Modesty and Niqab in America: Ahkam vs Maqasid, Ethics vs Law
Posted Sep 1, 2010

Modesty and Niqab in America: Ahkam vs Maqasid, Ethics vs Law, ‘Ilm al ‘Adl, and Maqasid al Ghaib

by Dr. Robert D. Crane

  The Washington Post recently gave full page coverage to a Muslima in Albuquerque, New Mexico, who is the only person there who wears the niqab or face cover.  She writes, quite profoundly:  “In today’s society so much emphasis is placed on women’s bodies as sex objects and women waste so much time, money, and brain energy into what they wear and how attractive they will be, that it actually hurts the spiritual and mental development.  Covering is about equalizing the genders in public so that a women’s beauty is subverted and so that in public she is dealt with professionally and on respectful footing.  A women’s beauty and sexuality is in the confines of the committed, secure marriage.” 

  She writes further, “Islam is also a religion for all of mankind, and not just for individuals.  So modesty should be viewed in light of what is good for all of mankind and not just whether it is applicable on an individual basis.  But at the end of the day, Islam means submitting to Allah in everything, His will and desires over my own.  So since I am convinced that Allah has commanded this of me, I listen and I obey.  This is the main basis for why I personally cover.”

  This beautiful defense raises a number of other profound issues, especially divine purpose, how one understands it, the difference between ahkam or legal regulations and the maqasid or universal principles of Islamic jurisprudence, and even the relevance of the entire science and art of faith-based, compassionate justice known as ‘ilm al ‘adl.
  The renowned scholar, Shaykh Eric Winkel starts off the discussion by citing Ibn ‘Arabi’s verse, kulla yaumin huwa fi shay’n, “every moment he (Allah) is upon some matter”.  The shaykh concludes that the “yawm” is the shortest time period imaginable, and the “shay’n” is the smallest particle imaginable. So God is involved, he says, “directly in moving every particle every where all the time.  For a cesium atom, that means vibrating it 10 000 000 000 times each second…and how many atoms are there? vibrating how many times each second?  And God is closer than you are to you, closer than the jugular vein.  So how far to we have to ‘go’ to get access to the divine and the divine instructions for every moment of our lives?  So I think the best thing is seeing us asking questions and wondering where this or that is appropriate in this or that moment.  There would be times when the believer covers, and times when the believer wouldn’t. The hukm applies to the hal, the principled behavior to the moment”.

  This approach to the issue of hijab is employing a “hukmite” or “ahkami” paradigm of thought based on bottom-up analysis, as contrasted with a “maqsudi” approach proceeding from the top down.  In other words, he goes from the particles to the whole, rather than in the tawhidi episteme from the whole to the particles.  In the end, both amount to the same thing, because the great scholars of Islam, until the entire concept of holistic jurisprudence died out 600 years ago, derived the governing principles of ethics from analysis of the particulars in the Qur’an and sunna.  Their application, however, was, in turn, governed by these higher principles.  This is the substance of a classical discipline that we might term ‘ilm al ‘adl, which is the science and art of justice. 

  Recently I have almost completed an entire book on the subject, in addition to two other books that devote several chapters to it, namely, The Natural Law of Compassionate Justice: An Islamic Perspective, which became available on Amazon this week, and a 700-page college textbook, Islam and Muslims, which goes to the printer, in sha’a Allah, next week.

  Within the architectonics of this approach the rules on modesty must be applied within the context of several maqasid, especially haqq al karama or the universal purpose (or universal or irreducible essential) of human dignity, as well as haqq al din or freedom of religion, haqq al nafs or respect for the sacredness of the human person, and haqq al nasl or respect for the human community, which derives from haqq al nafs.  Indirectly, another governing principle is haqq al ‘ilm or haqq al ‘aql, which is respect for knowledge, with a secondary level of hajjiyat which includes freedom of speech, publication, and assembly.

  Actually, still another maqsad involved in wearing the hijab is haqq al hurriyah, which concerns self-determination or political freedom.  This both limits the legitimate power of government to control human action and provides guidelines (the maqasid) to require governmental action.

  Shaykh Eric quite rightly point out that every human thought and action is unique, just like every atom, boson, and quark and every planet, solar system, galaxy, and group of galaxies.  Therefore the application of the Qur’an, however one may understand it within the coherence, nazm, of the Qur’an and of the matn or substance of ahadith that reflect this coherence, must apply uniquely to every person.

  The sentinel words or principled words of the Qur’an, according especially to the research by Dr. Heba al Musharraf at Princeton University, are reflected in every known language, as far as we know, going all the way back to the so-called Nostratic language of the 2,000 humans who according to DNA analysis were the only human survivers of some unknown event 125,000 years ago.  The meaning of the specific sentinel derivatives in all of these languages is both general as well as contextually and diversely relevant.

  Contextual subjectivity, even though based on the absolute objectivity of truth as humans can conceive of it, frightens those who have no awareness of Allah because it would seem to make us independent of Allah as gods unto ourselves. This subjectivity, however, is the necessary concomitant of our freedom to choose, which makes us at least potentially superior to the animals and even of the angels.  This subjectivity also gives us the responsibility to choose, for otherwise we would not have been given this power.

  This maqsudi approach, of course, brings into play the contextual differentials of time and space involved in diversity of cultures, whereby in some cultures a loincloth may be the only essential of modesty, whereas in Saudi Arabia men tend to go ape if a woman’s face is uncovered. 

  One result of the maqsudi approach is the concept that everything must be interpreted as a balance among the maqasid.  Nothing is mubah or indifferent to them.  Everything fits within the spectrum of halal-haram and mandub-makruh in terms of ethics.  Legal requirements are another matter, because the legal requirements are the minimum that a given society considers to be legitimately enforceable by the monopoly of coercion that inheres as the right of every government.

  This is why we should support Heba’s right and even personal duty to wear the burqa, just as we must support any other woman’s right and even responsibility not to.  Each person has the right, as well as the duty if one is a scholar, to weigh one’s actions within the guidelines both of the legal requirements of the ahkam and of the broader requirements of the maqasid within the context of one’s own culture.  As the Prophet Muhammad, salla Allahu ‘alayhi wa salam, put it, everything in the common law or ‘urf in any country is legal unless it contradicts the principles of Islamic jurisprudence. 

  This might seem to promote anarchy, but in fact it should lead to the opposite, because the real cause of civilizational decline and death is both the refusal to admit any limitations derived from divine authority and the corresponding insistence that all ethics and law are human creations.  This refusal derives from a refusal to uses one’s reason in identifying the role of knowledge, which includes philosophy and theology.

  This ‘ilm al ‘adl is the missing dimension in secular academia, secular think-tanks, and secular policy-making.

  Most simply, however, the solution to living a good life is to develop taqwa or loving awe of God and of divine revelation or wahy for all humankind, as well as to respect the ilham or inspiration that God may grant to guide one’s own life. 

  Relevant in this regard are the ancient philosophers who said that if God would not sustain us constantly, we and the entire universe would disappear in less than what we now call a nanosecond.  Of course, someday it will end when the divine purpose at the level of being has exhausted the derivative purpose at the lower level of existence.  This is the realm of the ghaib, of which we have no knowledge, though perhaps we should admit its operation in the unknown maqasid al ghaib.