i accept my defeat.

@As far as my arguments go,i admit the flaw,these might not be the reasons but i just tried to show some


@what about the consent of that girl? Does an orphan girl under your protection even has a choice?

if that girl wants to marry somebody else, that man will be looking after her no need for me to provide any thing and so my influence vanishes.Not talking about Pakistan but a society where justice is present.

@A man has a number of orphans, including girls, to look after. He is unmarried and there is danger of his falling into temptation. In this case, he should marry one or more girls...
That would be a perfect scenario but if I coerce them to marry me I already did an injustice, refraining from which was the purpose of marriage
puzzled said…
@Some of his younger relations, eg, brothers or sisters, become orphans and he finds that he or his existing wife cannot properly look after them. In such an eventuality, he may marry a suitable woman of mature age who may treat them like a mother

the word mother shows that this marriage is more for providing motherly love to children of small age,whose emotions a newly wed girl is unable to understand and console.+plus that woman of old age will get support from marrying,its no servant position.
And plz remeber thrusting children in hands of servants is a cruelty in itself because humans beings just dont want their physcial needs to be catered for but also need their emotions to be consoled which for which a motherly figure is best

@If a person is afraid that the orphans under his care being strangers to him, he may not treat them as kindly as he should do, he may establish direct relationship with them by marrying on of the female wards.
Establishing of relations is a good thing.You may look it from as many scenarios as you want.BUt if the marriage takes place with willful consent of both then whats the harm.

@You shouldn't marry people just to satisfy your sexual instinct! This is the stupidest reason to marry! You want a sex-machine and so you get a wife! This is just degrading.

i agree with you.what would you suggest for him,stick to this philosophical stand and don't marry anyone ,although spending time with somebody else using pragmatic approach outside wedlock will be of no harm,for its just freedom to act,you shouldn't try to indulge in cycle of responsibilties


@And what if a man cannot satisfy his wife! What about that, huh?
then that women should get separated from him and marry another man.Only one of man or woman can be given this allowance to marry more than one ,otherwise it would create such a mess of relationships that will be incompabtibel in human society.And due to many of the reasons,one of them being more prone to be less in number,man stands out to be the best of candidates.
puzzled said…
This comment has been removed by the author.
puzzled said…
Now i don't want to make it a war of words,for i don't even think mine or the commentary I linked is the best or there isn't any other possibility.
this is just to show that those arguments were not after all
that stupid and they have reasons for them.
Things get different from different perspectives.And i don't believe in Islam because of them or that it should justify certain reasons that in their very nature are subjective.
Its a matter of faith and my faith cannot be satisfying to you although it may completely satisfies me.NO offence was meant and if I have hurt someones feeling I am sorry for that.
Awais Aftab said…
My purpose was to bring into question the 'perfection' that you perceived that particular commentary possessed, and that you threw out as a challenge.

I can appreciate the arguments for polygamy. The problem is, the attempts to justify polygamy is this manner reveal that polygamy is justified in a particular society with particular gender roles and with a particular conception of marriage, and in a particular context. It's not something applicable to people of all times and places. It was only applicable to the Islamic society at the time of Koran.

I don't believe in that particular society with particular gender roles and with a particular conception of marriage. So I don't really care about polygamy. In a free society where sexuality is not bound by marriage and where women are not dependent on men for economic support, there is no need for polygamy of this sort. It's just irrelevant.

So when your respected commentary states "The West will never recover from the terrible moral and social diseases from which it is suffering as well as from the appalling numerical decline facing certain countries and communities, unless, setting aside all false notions and false sentiments, it submits to the Islamic injunctions about polygamy.", it is totally wrong about it. You can keep your faith, but it flies in the face of all socio-moral developments, so don't expect us to treat it with the same sacred perfection that you do.
Komal said…
I would single out Islam, actually. The only other religion that is legalistic is Judaism. At most I would put Islam and Judaism in the same league, but I wouldn't include any other religion in that league.

Religions are not interchangeable. Some religions are better than others, and Islam is the worst of the lot (or one of the two worst).
F. said…
"You can keep your faith, but it flies in the face of all socio-moral developments, so don't expect us to treat it with the same sacred perfection that you do."

Hear! Hear! *applauds* I'm tired of one-way diplomacy.