Maqasid al-Shari’ah and the Veil ban
The latest example of such idiocy is the French ban on face veils, which takes effect today. Apparently legislating for what people wear, and invoking the coercive power of law to impose such legislation, is just the thing for a modern and secular society.
Of course, to use the criminal law in such a way is illiberal and inappropriate. It may well be that, at the extremes; the law should intervene to prevent the use of disguises for criminal activity. There are those who believe public nakedness should be banned on the basis of public decency. But any use of criminal law to govern the wearing of certain clothes, regardless of any question of criminality or decency, must be a disproportionate interference with a person’s legitimate autonomy.’ [i]
I couldn’t agree more with this sentiment. It is quite ironic that a country that supposedly promotes pluralism, a concept deeply rooted in secularism – which in a sense has roots in religion itself, attacks a minority of its population to express their freedom of choice to wear what they want to wear. It was the religious and cultural intolerance of the papacy during the reformation periods that gave way to the emergence of the concept of secularism and pluralism. Has Mr. Sarkozy forgotten his own history?
But then I guess this is the flawed and quirky understanding of pluralism which France wishes to promote where only the strongest group in that society determines the cultural identity, and hence the survival of the fittest ideology comes into effect. If you want to use Mr Bush’s language ‘you either follow my way in everything or don’t get to have a way at all’.
Islam through the concept of the Maqasid al-Shari’ah promotes a fair and just concept of pluralism. The five objectives of the Shari’ah (kulliyatul Khams): the protection of religion, protection of the self, protection of wealth, protection of the intellect, and the protection of honour engenders all citizens Muslims and Non Muslims alike, irrespective of their financial or political influence, the right to determine how they wish to live within the limits stipulated by God, the Supreme and the Sublime Master and Creator of the universe.
Islam protects the rights of Non Muslims to maintain their own cultural identity under the Shari’ah. Below[ii] is a brief and cursory look into how the Shari’ah protects the rights of Non Muslims under the Caliphate (governance based on Islamic principles):
Protection from outside aggression: The Non Muslims have equal rights with Muslims in this regard. The Islamic governments must protect all its citizens’ including minority Non Muslim groups from outside aggression. It is stated in the Hanbali book of fiqh, Matalib Ula An-Nuha: ‘The ruler of the Muslim community is bound to protect the non-Muslims and to save them from aggression. Should they fall into captivity, the imam must marshal all resources to secure their release and punish the aggressors against their lives and properties, even if they were the sole (non-Muslim) living in a remote village’. [iii]
Protection from Inside Oppression: There are many verses and more specifically prophetic instructions on obliging the Muslims to protect and not harm their fellow non-Muslim citizens. The Prophet said: ‘’Those who commit an act of aggression against a member of the non-Muslims, who usurp his rights, who make any demand upon him which is beyond his capacity to fulfil, or who forcibly obtain anything from him against his wishes, I will be his (the oppressed’s) advocate on the Day of Judgement.’’ [iv]
The Prophet also said, ‘’I will be the opponent of one who harms a non-Muslim, and I will speak against those whom I oppose on the Day of Judgement.’’ [v]
He said in another hadith (tradition), ‘’He who harms a non-Muslim harms me, and he who harms me, harms Allah.’’ [vi]
Protection of Persons and Lives: Muslims agree that the lives, blood, wealth, and honour of the non-Muslims living among them are inviolate. The Prophet said, ‘’He who kills a mu’ahid (non-Muslims) will never smell the fragrance of paradise, the fragrance of which can be smelled from a distance of 40-year travel.’’ [vii]
Protection of Property: Besides protecting the life of non-Muslim, the Islamic state is bound to protect his property. Imam Abu Yusuf, in his book Al-Kharaj, has quoted the Prophet’s contract with the people of Najran: ‘Najran and its neighbouring area in the security of Allah and His Messenger. The property, religion and churches of the inhabitants, as well as all possessions, whether much or little, are under the protection of the Prophet.’ [viii]
Freedom of Embracing a Religion: Just as it preserves other rights of non-Muslims, Islam also protects their right to embrace a religion of their own choice. The Qur’an unequivocally states that Muslims cannot coerce people to embrace Islam.
Allah says, ‘’There shall be no compulsion in [acceptance of] the religion. The right course has become clear from the wrong.’’ (2:256)
And He says, ‘’would you compel the people in order that they become believers?’’ (10:99)
In addition to the covenant made by the Prophet with the Christians of Najran, which placed them under the protection of Allah and His Prophet and provided for the safeguarding of their wealth, religion and churches, the one made by ‘Umar ibn al-Khattab with the citizens of Iliya’ (Jerusalem) stated and makes clear of the Islamic ethos in regards to dealing with other religious groups: ‘This is the protection which the servant of Allah, ‘Umar ibn al-Khattab, the commander of the faithful extends to them (non-Muslims): ‘’The safeguarding of their lives, property, churches, crosses, and of their entire community. Their churches are not be occupied, demolished, or damaged, nor are their crosses or anything belonging to them to be touched. They will not be forced to abandon their religion, nor will they be harmed….’’ [ix]
Fashions of Dresses of non-Muslims: Under the Islamic law, non-Muslim are not obliged to wear the attire of the Muslims, nor can the authorities oblige them confirm to a specific dress code. The narrations from certain companions and Muslim leaders of the past obliging non-Muslims to wear certain colour or type of clothing should be understood in the light of social dictates and needs of a given society as we have today that each profession in a society has its own specific dress, and not that Islam compels them to wear a particular clothing they may not desire.
The French ban of the face veil only demonstrates how some of the western countries intolerant nature is surfacing towards the Muslims. If Mr Sarkozy and others wish to promote freedom, democracy and liberty, then this move is very antithetical to these principles. This does nothing but to give rise to the far-right and Islamophobia. ‘Many secularists and liberals would prefer a world where individuals do not want to hide their faces a part of their social interactions; many secularists and liberals would welcome a world without any face veils. But for such a world to be imposed by legal force makes it a secular and liberal world not worth striving for.’ [x]
I hope the French public will see how detrimental this is to their liberty and freedom.
[ii] Summarised from Dr Yusuf al-Qaradawi’s book: Non Muslims in the Islamic Society
[iii] Al-Hanbal, Ahmad Ibn, Matalib Ula An0Nuha, Vol 2, pp. 602-603
[iv] Related by Imams Abu Dawud and Baihaqi in As-Sunan Al-Kubra, Vol, V p. 205
[v] Related by Al-Khatib, with a good series of transmission.
[vi] Related by Imam At-Tabarani, with a good series of transmission.
[vii] Related by Imams Ahmad and Al-Bukhari in Jizya, and by Imams An-Nisai and ibn Maja in Ad-Diyat, on the authority of ‘Abdullah Ibn ‘Umar.
[viii] Al-Kharaj, p 72
[ix] Tarikh At-Tabari, Vol 3 p. 609, ed. Dar al-Ma’anf, Egypt.