Question
I quite understand the validity of the argument that prohibitive rulings could only be made if “a valid reason based on the Shari’ah (i.e. Islamic Law)” is available. What I do not understand is the criterion of inferring such a reason. Has it got to be established from direct textual evidence or can it be secondarily derived?
This is a very practical issue. It may be easily said on an intellectual level that there is no direct textual evidence of, let us say, women participating in sports. Therefore, we cannot really pass a judgement on its invalidity. However, there a lot of “etiquette” strings attached to it.
Should a state allow everyone to act on the basis of their own sense of Haya, rather “the[ir own] etiquette of appropriate self-presentation and behavior”? This could be true in private life but how can this “freedom of character” work in an Islamic environment. I just cannot but see that a Muslim authority has to describe those etiquettes in a well-defined manner even if they are only qualitatively described in the Shari’ah.
For example, a woman may decide that shorts and tee-shirt cover her sexual organs and bosom well. A man may decide that wimming trunks barely covering his groin area (and thus sexual organs) is the way to go in the pool. A woman may think that loose fitting will not help in gymnastics, therefore, may be she should go for the standard barely-clothed arragnement. All of these sports involve almost-compromising poses–then comes the question of audience.
What I am saying is that sooner or later, there will be a clash of what an individual determines to be modest or correct based on his (limited?) understanding of Shari’ah and what a Muslim state determines to be salacious for the collective society.
Finally, what would you have done if you were the Muslim adminstrator and a women’s marathon was going to take place in your jurisdiction with invitees from other culture who would not have the same (or no) understanding of the concept of Haya. I believe your answer to this could be mroe practical and instuctive than the previous answer.
Answer
You write:
What I do not understand is the criterion of inferring such a reason. Has it got to be established from direct textual evidence or can it be secondarily derived?
No one may prohibit anything that God and His Messenger has not prohibited. As such if it is not based on an explicit command of the Almighty and His Messenger then only an opinion relative to the general attitude towards a particular or similar thing can be given. This of course does not make it God’s law, rather, it is merely a religious opinion. However, assuming that even a related issue cannot be found wherein an opinion may be given then the tool of Ijtihad (i.e. process of decision making regarding issues not directly mentioned by the Shari`ah) comes into play. So if there is no mention of it in the Shari`ah (i.e. Islamic Law) and it is not discernable from it by compare and contrast examples then an opinion can be formulated based upon the scholars’ understanding and common sense approach to the derivation of the opinion. It can indeed be inferred on the basis of an individual’s understanding and inclinations, yet, unless there is a specific ruling passed by the Shari`ah on the issue, the opinion of the individual given on the basis of his understanding and inclination, regarding that subject, will not qualify as the Shari`ah. This opinion would be open to revision as well as of differences.
You write:
Should a state allow eveyone to act on the basis of their own sense of Haya, rather “the[ir own] etiquette of appropriate self-presentation and behavior”? This could be true in private life but how can this “freedom of character” work in an Islamic environment. I just cannot but see that a Muslim authority has to describe those etiquettes in a well-defined manner even if they are only qualitatively described in the Shari’ah.
The state is responsible for its citizens and its laws should be developed in the best interest of these citizens. Indeed everyone should act to their own sense of Haya (i.e. decorum of sexuality) but this does not negate the sense of responsibility a person has towards his community. Thus, a person may behave in a certain way that is acceptable in the privacy of his own home yet may not be accepted by society at large. In our homes the natural sense of Haya is far looser than when we are in public. The details need not be mentioned as it can be imagined how much more relaxed we are in our confines. The “Islamic environment” would be regulated by the state as it has the right to give its citizens the lifestyle they have chosen to live by in accordance to Islam. In other words, based on scholarly efforts and the agreement of society the state develops a set of rules that the majority agree on and thereby live in accordance. Anyone caught breaking such laws should be dealt with according what crime and punishments laws exist. Keep in mind in an Islamic state the Shari`ah would be the foundation and other laws would be corresponding to the spirit of Islam.
You write:
What I am saying is that sooner or later, there will be a clash of what an individual determines to be modest or correct based on his (limited?) understanding of Shari’ah and what a Muslim state determines to be salacious for the collective society.
In light of the above this point should now be clear. However an additional point to consider is that, from the perspective of the legislature, the rights of the collectivity supersedes that of the individual. Hence, the state must first and foremost take into consideration what is most beneficial to the community at large. If seen from this perspective then there would be no clash because the individual would recognize that he does not live in a vacuum by himself but rather shares his life with a multitude of people and must accept what is most harmonious with everyone.
You write:
Finally, what would you have done if you were the Muslim adminstrator and a women’s marathon was going to take place in your jurisdiction with invitees from other culture who would not have the same (or no) understanding of the concept of Haya. I believe your answer to this could be mroe practical and instuctive than the previous answer.
It really depends on the mores of the society. If it is acceptable to them I see no reason, since there is no objection to it in the Shari`ah, to forbid the activity. So long as modesty and respect of the Islamic spirit is present then I see no problem with it. If, however, the society objects to it then it would be my duty to disallow any such marathon, even though it is not against the Shari`ah.
I hope I have clarified the issue.
God knows best.