It is important to pose the question how to understanding Qur'an? Is it enough to quote a verse from here or there on a particular subject? This is what is generally done even by Islamic scholars. In fact it is never enough and creates great deal of misunderstanding and often goes against the very spirit of the Qur'an. Qur'an is a divine scripture and can never be understood by quoting piecemeal verses.
Then the question is how best to understand Qur'an. When the Prophet (PBUH) was alive Muslims would ask him the meaning of the verse. Whatever he said was later collected in the form of ahadith. All the commentators after the death of the Holy Prophet quoted these ahadith to explain the meaning of the verses from the Qur'an. Thus came into existence the vast tafsir literature. The later commentators simply repeated the earlier tafasir i.e. commentaries hardly adding anything.
It is important to note that Qur'an has to be understood not only in the context in which the verses were revealed but also at different levels. The Qur'an deals with number of subjects at social, cultural, spiritual and moral levels. It deals with certain subjects at the given social level but also treats the same subject at moral levels too thus adding transcendent dimension to it. Thus it will be seen that the Qur'an deals with a subject not only at one but at multiple levels. One cannot do justice to the Qur'anic injunctions without understanding them at different levels.
The compilers of the Shari'ah laws also adopted mono-level approach and thus created problems difficult to tackle in subsequent periods. What is worse the followers of these laws adopt very rigid approach and consider earlier formulations by great Imams as immutable thus injuring the very spirit of the Qur'an. It not only freezes Qur'an at a given period of time but also creates problems for its followers. It is therefore, highly necessary to understand Qur'an at different levels even while making laws on the basis of divine injunctions.
Let us take the concept of qisas (retaliation in equal measure) in the Qur'an. It is on this basis that the shari'ah law provided for eye for eye, nose for nose and ear for ear approach. This provision in the Qur'an is at one level but if seen on moral level, Qur'an considers pardoning the offender morally higher than seeking retaliation. Sometimes realistic dimension and moral dimension is contained in the same verse and some times in different verses.
Thus let us examine the verse 2:278 about qisas in matters of murder (qatla). The verse runs as under: "O you who believe, retaliation is prescribed for you in the matter of the slain: the free for free, and the slave for slave, and the female for female. But if remission is made to one by his aggrieved brother, prosecution (for blood-wit) should be according to usage, and payment to him in a good manner. This is an alleviation from your Lord and a mercy. Whosoever exceeds limit after this, will have a painful chastisement."
If we analyse the above verse first we observe that the Qur'an keeps in mind the tribal mores of time. In fact retaliation in equal measure (qisas) was a tribal practice and tribal way of doing justice to the aggrieved. The Qur'an takes realistic as well as moral view of such practices. On realistic level it retains the tribal practice of course by reforming it to make it rigorously just and then treats it at moral level invoking higher moral values.
Here Qur'an while accepting tribal practice of retaliation reforms it by making it more just by requiring free for free and slave for slave and woman for woman. Often the tribals used to save the life of a free man by offering life of a slave but Qur'an made it necessary to kill a free man for free and a slave for slave. This was a piece of reform. But the Qur'an goes further and invokes moral value by proposing blood money if the aggrieved pardoned the murderer and accepted blood money. This is certainly morally higher than seeking retaliation and it is described as a mercy from the Lord. But at the same time it warns that "whosoever exceeds limit after this, will have a painful chastisement."
Thus here in one verse itself Qur'an treats the matter on three levels namely realistic level with added dimension of reform, than on moral level by invoking the higher moral value of mercy and then again at yet another level of painful punishment if one exceeds limits after all this. Thus it is not proper to rigidly follow any one level rigidly ignoring all other levels. Thus the Qur'an advocates realistic, reformative and moral approach whatever suits the context.
Generally Muslims do not follow this methodology of the Qur'an and get stuck at one level thus inviting criticism from those who are inimical to Islam. Framing laws is a very socially responsible job and has to be done with awareness of this responsibility. Also, it should be noted that law should not be rigid and no law can serve for all the times to come, however carefully it formulated. The objective conditions keep on changing and law must keep pace with changing conditions.
Also, it is important to note that while values are immutable, laws based on those values, can never be permanent. Unfortunately Muslim scholars or traditional ulama do not understand the difference between values and laws based on those values. Values are goals while laws are tools to reach the intended goal. The tools can and should change from time to time.
If we can reach our destination say by horse today, we will not hesitate to reach it by train or plane next day. Destination will remain same but tools to get to the destination will keep on changing. Law is nothing but tool. Law cannot remain unchanged and if it remains unchanged despite changing conditions, it will defeat the very purpose. A law maker has to be aware of this and examine objective conditions and see if it is fulfilling the conditions for which law was made.
In case of shari'ah law this is what is lacking. Generally our ulama argue that it being divine law it is immutable. They forget that the early jurists who formulated laws on the basis of Qur'anic injunctions were human beings and no human being can be above human limitations. Thus shari'ah law is nothing but sincere human approach to divine injunctions as contained in the Qur'an. It was only in modern times that enabled us to understand this. One has to take religion on different levels ? sociological, moral and transcendent. Sociological approach to religion is as important as moral. Moral does not operate in vacuum, it operates in concrete social conditions. It is for this reason that the Islamic jurists had accepted the concept of ?aadat i.e. customary law of given society in which shari'ah law operates. Thus in many cases customary law can prevail.
But customary law itself is inherited from past and thus is static. In modern world neither customary law inherited from past customs nor shari'ah law as formulated in early Islamic society by the Islamic jurists, can suffice. We have to re-think legal issues continuously in changing social conditions. However, his re-thinking cannot be arbitrary or contrary to the Qur'anic values.
It can be explained with simile of construction of a structure. While foundations remains the same the design of the super structure can go on changing. Values provide the foundation and foundation should be made stronger so that the super -structure can persist longer. For example justice is foundation and laws of marriage, divorce etc. can be changed to make them more just. We often confuse priorities. For us super-structure becomes more important than the foundation.
Polygamy has become more important in Islamic world than the concept of justice emphasised by the Qur'an. Multiple wives are justified even if it violates concept of justice which is much more fundamental than polygamy. Thus the question of gender justice is very important today. In Islamic world it has become most important issue. The gender relations in medieval ages were very different from what they are today. The shari'ah laws formulated in those days were based more on the given gender relations as prevailing than on the basis of transcendent concept of gender relations in Qur'an.
Like other questions the gender question is also treated on different levels in Qur'an. The Qur'an, in its divine wisdom, could not have ignored gender relations obtaining in those days. Thus it treated gender question also on realistic level and ten on moral and transcendent level. Let us take example of marriage and divorce in Qur'an.
Qur'an made marriage a contract between husband and wife. It is important to note that Qur'an greatly improved upon the tribal customary law while adopting it on realistic ground. In tribal customary law, law of marriage was heavily weighted against woman. She could not negotiate her own marriage except through the agency of her marriage guardian who happened to be her father or grand father or elder brother or uncle in the absence of her father. The institution of marriage guardian (wali) was very fundamental in tribal customary law.
But Qur'an does not mention the institution of marriage guardian and gives this right directly to women. Secondly, meher (dower) amount was negotiated by the guardian and was taken by him whereas Qur'an gives woman the right to negotiate meher amount and it is she who is entitled to it rather than her marriage guardian. Thus this was an important reform to make the law of marriage more just.
Also, Qur'an elevates marriage to a higher moral plane despite its basic contractual nature by invoking moral values like love and ihsan. In verse 7:189 we find the following: "It is He Who created you from a single soul and of the same did He make his mate, that he might find comfort in her." Thus husband finds comfort in his wife and further the verse goes on to say, "So when he covers her she bears a light burden, then moves about with it. Then when it grows heavy, they both call upon Allah, their Lord: if Thou givest us a good one, we shall certainly be of the grateful."
This clearly refers to woman getting pregnant and then both pray to Allah to give them a good child (salih). Thus marriage is lifted to a moral plane and made to develop firm bonds so that husband can find solace in wife and together create good children to perpetuate human progeny. Marriage is thus not merely for satisfying sexual urge but much more than that ? a bond of love and an instrument for perpetuating human progeny. Thus marriage, according to the Qur'an, is both a contract and also a moral bond. Qur'an says in 30:21, "And of His signs is this, that He created mates for you from yourselves that you might find quiet of mind in them, and He put between you love and compassion." Marriage without love and compassion cannot be lasting bond between husband and wife.
However, Qur'an does not overlook the situation in which man and woman can no longer carry on with each other and divorce becomes necessary. Hence it approves of divorce in such situations and here contractual nature of marriage comes to their help. In some religions marriage is treated as sacramental and thus the bond can never be broken. That makes lives of both partners hell.
The Qur'an while treating marriage more than contract, does retain its contractual nature too and permits divorce. But it does not make divorce a bitter rupture between husband and wife and advises man to live with her in ma'ruf (kindness) or leave her with kindness, not with bitterness. Thus whatever meher or gifts he has given to her, should not be taken back. Thus verse 2:231 says, "And when you divorce women and they reach their prescribed time, then retain them with kindness or set them free with kindness and retain them not for injury."
Thus we see the moral plane to which marriage and divorce have been lifted by the Qur'an. However, the Muslim jurists overlooked this moral aspect of marriage and divorce in Qur'an and allowed marriage to be broken by pronouncing three words of talaq even in anger and bitterness. Thus if we see the moral nature of divorce in Qur'an triple divorce has no place at all.
The Qur'an also instituted the institution of arbitrator to make living together or separation after all issues are looked into by arbitrators from man's and woman's side. Thus in verse 4:35 it is said, "And if you fear a breach between the two, appoint an arbiter from his people and an arbiter from her people. If they both desire agreement, Allah will effect harmony between them."
Thus the Qur'an does not like a sudden rupture of relationship between husband and wife in a state of anger but requires harmony and agreement as far as possible. This purpose is totally defeated by allowing triple divorce in one sitting. Divorce should not be seen merely as a breaking of contract in an arbitrary fashion but bringing about separation as a last measure after all efforts to bring about harmony between the two. Thus any law of divorce should be based on moral approach of the Qur'an.
This moral approach becomes even more clear from the verse 2:229 wherein Qur'an states that, Divorce may be (pronounced) twice; then keep (them) in good fellowship or let (them) go with kindness. And it is not lawful for you to take any part of what you have given them, unless both fear that they cannot keep within the limits of Allah. Then if you fear that they cannot keep within the limits of Allah there is no blame on them for what she gives up to become free thereby. These are the limits of Allah, so exceed them not; and whoever exceeds the limits of Allah these are the wrong doers."
Thus basic thing is limits of Allah and what are the limits (hudud) of Allah but limits of morality? Thus marriage and divorce should not be treated merely as legal contract to be entered into and broken at will without any regards to moral values involved in these acts. Unfortunately our jurists treated marriage and divorce as strictly legal devoid of moral values and that is why arbitrary divorce or taking up multiple wives at a time is permitted strictly on legal grounds.
Similarly, Qur'an treats gender question not merely as of man and woman but of deeper human and spiritual one. Functionally and at realistic level it describes it in the verse 4:34 and this verse has been extensively quoted by jurists to prove her subordinate position. But as pointed out Qur'an treats such important questions at different levels and no final conclusion could be drawn simply by reading this verse.
At deeper and spiritual level gender relationship is described further in the verse 33:35. This verse treating the question at spiritual level says, "Surely men who submit and the women who submit, and the believing men and believing women, and obeying men and obeying women, and the truthful men and truthful women, and the patient men and patient women, and the humble men and the humble women, and the charitable men and the charitable women, and the fasting men and fasting women, and the men who guard their chastity and the women who guard, and the men who remember Allah much and women who remember ?Allah has prepared for them forgiveness and a mighty reward."
Thus gender relationship on spiritual level is quite equal and without any discrimination. The nature of relationship in the verse 4:34 is purely functional and therefore, not applicable permanently. It will change with the function but the relationship described in 33:35 is on an elevated and spiritual level and permanent. Thus men and women are equal in every respect in the eyes of the Qur'an. Her humanity and human dignity in no sense is lesser than that of man.
The Islamic jurists treated women as unequal on the basis of certain verses like she being half witness or she receiving half the share in inheritance etc. Such verses in no way prove her inferior to man as far as her human dignity is concerned. Also, there is great misunderstanding about these verses also. It is wrong to designate her as half witness as it pertains only to financial matters as she had no financial experience and moreover it is not at all obligatory but recommendatory in nature. Today women also are financial experts and head even banks. How can then she be treated as half witness in financial matters also? The verse was of recommendatory nature in conditions of those times. In no way it can be cited to prove her inferiority.
Even portion in inheritance is no proof of her inferiority as it also had to do with her being non-earning member in those days and hence due to her dependence on father and on husband after marriage. Qur'an had made her maintenance obligatory on her father before marriage and on her husband after marriage and on her sons after death of her husband, if she had grown up children. It has nothing to do with her being woman. Today in most of the cases she earns herself and contributes to the family wealth and there is no sin in revising her portion of inheritance.
The Qur'an created for women right to inheritance in three capacities: as daughter, as wife and as mother. Before Islam she could not inherit at all. Since in those days she was not contributing to the family wealth and was merely dependent on male members of the family. This (i.e. creation of right to inheritance in three capacities) itself was a revolutionary step. Thus this right could be further advanced today in the changed condition. It will in no way injure the spirit of the Qur'an; on the contrary it will enrich it.
It is very important to note that Qur'an gave values for humanity, which did not exist in Arabian desert before Islam. The only value which was most important was what was called in Arabic as muruwwah which is derived from the word mar'a i.e. man. Thus muruwwah would mean manly qualities which, mainly included bravery and generosity. But other values were not recognised or not in currency. Thus women had no place as far as these values were concerned. They were mainly concerned with men.
The Qur'an, on the other hand gave values like equality, justice, benevolence, compassion, wisdom, tolerance towards other faiths, human dignity, love and truth. These values were meant to elevate human behaviour to a much higher moral plane. It also attacked negative virtues like arrogance, tyranny and sense of superiority over others. These negative virtues were widely prevalent among Arabs.
In matters of punishments like cutting of hands or flogging for rape etc. These punishments also have been treated quite mechanically missing the moral spirit of Qur'an. These punishments also, like other things, should be treated at different levels. Basically the Qur'an's emphasis is on moral reforms of the offender rather than punishment. But punishment is necessary if the offender refuses to reform and continues to commit offence.
Thus the verse 5:38 should be read in conjunction with the next verse i.e. 5:39. The later verse says clearly, "But whoever repents after his wrongdoing and reforms, Allah will turn to him (mercifully). Surely Allah is Forgiving, Merciful." Thus more emphasis is on reform and repentance than on punishment. The Prophet (PBUH) always gave the offender the chance to reform and repent, before punishing him/her. However, this spirit was subsequently lost and emphasis came to be on punishments. For rape or adultery four witnesses were required who witness the act of sexual penetration which is impossible to bring and self confession was the only way left. The verses on rape and adultery or false accusation against chaste women from 4:2 to 4:9 should also be read along with 4:10 which talks about Allah's mercy and wisdom.
Throughout Islamic history shari'ah occupied central role than moral values. It is Sufis who laid more emphasis on moral values than the ?ulama who exhibited their power through shari'ah. What is central to the Qur'an is prevention than punishment. Punishment is the last resort.