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This relatively detailed
question must be addressed from different perspectives:
1- How is the eternal nature
of Islamic laws explained?
2- Do we perceive the cease
of execution of a certain law for a period of time
because of extenuating circumstances or for something
more important as breaking the law?
3- How related are the
things you mentioned in corroboration of your claims
with what you were asking about?
Now the answers to each of
these questions in the same order mentioned above:
1- Regarding the first
question one must say that generally divine religions
are comprised of two parts, the rules that have an
eternal nature and those that are unstable and change. The
rules that are permanent relate to the stable aspects of
humans life. But
these religions also have paid attention to the changing
aspects of man's life through legislating tenets which
change and vary depending on the time, place, economic,
cultural and social circumstances.
What is meant by the eternal
nature of the Islamic law is that the permanent and
unchanging rules are so stable they will stay remained
unchanged forever, but the methods used to carry them
out have the flexibility to change in different
situations. The
change of these tenets which can also be seen during the
time of the prophet himself does not entail the change
of the general and eternal rulings, for more explanation
you can refer to the seventeenth volume of Tafsir
Nemouneh, page 341 which is about the final and seal of
religions and to Question
781 of
this website which relates to the comprehensiveness of
religion.
2- The fact that the general
rules are eternal in Islam does not mean we have no
choice but to be fundamentalists and carry out religious
law while ignoring the circumstances and situation we
are in! In
other words the eternal aspect of Islamic law is
somewhat intertwined with the changing aspects of
human's life such that the two cannot be separated from
each other. This
is the reason why issues like secondary rules, the clash
of the important and more important, ezterar
(extenuating circumstances), ekrah (being forced) have
all been discussed in Islamic jurisprudence.[1]
When examining the Quran we
come across cases where even denying the oneness of
Allah is allowed due to a certain situation.[2] When
"Ammar Yaser", one of the greatest companions of the
prophet, denied the oneness of Allah (swt) to save his
life, not only was he not blamed and criticized buy the
Quran, but the prophet and the Imams all supported and
backed his act![3] If
denying the oneness of Allah which is the most
fundamental belief in Islam is allowed in certain
situations then obviously putting aside some of the
rules that are of less importance in such situations is
allowed too. Let's
say stealing from others is a considered a sin in Islam,
but what if Islam said that if someone was so hungry and
needy that he would die without stealing he won't be
punished for it, does this mean that we are denying the
fact that stealing is a sin?!
What if we stop carrying out
some of the rules for a specific period of time because
of the potential global dangers that threat the lives of
Muslims? Does this mean we are putting this law aside?
Obviously the answer is no. When
referring to the books of jurisprudence we find a
notable difference between "Ilgha" (nullification) and
"Ta’ligh" (suspension of the law). "Ilagha"
means to put a certain rule away completely, but
"Taligh" means to cease the execution of a ruling for a
period of time due to certain circumstances. If
one pays close attention, he will see that in many
cases, what is actually happening is that the execution
of a law is being suspended, not nullified!
3- As for the examples that
were mentioned in the question as cases where Islamic
law has been changed, we will analyze them one by one to
see what has really taken place:
a) The delegation of the
right of divorce by men to women does not entail the
change of the law, because this right still lies in the
hands of the man and it is only when a woman is facing
serious circumstances that the man has given her the
right to carry out the divorce on his behalf. In
this regard there are a few points that we must pay
attention to:
First: When
someone delegates a certain right he still has that
right, so when a man gives this right to his wife he
does not lose his right, because delegation does not
take place if one does not have a right to grant to
others.[4]
Second: She
only has a right of divorce when she is facing hard
circumstances and having a hard time with her husband
and continuing to live with him becomes very harsh and
intolerable.
Third: Taking
the second point into consideration it is obvious that
even if the right of divorce was not passed down to her
and she was being bothered and oppressed by her husband
she could always refer to a judge and get divorced, the
fact that Islam has granted men with the right of
divorce in the first place does not mean Islam will let
men keep women in a hard and difficult situation where
their rights like receiving "Nafaqah" are not respected.[5] So
women actually possess this right from the beginning and
what is really happening when the two agree that the
woman have the right to execute the divorce is to ease
the process without any need to go to a judge and other
time-consuming stages.
b) Regarding the issue of
Diyah that was pointed out in the question, there are
two points that seem to have been overlooked:
1- In
contrast to what you have stated in your question, the
law of the diyah of the People of the Book is not
mentioned in the Quran and it is through the hadith and
tradition that we understand the rulings in this regard.
2- There is no mention in
our hadiths that the Diyah of the 'People of The Book'
is half of that of Muslims, the only thing we have about
being half, is the diyah of women compared to men. The
amount of the Diyah of the People of the Book is
mentioned as being "800 Dirhams" in most books of
jurisprudence.[6]
Now, keeping these two
points in mind, we will analyze this matter:
Islamic scholars in
different countries have had different viewpoints
regarding the amount of Diyah for Non Muslims, and most
Shia scholars have accepted the amount of "800 dirhams"[7],
this has also been accepted today, but due to the
agreements that we have accepted and the special
international circumstances that were are living in this
law has been changed through a "secondary ruling".
The fact that their Diyah is
equal to the Diyah of Muslims
is against primary Islamic law and that is why Council
of Guardians (who bears the responsibility of making
sure the country’s laws are in accordance with Islamic
law) has not accepted such a law, but it is because of a
secondary ruling and that it sees it to the benefit of
the country today that the Expediency
Discernment Council has decided to take on the
new law. It
is easy to forget that what the Expediency
Discernment Council has done is not breaking the
Islamic law, but rather the secondary ruling is taking
precedence over the primary ruling due to its
importance. When we look back on the history of the
prophet we find that such a thing was done at his time
too. For example in the treaty of 'Hudaibiyya' he
surrendered one of his followers to the polytheists
because of an agreement he had arranged/signed with
them.[8] This
was done even though the primary Islamic law does not
allow the turning over of a Muslim prisoner to the Non
Muslims, but the prophet did so according to these
secondary rulings and at that time some Muslims who
didn't understand these rulings opposed his opinion.
Therefore regarding the
issue of Diyah the Islamic law has not been changed but
its execution has been temporarily suspended due to the
situation we are in; this doesn’t mean that Allah (swt)
wasn’t aware of the fact that certain situations will
come up that call for other rulings, rather the general
rulings in Islam are set for usual situations and when
special situations come up, we have the secondary
rulings that come into play.
c) The next part of the
question had to do with the three issues of Heritage,
Will and Bazl (giving money or other belongings to
others), and all three of them were mixed, so before
anything else we will clearly define these three
concepts:
Bazl: Every healthy and sane
individual is in charge of his wealth and belongings and
determines how to use them, for example he can use them
to fulfill his or his family's needs, he can give them
in charity for the needy, or he can grant it to others
as a gift which is called Bazl, therefore no one has the
right to stop him from doing so, though this right of
his is limited when he has a disease that ends in his
death.
Will: To will means for a
person that is going to die to command his family to do
a set of things that may not even relate to financial
affairs. According
to the Islamic law one can spend his money as he likes
but can only determine what happens to one third of it[9] after
his death and the rest belongs to the inheritors.
Heritage: The first thing
done to the money one leaves behind after he passes away
is that his debts are paid from that money, in the next
step the inheritors should act according to his will
regarding one third of the money, then the rest is to be
divided between the male and female inheritors in a
ratio of 2 to 1.[10]
Therefore the heritage of
one who passes away is only considered after his debts
are paid and his will is acted upon and the amount of
heritage that family members will receive does not
change. Nevertheless
one can financially support some family members more
than others while alive, or can give them more money
through his will (that only has to do with one third of
his money), but as we explained above he cannot will
regarding to two thirds of his money and all of it will
be given to his inheritors. After
all inheritors have received their share they own that
money and can decide what to with it, they can keep it
for themselves or they can grant it to other people like
their brothers and sisters, and granting their money has
nothing to do with the ratio in which the heritage is
given to the inheritors, for this giving is done after
they have received their shares.
If you have questions
regarding the difference between men's and women's
inheritance you can refer to this site to find your
answers: Question
2207 can
especially be helpful.
d) Although the mixing of
men and women is not allowed according to the traditions
and the Sira (lifestyle) of the prophet and his
household and the Holy Quran that calls both genders to
modesty in various verses[11],
but not all kinds of mixing is forbidden, for example
men and women can coexist in society if being together
does not cause sins. Even
during the time of the prophet men and women would work
together for the progress of the society. Verse
32 of Surah Ahzab can be good proof for such a
assertion, the verse says: "Wives of the Prophet, you
are not as other women, If you are god fearing, be not
abject in your speech, so that he in whose heart is
sickness may be lustful; but speak honorable words"[12] We
must pay attention that the verse does not forbid
speaking to anyone who is not mahram, but it is
forbidding the kind of speech that may entail the
committing of sin, it goes the same about the physical
mixing between men and women, meaning that if the mixing
will lead to the committing of sins, then it is Haram.
As for the mixing of men and
women in Hajj, since there is a lack of sufficient space
there for pilgrims, in order to solve the problem of the
mixing of men and women, different solutions are
possible:
First: In order to prevent
the mix of women and men the practice of this ritual
should be stopped! Obviously
such an idea would be greatly challenged because of the
important role Hajj plays in Islam, and its social
effect and influence on the Muslim community through out
the world. This
ritual is so critical that Islam says in the case of the
people not wanting to go, the leaders of Muslim
countries are responsible to pay instead of them and use
force to send them to Hajj if they do not cooperate.[13]
Therefore no one can ask for
Hajj to be ceased just because their may be a mixing of
men and women.
Second: The next solution
would be to prevent one of the two genders (for example
women) from performing the pilgrimage, which does not
make sense either, because pilgrimage is just as much
essential for men as it is for women, to the extent that
women must make the trip to Mecca even without their
husband's permission if the Hajj has become wajib upon
them.[14]
Third: To separate the men
and women in a way that each group would do the ritual
in a special part of the mosque so that they won't be
forced to pass by each other or bump into each other
while performing tawaf, this is a good solution and it
has been put to practice in other places during hajj
like the tents in Mina and Arafat. We
hope that the authorities of Hajj and Muslim scholars
will work hand in hand to take care of this problem.
But until this problem is
solved Muslims should be careful not to be tricked by
Satan in committing sins during Tawaf, obviously
participating in Hajj can not be considered permission
to touch one of the opposite sex, therefore what was a
sin before Hajj is still a sin during Hajj and Tawaf. Some
pilgrims assume that men and women are considered
brothers and sisters during hajj, but the truth of the
matter is that none of the rulings regarding men and
women change during Hajj. For
example there is a Hadith which says a woman was doing
tawaf and her hand and forearm were exposed for a
moment, a man that was doing tawaf behind her put his
hands on hers! All
of a sudden and in miraculous way their hands stuck to
each other, eventually all of the other pilgrims stopped
and stared at the two of them. The
governor of Mecca was informed and the ulema of the city
asked the governor to cut off the hand of the man. Finally
they explained what had taken place to Imam Hossein
(that was in Mecca at the time also performing the
pilgrimage). He
then raised his hands and prayed and supplicated for a
long time and walked to the woman and moved the man's
hand away from the woman's, the governor asked: "Should
I command my soldiers to cut off the man's hand?" The
Imam told them not to (and thought that Allah's (swt)
punishment was enough for him)"[15].
Therefore none of what was
mentioned in the question were actually a change of the
Islamic law. We
must keep in mind that the flexibility of the rulings
and tenets in Islam is not only in harmony with their
eternal nature but rather makes it possible to carry
them out in different situations without causing changes
in the rulings.
Related question: Question
6967, Revocation of capital punishment and banning of
torture in Iran (website: 7091).
[1] Adopted
from: Religion,
Stability and Change, Question 10 (website:
209).
[2] Nahl:106.
[3] Hurr
Ameli, Muhammad ibn Hasan, Wasa’elul-Shia,
vol. 16, pg. 225, hadith 21423.
[4] The
Civil Law Book (Iran), article 662.
[5] Ibid,
articles 1111 and 1129.
[6] Najafi,
Muhammad Hasan, Jawahirul-Kalam fi
Sharh Shara’iul-Islam, vol. 43, pg. 38;
Sheikh Saduq, Man
La Yahduruhul-Faqih, vol. 4, pg. 121, hadith
5250.
[7] Najafi,
Muhammad Hasan, Jawahirul-Kalam,
vol. 43, pg. 39.
[8] Majlisi,
Muhammad Baqir, Biharul-Anwar,
vol. 20, pg. 362.
[9] Hurr
Ameli, Muhammad ibn Hasan, Wasa’elul-Shia,
vol. 1, pg. 271, chapter 10.
[10] Nisa:11
and 12.
[11] Such
as: Nur:30 and 31 and 60, Mu’minun:5, Ma’arij:29
etc.
[12] Ahzab:32.
[13] Hurr
Ameli, Muhammad ibn Hasan, Wasa’elul-Shia,
vol. 11, pp. 23-24, hadiths 14148 and 14149.
[14] Ibid,
vol. 11, pg. 155, hadith 14511.
[15] Ibid,
vol. 13, pg. 227, hadith 17613.
