The Theory of Limits in Islamic Legislation

article picked 4U by - Mohammad Shahrour

May 27, 2020

The Theory of Limits in Islamic Legislation

The theory of limits is based on the notion of a flexible system of (contingent) law that replaces legislation containing rigid regulations and certain penalties that allow no mitigation and are thought to be once-and-for-all fixed. Taking up again an analogy with the measurement of blood sugar in the blood, we propose a system that allows much tolerance in what is perceived to be normal, that is, we tolerate blood sugar levels within the range of 70 to 120 mg because we believe that if we insisted on a strict limit of just 70 mg as the only acceptable level of blood sugar we would seriously risk the health of millions of people. Doctors all over the world know that 70 mg is just the lower limit and that blood sugar levels of up to 120 mg (the upper limit) can be tolerated.

The legal verses of the Book provide us with the legislative framework within which we may adopt the new laws required by social change. A framework of legislation does not contain, as many believe, certain penalties which turn into ‘sources of law’, but just their outposts or, to use a football term, their sidelines. In some legal cases one may not even come near such sidelines, in others it is permitted to touch the line without fully stepping over it. Analogous to a football match, Islamic law allows movement over the entire football field. Sidelines only indicate the limits within which the game can be played while still allowing millions of different ways to play the game and of applying different tactics and strategies. Islamic law after Muhammad’s messengerhood requires legislation within the limits of Allah, allowing an unlimited number of different legislations according to the needs of society. That is why Muhammad’s messengerhood is called ‘mother of the book’ (umm al-kitab and not just ‘book’—as Moses’ and Jesus’ messengerhoods were called—because it allows millions of ‘books’ of legislations to be derived from it. And as the ‘mother of the book’ abrogated the previous books of Moses and Jesus, so will future legislations (‘books’) subsequently abrogate each other (not, of course, within weeks or months as some of our critics have insinuated).

Limits of Legislation

  1. Lower limit Lower limits are provided in:
  1. The verses of marriage: And marry not women whom your fathers married, except what is past: It was shameful and odious—an abominable custom indeed. (Nisa”:22)

Prohibited to you (for marriage) are: your mothers, daughters, sisters, father’s sisters, mother’s sisters, brother’s daughters, sister’s daughters, foster-mothers (who breast fed you), foster-sisters, your wives’ mothers, your step-daughters under your guardianship, born of your wives to whom you have gone in—no prohibition if you have not gone in— (those who have been) wives of your sons proceeding from your loins, and two sisters in wedlock at one and the same time, except for what is past; for God is oft-forgiving, most merciful. (Nisa”:23)

In these two verses of Surat al-Nisa” Allah has issued a rule that provides a lower limit prohibiting certain marriage types. Nobody is permitted to transgress this lower limit. Under no circumstances is an ijtihad acceptable that, for whatever cultural or political demands, aims at allowing a Muslim-Believer to marry his mother, daughter, maternal or paternal aunt, and the like. However, since the lower limit stands alone in the text, one may add further restrictions. For example, if medical tests indicate that children from couples who in some cultures permit cousin marriage are showing higher risks of developing genetic disorders, the legislator is required to respond and to extend the list of prohibited marriage partners to the children of maternal or paternal aunts (note that this prohibition can never be an absolute taboo, because this is God’s prerogative).

Such an extension would not violate Allah’s limits, because, in stipulating possible marital arrangements, He did not provide an upper limit. The only condition is that clear scientific proof must be provided before any new legislation can be introduced. This means that a call for ijtihad must be based on scientific evidence, and not on analogy. Analogies compare newly arising legal problems with previous legal cases or with a consensus of jurists who lived in the past, such as the salaf forefathers. Such analogical reasoning is, by definition, retrospective and regressive. It prevents Islamic legislation from being truly hanific, that is, changeable, progressive, and adaptive to new scientific discoveries.

  1. The food taboos:

Verse 3 of Surat al-Ma”ida lists ‘carrion and blood and swine flesh’ as prohibited food as well as food that has been ‘dedicated unto any other than Allah’. This constitutes the lower limit for those who want to legislate what is illegal to eat. A different category is meat of ‘the strangled, and the dead through beating, and the dead through falling from a height, and that which has been killed by (the goring of) horns, and the devoured of wild beast. Food from this kind of meat cannot be regarded as an absolute taboo, because, if one manages to slaughter it correctly by an ‘invocation of God’s name’, it becomes halal food and, hence, edible:  as stated in (An’am:145) and (An’am:119)

These two verses of Surat An’am state that under duress one is allowed to eat food that is normally forbidden. A transgression of Allah’s lower limit is hence permitted provided that we did not invent the reason that forced us to eat forbidden food. Such an exemption from the normal rule, however, does not exist with regard to marital arrangements. Under no circumstances is one permitted to cross the lower limit, not even in exceptional circumstances. Even if marriage outside one’s own family has become virtually impossible because of a dramatic shortage of unmarried women/men, it would still be illegal to marry close relatives.

1- The regulations concerning debt: In verses 282–83 of Baqara, Allah stipulated the lowest limit for what can be accepted as a valid contract. Since no upper limit has been set further regulations might be added that reflect the changing nature of financial contracts and the ever-evolving rules of society’s commercial markets. Note that the minimal requirement of ‘one man, or two women’ only refers to an oral contract (‘so that if one of them errs, the other can remind her…’). If two women must appear in person to witness the ‘signing’ (or sealing) of a contract, it is because the contract is only expressed orally, and not in writing. However, if such contract is produced in written form, the testimony of two females is no longer necessary. In this case, the minimum of ‘one man or one woman’ is all that is required. We reject all sexist interpretations that explain double female testimony as proof of women’s inferiority and an indication of their incompetence in commercial affairs.

2- Women’s dress: And say to the believing women that they should lower their gaze and guard their [lower] private parts [ fuurjahunna]; that they should not display their [hidden] beauty [zinatahunna] except what [visibly of her beauty] appear thereof; that they should draw their veils over their [upper] private parts [ juyubihinna] and not display their [hidden] beauty [zinatahunna] except to their husbands, their fathers, their husband’s fathers, their sons, their husbands’ sons, their brothers or their brothers’ sons, or their sisters’ sons, or [what follows] next in line [nisa”ihinna], or the [temporary partner] whom their right hands possess, or male [persons] free of physical needs, or small children who have no sense of the shame of sex; and that they should not strike their feet in order to draw attention to their hidden [beauty] [zinatihinna]. O you believers! Turn you all together towards God, that you may attain bliss. (Nur:31) In stipulating the rules of how women are required to cover their body, the Book merely provides us with a lower limit.

The reason why only a lower limit is stated and what exactly this implies will be explained in detail later. Suffice it to say here that 4:31 allows, under certain circumstances, to transgress the lower limit of 24:31, which is similar to the case of contingent food taboos in Surat An’am. It is however different, as we mentioned, from the absolute rule that one must not ignore the limits of marital partners as provided in Surat Baqara.