Do different exigencies "overturn" the letter of the law?

[CavemanDoctor]

Peace all.

I'd like to discuss a general idea here. Behind every Qur'anic law is a reason; a "spirit of the law," if you will. It prohibits theft, because deprivation of property hurts the owner of that property. It requires the use of 4 witnesses for lewdness because such a stigma on a would-be offender should only be attached after a substantial evidential requirement has been met.

But, in keeping with the spirit of each law, may the actual letter of the law be "overturned" (I hate to use that word here but I cannot think of a better one) when different exigencies (time/technology/etc.) allow for it? Or would that be presumptuous of us? For example, with the aid of videocameras, it is possible that lewdness can be physically caught on tape; are 4 witnesses still required? Would it not be keeping with the spirit of the law, would the substantial 4-witness requirement not be met, with the use of videotape? Or would this be a case of us assuming we know 100% the reason for the law (something, perhaps, only God knows)?

This question hit me when I was reading something by Parwez. In reference to the 2 female witness requirement for financial transactions in 2:282, Parwez stated the below (I highlighted the part I think is most relevant, for emphasis):

As far as the question of two women in lieu of a man is concerned, the Quran itself has explained the reason; i.e., if one woman forgets or is confused, the other shall remind her. This clarifies two points:

i) Firstly that in that period the women were such (due to illiteracy) that they were not able to describe their own case properly (43:18) and that it was seldom that a chance arose for them to take part in the collective affairs; it was not unexpected of them to get confused before a court of law.

ii) Secondly the need for a second woman arose only when the first one got confused and forgot. If the first woman remained free of confusion and forgetfulness, the second woman could neither interfere nor her testimony was needed.

This fully explains that, in fact, two women are not appearing as separate witnesses; one would suffice provided she does not suffer confusion in the court.

It makes clear that women are not considered unreliable as against men on the basis of being women. It is only the special conditions that are kept in view. When such conditions remain no more, the testimony of one man and one woman shall be considered equally trustworthy.

Do you agree with him? Why, or why not? Once those special conditions (in this case, a general knowledge by women, of financial transactions) no longer exist, does this 2 female rule no longer exist by the letter, but rather in spirit?

Peace all.

[Lobster]

peace Caveman Doctor,

i agree.

http://www.free-minds.org/forum/index.php?topic=5797.0
This is the thread that I started...i was trying to say the same thing (at least similar to what I think you are saying

the specific laws are not important, but the "why" of those laws, the spirit of those laws is. So although we can change the laws, we cannot change what those laws stand for. So changing the punishment of adultery is OK as long as it accomplishes the same thing.

[CavemanDoctor]

Peace phoenix.

Just to be clear, you can't agree since I never said I believe it to be the case.

I am asking for all views and a fruitful discussion.

To be clear (again), I am not speaking in "modernist" or "Western" terms. I don't care for such things. I only care about following what God demands. The question isn't about modernism, but rather spirit/letter.

[mquran]

Salaamun alaikum Cavey,

If we check AQ itself, then the answer is no. There is no 'spirit/letter' dichotomy. My reason for believing so is that when AQ gives flexibility in application, it explicitly says so.
This is clear to me from the inheritance laws which are called hudood or limits and as alternative to that, there's a will you write for yourself. Other laws like 'mischief on earth' (5/33) are multi-optioned and so, when Allah wants it to be flexible, He says so.

The special conditions you mentioned for Parwez is contained in the text itself. Imho, he did not project this opinion onto the text. Having said that, Parwez was reportedly (in his book 'nizami rabubiyyat', apparently which was read to me so I cannot verify) to have rejected inheritance laws as transitionary! He believed that at the end, the state will appropriate one's wealth and redistribute it. Was Parwez's first name Karl?

Now if I may philosophise on the matter: I think we may be faced with this qeustion because we see technology as a factor in this equation when it isn't. Lets take the videocam option. Using this option would mean that we need to live in a society of videohounds, whose social relations would be harmed by the phobia of others being filmed. This has almost an Orwellian angst about it. To me, the zinaa punishment is essentially about lewd behaviour in public. It simply disrupts public peace and the members of the public shouldnt have to carry a gadget in order to be protected from this.

[CavemanDoctor]

Peace bro.

The special conditions you mentioned for Parwez is contained in the text itself. Imho, he did not project this opinion onto the text. Having said that, Parwez was reportedly (in his book 'nizami rabubiyyat', apparently which was read to me so I cannot verify) to have rejected inheritance laws as transitionary! He believed that at the end, the state will appropriate one's wealth and redistribute it. Was Parwez's first name Karl?

I havent read his 'nizami rabubiyyat' but he does have a chapter on rabubiyyat (a concept he focuses a lot on) in his 'qurani qawaneen.' And you're right; he did reject inheritance laws as well as charity, as transitory. Although I do appreciate his willingness to form a complete theory of an Islamic state based on the Qur'an, I am definitely suspicious of a lot of his ideas. Some of them tend to still be mired in unproven traditional concepts; others, as you pointed out, have Marxist tendencies (though that, in itself, doesn't necessarily make them wrong).

Here's a direct quote about his transtitory claim: "The Quranic injunctions relating to charity, inheritance, etc. are of transitory nature for the period in which this system is still taking shape and is not yet finalised."

Link: http://www.tolueislam.com/Parwez/QL/QL_14.htm

I have to ask though; what do you mean by the special conditions being contained in the text itself (I'm referring specifically to 2:282 here)?

Now if I may philosophise on the matter: I think we may be faced with this qeustion because we see technology as a factor in this equation when it isn't. Lets take the videocam option. Using this option would mean that we need to live in a society of videohounds, whose social relations would be harmed by the phobia of others being filmed. This has almost an Orwellian angst about it. To me, the zinaa punishment is essentially about lewd behaviour in public. It simply disrupts public peace and the members of the public shouldnt have to carry a gadget in order to be protected from this.

Good point.

Salaamun alaikum Cavey,

If we check AQ itself, then the answer is no. There is no 'spirit/letter' dichotomy. My reason for believing so is that when AQ gives flexibility in application, it explicitly says so.
This is clear to me from the inheritance laws which are called hudood or limits and as alternative to that, there's a will you write for yourself. Other laws like 'mischief on earth' (5/33) are multi-optioned and so, when Allah wants it to be flexible, He says so.

Another good point; I do think 5:33 is key.

[Leyla]

Peace all

I basically agree with what mquran said but there is one little thing to which I?d like to add a slightly different view.
It?s a little bit off topic, maybe, but still worth sharing.

mquran: To me, the zinaa punishment is essentially about lewd behaviour in public. It simply disrupts public peace and the members of the public shouldnt have to carry a gadget in order to be protected from this.

In essence, right.

But I don?t think that the zinaa punishment is about lewd behaviour in public. I used to think that as well for some time.
But  I am quite sure now that it is explicitely about adultery observed in public. The difference being that someone needs to be committed to someone else to be able to perform it.
This brings in other dimensions.

Immoral acts in public are, imho, dealt with in 4/15 and 4/16.
4/15 talking about a single woman found guilty, 4/16 about a couple (the grammatical form can include all kinds of variently gendered couples, I?d say).
However, in essence what mquran says still applies because the issue of four witnesses is clearly mentioned here as well.

The context of zinaa in chapter 24 clearly includes the word muhSanaat (in 24/4) and the word azwaajahum (in 24/6).
That?s where I see the difference to general lewdness in public.

The difference is an ethical one:
Sura 24 brings in the issue of an individual (the rightful partner) whose rights and maybe also feelings were hurt through the behaviour.
This asks for a higher punishment than the one just for public lewdness.
You can not treat lewdness done by a committed person in the same way as lewdness done by a "free" person.

Still, to become a relevant crime in the face of law there needs to be observation in public. And since chapter 24 clearly elaborates on not spying it is clear that cameras etc. don?t count here.

bye,

Leyla

[Lobster]

Now if I may philosophise on the matter: I think we may be faced with this qeustion because we see technology as a factor in this equation when it isn't. Lets take the videocam option. Using this option would mean that we need to live in a society of videohounds, whose social relations would be harmed by the phobia of others being filmed. This has almost an Orwellian angst about it. To me, the zinaa punishment is essentially about lewd behaviour in public. It simply disrupts public peace and the members of the public shouldnt have to carry a gadget in order to be protected from this.

How would capturing something on a video camera make the whole society full of video hounds?
No one's proposing putting video cameras in every house, but the question is that if the video evidence is available, can we use that instead of having 4 witnesses?

Caveman, I agree that this is a valid (and good) question to be raised.

[warner]

Peace All

Agree with Leyla on the valuable input. Thanks for being among the few who realize
The difference of prohibited sex and marital status.

Video camera or photographic evidence is subjective. Superman is in video, that doesn?t make him real. Someone can always say her face was superimposed or the image was digitally edited. Video/finger print/DNA and other evidence can always be good as further evidence but when God says 4 reliable witnesses it has to be 4. The reason I will try to establish below. Also minute trace of evidence went against Clinton and a whole lot of evidence went for OJ. Can anyone guess Adam and Eves DNA. Or DNA of Jesus.

True, if some one publicly commits Fahisha, not just for 4 but maybe for 100 to see, she and her partner automatically qualifies for the punishment. They must be out right stupid, if the 100 stripe law applies, to do it publicly.

But this is not about public lewdness.

The Quraan is talking about the repeat offender. If a man or a woman does a mistake (commit Fahisha/prohibited sex ) then realize quickly and repent and do not repeat it, he/she is forgiven and forgotten. (4:17 - 18).

It is remote 4 reliable witnesses seeing a woman committing prohibited sex in secrecy.
But there is a way a fahisha can qualify with 4 witnesses. It is the situation of some one committing fahisha/prohibited sex regularly. Having an affair and/or doing wrong again and again and therefore not repentant and not stopping. When some one is regularly doing this 4 interested people can plan and become witnesses. We can see regular cheating and affairs come to light often than one time slips.

The Gods law works very efficiently here. Without the punishment coming in to effect the person committing the wrong gets the opportunity in the start to feel guilty, repent and amend. But someone doing it continuously is naturally not repentant. Thus putting her at risk of getting caught with 4 witnesses, since the chances are higher the husband gets suspicious  and lays the trap if he is patient.

Also since the punishment is severe the rules are stringent too, giving an opportunity to stop and repent  in the start. And effectively takes away slandering of innocent women.


I will attach here an article I wrote on Zina and Fahisha in another thread which gives clear meanings to these words from the Quran

Peace All


Meaning of Fahisha
The Quraan describes "zina" as a Fahisha/Fahisya (17:32) and homosexuality of people of Lut as Fahisha (29:28). Marrying women your fathers married as Fahisha (4:22).  Basically Quraan identifies all prohibited sex as fahisa.

Fahisha (prohibited sex/ illegal sex act) only amounts to ?zina? if it was committed by a married person or a couple. In other words, zina is, fahisha ( prohibited sex) committed by a married man or a woman.

If you look at verse 24:2 the punishment for the adulterer and adulteress (For committing zina) is 100 lashes. In 33:30 the punishment is doubled (200 lashes) for the prophets wife (married woman) if she commits Fahisha. In 4:25 for Ma Malakat Aymanakum the punishment if they commit Fahisha after becoming committed/married is 50 lashes (married woman). You can see a pattern of punishment and the guilty being married persons.

If unmarried men and women commit prohibited sex it is fahisha but it does not amount to zina. For unmarried men and women committing Fahisha the punishment is imprisonment/house arrest for a while and after that if they repent and amend they are to be forgiven and accepted. (4:15 and 4:16).

4:15
If any of your women are guilty of lewdness/Fahisha, Take the evidence of four (Reliable) witnesses from amongst you against them; and if they testify, confine them to houses until death do claim them, or God ordain for them some (other) way.

4:16
And as for the two who are guilty from among you, punish them both; then if they repent and amend, turn aside from them; surely Allah is Oft-returning (to mercy), the Merciful.


There seem to be a time gap between the 2 verses. A time gap is quite possible between verses. If you look at 33:50 which gives the go ahead for the prophet to marry as he pleases and one verse after in 33:52 it commands him to stop marrying further. It seems the first revealed rule for Fahisha was to punish only the guilty woman by restraining her in her house until death. But the verse says ?or God ordain for them some (other) way? and the ?some other way? is revealed after a certain time by ordering to punish both by restraining them in their houses but if they repent and amend to forgive.




Also some translators have translated as 2 women (4:15) or 2 men (4:16) giving wrong meanings to the above 2 verses. Some translators have interchanged adultery, fornication and lewdness as and when they want which has distorted the meaning of sentences mentioned in this article.

In 65:1 its clear a married woman committing fahisha (zina) can be driven out of home but as for unmarried women to keep them confined to their houses (4:15). Further it allows taking away part of the dowry given to a married woman committing fahisha (4:19). 

All Fahisha accusations whether regard to married or unmarried people should have 4 witnesses (4:15 and 24: 4). If some one accuses a committed/married woman and could not produce 4 witnesses the person accusing should be given 80 lashes. The 80 lashes do not seem to apply someone accusing an unmarried woman.

Further, believers must realize prohibited sex is a great crime. In 60:12 and 25:68 zina is ranked with some of the gravest sins.

17:32   
Yusuf Ali     Nor come nigh to adultery: for it is a shameful (deed) and an evil opening the road (to other  evils).

Pickthall     And come not near unto adultery. Lo! It is an abomination and an evil way.
         
                   Wa la_ taqrabuz zina_ innahu_ ka_na fa_hisyah(tan), wa sa_'a sabila_(n).

[mquran]

I havent read his 'nizami rabubiyyat' but he does have a chapter on rabubiyyat (a concept he focuses a lot on) in his 'qurani qawaneen.' And you're right; he did reject inheritance laws as well as charity, as transitory. Although I do appreciate his willingness to form a complete theory of an Islamic state based on the Qur'an, I am definitely suspicious of a lot of his ideas. Some of them tend to still be mired in unproven traditional concepts; others, as you pointed out, have Marxist tendencies (though that, in itself, doesn't necessarily make them wrong).

I've learnt a great deal from his works myself but to my knowledge, there's no proof behind this 'transitionary laws' idea. At the moment, I feel that Parwez molded his interpretation of al-quraan to fit in with the formation and rule of Pakistan. That shackles the mechanism of al-quraan a lot.

I have to ask though; what do you mean by the special conditions being contained in the text itself (I'm referring specifically to 2:282 here)?

Well, according to 2/282, the conditions specified is that if one of them is in error, the other can remind her. There's no 'socio-economic' reason mentioned.

Another good point; I do think 5:33 is key.

5/33 usage of the term 'fasad fil ardh'/mischief on the earth opens it to a world of meanings as 'fasad' is the opposite of 'salih' and 'ihsaan', both terms being key terms in the Quranic philosophy of 'goodness'. Our man Parwez's 'lughatul quraan' goes a long way in explaining this.

[mquran]

Leyla:But I don?t think that the zinaa punishment is about lewd behaviour in public. I used to think that as well for some time.
But  I am quite sure now that it is explicitely about adultery observed in public. The difference being that someone needs to be committed to someone else to be able to perform it.

Agreed and good utilisation of the principle of tashbih. Thanks for that