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Lecture by Prof Dr Omar Hasan Kasule, Sr. at the Kulliyah of Medicine, International Islamic University Kuantan Pahang on Saturday 18th July 1998
OUTLINE
PURPOSE OF PREVENTING ZINA
Protection of the family institution
Social controls vs zina:
Encourage ghiira
Emphasise gender identity
Limit free mixing (ikhtilaat)
Privacy of the home
Prohibit seclusion of male & female (khalwat)
Lowering the gaze (ghadh al basar)
Prohibit indecent exposure (tabarruj)
DEFINITION OF AWRAT
Different situations: gender, age
Exceptions: social status, fear of temptation, family relationship, social necessity
PRINCIPLE OF INTENTION/MOTIVE (MAQSAD)
Underlying intentions and not literal interpretation
Wrong intention means the means is wrong
PRINCIPLE OF HARDSHIP
Necessity legalises the prohibited
Permissivity in hardship
Prevention of harm has priority over obtaining a benefit
Choice of the lesser of two harms
Public interest has priority over personal interest
NECESSITY IN A MEDICAL SITUATION
Interaction in the medical environment
Separate facilities: expense, logistics, equality, relatives
PRACTICAL ISSUES FOR DISCUSSION
MEDICAL CO-EDUCATION
Teacher-student
Student-student
Teacher-teacher
INTERACTING WITH COLLEAGUES OF THE OPPOSITE GENDER
Norms: dress, speaking, general conduct
Class-room etiquette
Social interaction
Laboratory: experiments on fellow students
Clinical skills laboratory: learning clinical skills by examining other students
Operation theater
PATIENTS OF THE OPPOSITE GENDER
Clinical management: taking history, physical examination
Diagnostic procedures & Operations
Choice of physician: Muslim of opposite gender vs non-Muslim of same gender
1.0 THE PURPOSE OF PREVENTING ZINA
Two reasons for covering orate: There are basically 2 reasons for covering orate: (a) prevention of zinnia which destroys the family (b) respect for the human being. The first reason is the more important one and will be the only one discussed in the rest of this paper.
Destruction of the family: There are behaviors and habits associated with failure to cover orate properly that weaken and eventually destroy the family. Since a successful family is the basic building block of society, its destruction means destruction of the whole society. Family destruction could be due to internal or external factors. The internal factors are zinnia and its antecedents. The external factors are: socio-economic and political stresses. Minor zinnia is committed by the eye, the ear, the tongue, the mouth, the limbs, and the hands. These organs are involved in antecedents to the actual crime of illegal sexual intercourse which is one of the major sins (al kabair).
"eyes commit adultery and their adultery is the evil look. Ears commit adultery and their adultery is listening to lustful talk. Hands commit adultery and adultery is moving towards sin. The legs commit adultery and their adultery is steps towards adultery. The adultery of the tongue is lustful talk. The adultery of the heart is evil desire. In the end the sexual organs either confirm all of this or disapprove" Muslim
The Qur'an severely condemned approaching zinnia: ' Nor come nigh to adultery: for it is a shameful (deed) and an evil opening the road (o other evils). 17:32'. It is a principal of Islamic law that what leads to haram is also haram. Therefore all antecedents of zinnia are considered haram.
Protection of the family: Certain regulations are necessary to protect the family from evils that will lead to its destruction. The following measures are needed: (a) Preventive measures: education, tarbiyyah, early marriage, following the sharia, maintaining the privacy of the home (b) Avoiding zinnia and its antecedents: modesty in dress, no ikhtilaat, no khalwat, no looking at the opposite sex with desire, huduud as deterrent, and privacy of the home.
Social and legal controls of zina: A community that allows sexual misconduct (idh'har al-zina) in public will soon find its family morals corrupted. Throughout human history, communities and even whole countries have adopted controls to prevent zina. Some were derived from religion whereas others evolved from human experience. These controls may be in the form of enforceable laws or may be customs and social controls that are informal. The social controls against zina are more powerful than the legal ones. Social disapproval is more effective than legal deterrent. The immediate family and the larger society exercise social control. Toleration of zina and its antecedents violates this control. Discussed below are legal and social controls that prevent zina.
Encouragement of ghiira: GHIIRA for a wife, a daughter, and a sister is one of the social controls that prevent zina. It is a strong motivation to make sure that relatives do not commit sexual crimes. The Prophet encouraged ghiira and considered its absence blameworthy. He however warned that it should not be carried to illogical extremes.
Prohibition of trans-sexual dressing and behaviour (takhannuth stirjaal) undermines the emotional and private bond between men and women by blurring the distinctions between them. It removes the instinctual gender identity. It facilitates zina by making it easy for a man to be among women undetected. Each gender should maintain its psychological, emotional identity and physical appearance in manners of dress, walking or speaking. Trying to blur the distinction interferes with the complementality that is supposed to exist between the two genders. The complementality is necessary to ensure cooperation. Blurring the differences could also make sexual misconduct easier
Limiting mixing of the 2 genders (ikhtilat): The Qur'an forbade free mixing of the gender in general:
And when ye ask (his ladies) for anything ye want ask them from before a screen: that makes for greater purity for your hearts and for theirs. 33:53,
Free mixing of the sexes (ikhtilat) could lead to illegal temptations and sexual crimes. Islam fosters a bi-sexual society. This is however not absolute. There are cases when social intercourse between unrelated men and women in necessary. It is allowed but with strict precautions to prevent any transgressions. A woman is for example allowed to serve male guests according to a hadith reported by Bukhari from Sahl Ibn Sa;d al Ansari. This is however allowed where there is no fear of temptation. The opposite extreme of a uni-sex society advocated by feminist groups in the west is rejected by Islam. A bisexual society does not prevent the women from being an active member of society. She can pursue her interests even outside the home provided she observes the rules of hijab. Hijab gives the women protection from sexual harassment so that she can undertake her duties outside the home without any fear.
We learn from hadiths that women at the time of the prophet and the rightly-guided khulafahs were active participants in the community. They attended the mosque and even went to war. We know that they carried water for the fighters in the early battles of Badr and Uhud and also treated the casualties. Some wounded soldiers were treated and carried back to Madina by women. Women used to attend the religious classes held by the prophet alongside men. They found this inconvenient especially when they wanted to ask questions. They asked for their own day with the prophet and he granted their wish. Women were present and involved in both pledges of 'Aqaba. On one day of the eid after the prophet had delivered his sermon he moved to the area where women were and gave them a special address. A woman challenged Omar Ibn al Khattab in the mosque in Madina while he was speaking on the minbar. There are many such examples to prove that as long as they dress and behave with decency Muslim women can take part in the public life of the community.
Guarding the privacy of the home: Un-related persons should not enter homes without permission. Their entry violates the privacy of the home and could be a source of unnecessary temptations.
O ye who believe! enter not houses other than your own until ye have asked permission and saluted those in them: that is best for you in order that ye may heed (what is seemly). If ye find no one in the house enter not until permission is given to you: if ye are asked to go back go back: that makes for greater purity for yourselves: and Allah knows well all that ye do. It is no fault on your part to enter houses not used for living in which serve some (other) use for you: and Allah has knowledge of what ye reveal and what ye conceal. 24: 27-29
Forbidding seclusion of a man with an unrelated woman (khalwat) is a strong temptation for evil and should be avoided. The prophet forbade a man to be with an unrelated woman in the absence of a third person. When a man is in isolation with an unrelated woman shaitan is between the two and could lead them astray (hadith reported by Imaam Ahmad on the authority of Amir Ibn Rabiah). The Qur'an ordered men to talk to the prophet's wives behind a veil (33:35). The prohibition is so severe that even even some male relatives such as brothers, cousins, and nephews of the husband are included. (reported by Bukhari and Muslim).
Lowering the gaze (ghadh al basar): Looking at the opposite sex with desire is prohibited. The eye is a great communication organ. The Qur'an ordered Muslim men and women to lower their gaze (ghadh al basr)
Say to the believing men that they should lower their gaze and guard their modesty: that will make for greater purity for them: and Allah is well acquainted with all that they do. And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their beauty and ornaments except what (must ordinarily) appear thereof. 24:30-31
Two aspects are covered in these verses: lowering the gaze and guarding the sexual organs. Lowering the gaze could be complete or partial. It is partial because of practical necessity. Guarding the sexual organs is complete. Lowering the gaze doses not mean closing the eyes. It means being careful not to look fixedly or lustfully at the opposite sex. Eyes commit minor zina by lustful looks according to a hadith of the prophet reported by Bukhari.
Prohibition of indecent exposure (tabarruj): affects the family negatively. It causes sexual stimulation that may lead to zina. It is a form of covert zina involving the eyes and other sensory organs. One of the ways of preventing lustful looks is covering what is considered nakedness (awrat). Both men and women must be modest by covering their awrat. Looking at the awrat of another person is forbidden whether that person is of the same or opposite gender. The prohibition includes both looking with or without desire (hadith reported by Muslim, Abu Daud, al al Tirmidhi). As part of preventing possible illegal relations, display of adornments that enhance natural beauty is restricted by the Qur'an:
And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their beauty and ornaments except what (must ordinarily) appear thereof; that they should draw their veils over their bosoms and not display their beauty except to their husbands their fathers their husbands' fathers their sons their husbands' sons their brothers or their brothers' sons or their sisters' sons or their women or the slaves whom their right hands possess or male servants 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 ornaments. And O ye Believers! turn ye all together towards Allah that ye may attain Bliss. 24:31
O prophet! tell thy wives and daughters and the believing women that they should cast their outer garments over their persons (when abroad): that is most convenient that they should be known (as such) and not molested: and Allah is Oft-Forgiving Most Merciful. 33:59
Ornamentation should be confined to spouses within the household. Covering awrat and hijab are customarily more emphasized more often in females than males. This had led to a mistaken impression that women need more control because they can not be mistrusted. Women and men in Islam are equally tempted by shaitan. The reason for the special emphasis on women's decent dressing and behavior is to protect them from the sexual aggression of males.
2.0 DEFINITION OF AWRAT
Different situations: The definition of what is awrat and should therefore be covered varies by gender and other factors discussed below. It is forbidden for a man or woman to show their awrat to any other person, man or woman, who is not a spouse except in cases of necessity or specific exceptions mentioned below. This is gleaned from hadiths of the prophet forbidding men and women from being naked in public baths (al Tirmidhi, Ibn majah, Abu Daud). Once what is awrat is defined, then a person whether man or woman is allowed to look at the non-awrat parts of the body provided there is no lust in such a look. Thus innocent non-repeated or purposive looks are permitted. However when the looks are likely to lead to temptations then restrictions are imposed. Covering of awrat also includes making sure that the clothing does not define the underlying figure (33:59). What should not be seen should also not be touched.
Gender: the awrat of the man is different from that of a woman in some situations. In general the man's awrat is what is between the navel and the knee. Maliki scholars consider what is between the navel and above the knee since they do not include the knee as part of awrat. The woman's awrat is her entire body except the face and the hands. The face and hands of a woman are considered parts of the body that are normally exposed for the purposes of social interaction and working. Exposing the face helps in establishing identity so that a person can not misbehave in public in the confidence that no one will recognize her. This issue of identity is so important that in hajj where there are many people and establishing identity becomes even a more urgent requirement, it is strictly forbidden for a woman to cover her face. Women with other Muslim women could expose their head, hair, neck, and arms which are normally considered part of awrat. The rules about exposing awrat to a non-Muslim woman are the same as for the man.
Age: The rules of covering awrat are relaxed for the elderly who have already passed the age of sexual temptation, being tempted or tempting others (24:60). This however does not excuse them from being decent. Similarly the rules are relaxed for children who are not yet aware of sexuality.
Exceptions based on social status: There is relaxation about the awrat of female servants working indoors in the company of other women. They could expose what is normally forbidden if their work necessitates that. They could for example expose their head, neck, legs, and arms. The rules could also be relaxed in cases of blind men for obvious reasons. Some relaxation is also permissible for elderly male servants who on account of their age, social status, or physical disabilities are considered to have no sexual desires or sexual temptation.
Exceptions based on fear of temptation: It is considered decent for a man to cover his legs and also the upper part of the body although these are not part of the awrat. This is more urgent he is young and sexually attractive. A stunningly beautiful woman should cover her face while in public for her own protection from embarrassing gazes of on-lookers. Covering the face could also prevent some temptations. This should however be the exception rather than the rule. In the view of the increasing evil of homosexuality and lesbianism, the relaxation of rules if one is with members of the same gender should be re-examined.
Exceptions based on family relationship: The rules about looking at the awrat of women are relaxed for close relatives for whom there is no fear of sexual temptation on the basis of consanguinity. The exceptions are 12 in number: spouse, father, father of husband, sons, husband's sons (stepsons), brothers, brother's sons, sister's sons, other Muslim women, female servants, male servants with no sexual desire, and children who are not yet aware of sexuality. The woman can expose to the categories of persons above those parts of her body that must be uncovered for efficient performance of in-door work. Some scholars have interpreted this to mean what is between the navel and the knee. This is however a minority opinion. We feel that what is between the navel and knee can be exposed only to the husband.
Exceptions based on social necessity: There are situations in which the rules about looking at another person's awrat are relaxed. Two general principles of law (qawaid fiqhiyyat) guide us in this: the principle of intention (maqsad) and the principle of difficulty and necessity (mashaqqat & dharurat). We will discuss the general theoretical frame-work for the two principles and then discuss their application to the medical situation.
3.0 THE PRINCIPLE OF INTENTION / MOTIVE (MAQSAD)
The principle of motive/intention states that each action is judged by the intention behind it (al umuur bi maqasidiha). This general principle gives rise to several sub-principles: (a) What matters are intentions (maqasid) and underlying meanings (ma’aani) and not literal terms (alfaadh) or structures (mabaani). The terms or words used are symbols of the underlying meaning. If there is a contradiction between the term and the meaning, it is the underlying meaning that matters (b) means are judged with the same criteria as the intentions (al wasail laha hukm al maqasid), if the aim (qasd) is wrong the means (wasiilat) is wrong.
4.0 THE PRINCIPLES OF HARDSHIP (MASHAQQAT) & NECESSITY (DHARURAT)
The principle of hardship, mashaqqa states that hardship mitigates easing of the sharia rules and obligations (al mashaqqa tajlibu al tayseer). Allah the law-giver knows that humans are inherently weak. Humans are thefore not obliged beyond their abilities in cases of hardships (la takliif fawqa al taaqat). The religion of Islam is easy (al ddiin yusr) and anybody who tries to complicate it gets defeated. Taking extreme stands is forbidden (la ghuluwwu fi al ddiin). The following are derived sub-principles:
Necessity legalizes the prohibited (al dharuraat tubiihu al mahdhuuraat). Necessity is defined as what is required to preserve the 5 Purposes of the Law (ie religion, life property, property, and intellect). If any of these 5 is at risk, permission is given to commit an otherwise legally prohibited action. Committing the otherwise prohibited action should not extend beyond the limits needed to preserve the purpose of the law that is the basis for the legalization (al dharuraat tuqaddar bi qadriha). Necessity however does not permanently abrogate rights, obligations, or rules of sharia. These must be restored, recompensed, or resumed in due course. Necessity only legalizes temporary violation of rights (al idhtiraar la yubtilu haqq al ghair). The temporary legalization of the prohibited action ends with the end of the necessity that justified it in the first place (ma jaaza bi ‘udhri batala bi zawaalihi). This can be stated in an alternative way: if the obstacle ends, enforcement of the prohibited resumes (idha zaala al maniu, aada al mamnuu’u).
When a hardship situation is restrictive, the law is permissive and eases the situation (al amr idha dhaaqa ittasa’a). Possible abuse of this sub-principle is restricted by the sub-principle: when a situation is permissive, the law is restrictive (al amr idha ittasa’a dhaaqa). In practical terms this means that the law is permissive only to the extent of the hardship and no more as explained above (al dharuraat tuqaddar bi qadriha).
Prevention of a harm has priority over pursuit of a benefit of equal worth (dariu an mafasid awla min jalbi al masaalih). If the benefit has far more importance and worth than the harm, then the pursuit of the benefit has priority.
The lesser of two harms is selected (ikhtiyaar ahwan al sharrain). If confronted with 2 actions both of which are harmful and there is no way but to choose one of them, the one with lesser harm is committed in order to block the way for the bigger harm. A lesser harm is committed in order to prevent a bigger harm (al dharar al ashadd yuzaalu bi al dharar al akhaff). This also implies that an individual could suffer in the interest of preventing a public harm.
Public interest has priority over individual interest (al maslahat al aamat muqaddamat ala al maslahat al khaassat). The individual may have to sustain a harm in order to protect public interest (yatahammalu al dharar al khaas li dafiu al dharar al aam)
What is illegal to get, use or possess is also illegal as a gift or a trade good (ma haruma akhdhuhu, haruma itauhu).
An action is still illegal even if someone else is made to carry it out (ma haruma fi’iluhu, haruma talabuhu)
5.0 THE PRINCIPLE OF NECESSITY IN A MEDICAL SITUATION
The medical profession both in training and practice gives rise to unique situations in than men and women by necessity have to interact in a confined space over a prolonged period of time. In such a situation some rules about mixing and lowering the gaze become difficult but not impossible to observe.
The ideal situation would be to have separate medical schools and medical treatment facilities for men and women. This is however due to several practical considerations. (a) Separate facilities based on gender would be prohibitively expensive. (b) Women-only facilities would be of lower standard than male facilities because women caregivers in addition to their medical careers have to devote time to their duties as mothers and wives. The biological phenomena of menstruation, pregnancy, and child-birth would also interfere with a full-time medical career. (c) suppose for argument's sake we assume that separate but equal medical facilities have been created, a practical problem would arise for a family traveling in a car and being involved in a road accident. Two ambulances would have to be sent to take the males to one emergency room and the females to another. Even if this were feasible, what about relatives. Female relatives will have to go to the male facilities to visit their male relatives or to donate blood or transplantation organs.
Whichever way one looks at it, working in a medical environment of necessity will involve interaction of men and women either as professional colleagues or as patients with care-givers (physicians and nurses). The issues of covering a,wrat lowering the gaze, mixing, and seclusion will arise.
Our humble opinion is that the principle of necessity applies in medical situations and that the provisions of the principle of mashaqqa can be applied.
We will now proceed to discuss the practical issues and try to analyse them from the point of view of the principle of intention and the principle of hardship and its sub-principles.
6.0 PRACTICAL ISSUES FOR DISCUSSION
6.1 MEDICAL CO-EDUCATION
Teacher-student
Student-student
Teacher-teacher
6.2 INTERACTING WITH COLLEAGUES OF THE OPPOSITE GENDER
Norms: dress, speaking, general conduct
Class-room etiquette
Social interaction
Laboratory: experiments on fellow students
Clinical skills laboratory: learning clinical skills by examining other students
Operation theater
6.3 PATIENTS OF THE OPPOSITE GENDER
Taking history
Physical examination
Diagnostic procedures
Operations
Choice of physician: Muslim of opposite gender vs non-Muslim of same gender