Women and Hajj, rapists, and minors

Q. I have the following questions:

1) Egypt's state theologian, Mufti Nasr Farid Wassel, has been accused of issuing a fatwa to the effect that it is haram in Islam for "actresses and belly dancers" to carry out the major pilgrimage -- Hajj. The Mufti denied this charge. Bearing in mind that these women worked "diligently" and in "good faith" to earn money to finance the Hajj, (as has been reported) how would you address this issue of actresses and belly dancers performing hajj?

2) It has been reported that Egypt has a minimum of 10,000 rapes a year. In a multitude of cases, the "rapist" would marry the "victim-woman," and under Article 291 of Egypt's legal code, the rapist-perpetrator would walk away free because the victim wife would generally request the authorities to drop all charges against the rapist-husband. This has also been the case with "gang rapes," where one of the rapists would marry the woman and the rest of the gang would go free. The Egyptian government is trying to change this barbaric practice permitted under this grotesque law. How does the shari`a view this criminal situation?

3) Another Egyptian situation: It seems that young Muslim men have been marrying "converted" girls (originally Coptic and Christian), below 18 years of age -- some even as young as 13. Added to his human drama, the parents of the girls are denied access to the girls by the men's family. Basically, a man can take a girl to a police station (or government office), have the (minor) girl repeat the shahada in front of two witnesses and she thus becomes a "Muslim." These conversions are even assisted by the police. In addition, the conversion is generally based on the Hanafi School of Law, which permits "conversion" as young as 7years of age. Egyptian civil law prohibits a girl under 21 from marrying without the consent of her father. What are the problematic issues involved here? What advice would you give to the Egyptian government to address this predicament.

A. The matter in question one is somewhat problematic. For if this man is a theologian as you have stated, he has no business addressing the issue. Yet I see he is designated as a mufti -- which therefore makes him a jurisconsult, and so well within his rights. After this hair splitting, let us get to the crux of the matter. There is a difference between an actress and a belly dancer. The former is an artiste, and in Egypt, a land of timeless civilization, this calling has always been highly regarded, in fact, containing no trace of "un-Islamic" content. Certainly there may be actors/actresses who do certain things that may not meet with the approval of the vox populi and in certain cases that of the opinio prudentium, but they are largely above board.

Belly dancing on the other hand has from its very inception been viewed as something not far from harlotry. In fact, way before Islam, the belly dancer was basically associated with prostitution, etc. Even today, the belly dancer in many cases works as a prostitute, and if she does not, performs in places which are eschewed by those who are conscious of their faith. The only ones who are free from this taint are the most famous -- and even so, their rise to fame had to have been accomplished through the normal channels. Now throughout the world, unfortunately the hajj has come to represent an isolated rite, separated somewhat from the other pillars of Islam. By this I mean that we can see, in our own Caribbean milieu for example, someone who does not pray or observe basic Islamic practices suddenly decides to make the hajj, and after this excursion comes to be regarded even as a scholar.

In Egypt, this has reached the same standard, and in fact, the term "Hajj" is used in that country as a form of respect, even towards those who have not done it. The hajj is supposed to be connected to and be part of the other pillars of Islam. It ought to be performed by those who are observant of the other aspects of Islam. Not only for spiritual reasons, but for pragmatic ones -- the hajj is in our time a practice regarding extraordinary planning and logistics on the part of the authorities, in view of the large numbers that attend. The authorities therefore who issue visas, to the best of my knowledge, ask that the local mosque or religious body, issue a statement of propriety on the part of the applicant for a visa. Thus this cuts down on those who wish to simply do it as some empty rite.

Given all this information which I am presenting in a brief manner, and given the reputation that a belly dancer has, it would seem unfair to others who are applying, especially when quotas are set for every country, that they should be cast aside by a person whose profession by its very nature, distances her from the standards of probity. A mufti may not rule on the "haram" or "halaal" of such a person making the hajj, for the fact is that perchance the person may be sincere, seeking to repent, and using this as a stepping stone to proper behavior. You will note that I do not address the actor/actress since I do not, as already explained, consider that profession in the same category as that of belly dancing.

The mufti may, however, advise the local mosques, that based on the popular perception of a belly dancer, and the cheapening of the rite that this may create in the eyes of the populace, that the required documents of probity not be issued. I am aware too that an organization like the ACLU may say that this is discrimination, especially in the case of a belly dancer who is not a prostitute. However, the response is that even though she may not be a prostitute, her vocation is nonetheless tantamount to wanton conduct and that which leads to haraam. For as already stated, her performances are generally at night-clubs, where drunkenness, debauchery, and defamation of Islamic ideals are the norm. In Egypt too, with the Islamic movement being what it is, the simple act of allowing a belly dancer to make the hajj may have terrible repercussions. The imam who issues the letter of probity may be targeted by the more extreme zealots for disciplinary action, the family (innocent) of the dancer may be targeted, and she herself may be.

Now there are two rules that apply here. The first is one in source methodology (usul) which basically states: "Ma laa yutawasal ilaa bihi il haraam, fa huwa haraam" or "kul ma yutawasal bihi il haraam, haraam." It means "that the haraam is not reached except through that which is itself haraam, and the second more explicit version is that "everything which leads to haraam is itself haraam." Her profession is therefore to be seen as one which falls in such a category. The other rule is "dar' ul mafasid yuqaddam ala jalb al masaalih." This means "the extirpation of evil takes precedence over the bringing of good." This means for example, that if I am going to prayer (something that is good -- masaalih), and I see a robber attacking someone (committing that which is in the category of mafasid), then I give precedence to foiling that attack rather than going to the prayer -- even though my assisting the victim may make me miss my congregational prayer, or even the prayer time all together.

In the case of the belly dancer, one considers the drawbacks as opposed to the possible sincerity on her part, and her presence, since it is a probable cause for fasad, is thus undesirable. There are other fiqh rules too which all lead to the same result, but I see no need for overkill. The most liberal -- yet within the confines of the shariah -- attitude one may take is that regardless of whether or not she has earned her money through her belly dancing, she may be requested to officially resign from it and its ancillary activities, before applying for a letter from the local religious authority. There is no reason for this letter to be denied if she satisfies the authorities. I say "officially" resign since we are thinking in terms of societal law: she may be clandestinely doing certain things, she may even use this as a ploy to simply get the letter, and as soon as she returns, go back to her former work. The imam however, is not allowed to probe into all these unknowns, and can only rule on what is apparent.

2) Rape in Islam is rape, whatever form it may take. This practice as you may well know, i.e. where the rapist marries the victim, was in vogue since the times of Hammurabi and even has its equivalent in Old Testament Law (Deut 23:28-29). There may be certain things in Egyptian society which we do not know, and therefore it is not easy to issue judgments. For example, the woman may have an affair with a man, and when she finds out she is pregnant, her only claim is that she was raped. In this way, her honor is preserved. The man denies it, and since no proof of him being the actual rapist is forthcoming, he walks away (of course, DNA is to these communities still something of the future). In a case of actual rape, one has to look at the long term effects in a society which still bears the mark of tribalism, such as rural Egypt. If the rapist is imprisoned or whatever, the woman still suffers, because she has been "defiled" and is therefore unmarriageable. In extreme cases where her parents do not wish her to marry a particular person, the only way to do it may be to claim rape.

This is why it is so important to look at the spirit of the law rather than the letter. In the case of a single man having the charge against him dropped, I would not condemn it, based on my understanding of that society. In the case of gang rapes, this is obviously horrible. However, again we have a situation -- what happens to the girl's family if the rapists go to jail? What sort of vengeance will be sought? Will her parents be killed --"unsolved homicides" or will her other sisters be raped? Will her family be ostracized for having refused to let the matter be settled by having one of the rapists marry her? The callous realities are unfortunately the lot of the Egyptain judge, it is not an enviable task. On the one hand, there are those who while acting within their understanding of the Islamic laws, will tell him that the rapists ought to be punished. On the other hand, the judge, being from the society, and understanding its workings, knows full well the impracticality of doing anything other than allowing a marriage of convenience, and thereby averting the greater disaster that may rip apart his community.

In all honesty, I abhor the answer which I give, but what else can I state? It shows too that the Islamic law is the norm, and that in certain cases, the tribal norms and procedures may not be totally abandoned. For in Islam, unlike the hypocrisy of secular claims, justice is not blind. It is meted out to avoid greater grief. May Allah forgive me if I have erred.

3) The conversions of which you speak are problematic since they are against the spirit of Islam. No Muslim may prevent a child from communicating with his/her parents. No Muslim may force a child to convert, since Islam allows inter-faith marriages. No state apparatus may be used to force conversions since there is no compulsion in religion. As to what the Islamic state may do, the person converting may be taken aside and questioned at the very minimum. To the best of my knowledge, the voting age in Egypt is 18, and there should be a minimum age involved in problematic conversions. The Qur'an says that the orphan may be allowed control of his/her affairs when we perceive in them the ability to conduct such affairs with astuteness, maturity, and propriety (rushd). This should be the underlying factor.

The circumvention of the marriage age law requirement is obtained by hoodwinking the system. Under Islamic law, a person who converts when the parents do not is deemed to be under the protection of the Qadi, especially when there is animosity between the convert and his/her parents. So the Qadi, in the role as parent, now conveniently states that he deems it best in the child's interests that she be married. Certainly this is evil. The Copts have long been an oppressed minority in Egypt, and these incidents you have mentioned only serve to blight Islam. It also makes a mockery of the respect that Maqawqas showed to our Prophet so long ago. It behooves us as Muslims to treat his (Maqawqas) people with honor and respect, and force them not into that which is in no way connected with the religion of Allah except by name.

On the issue of women in general in the Middle East, it is difficult for us to understand some things unless we live there. As such, many rulings may seem wrong, and this is the mistake that many westerners commit when they go there with their ideas of liberty, seeking to imprison a different cultural construct within them. When we hear the word "rape," it conjures up ideas of the most brutal, forcible, non-consensual sexual aggression and ravishing of a woman. In many cases in the Mideast, it is a euphemism for sex outside of marriage, to explain the wantonness of someone. Unfortunately, as you may know, wantonness is the term used only for the woman, for a man it would be some thing like "woman's man" or at the worst, lustful. Remember too that "rape" is a widespread prima nocta practice of deflowering the virgin. When she is married, were she to give herself "easily" to her husband, this would raise the question of her easiness with other men. To the husband, how can he interpret her hot kisses, her yielding body to him (for she is yet a stranger and does not know him) except as behavior characteristic of wantonness and even behavior learned in someone else's arms. So the bride on the wedding night has to fight to show how she guards her hymen.

This is a strange practice and one which we may ridicule, but one which is nonetheless part of Arabian culture. We see some of it in the lower animal species, of course for a different reason. The strong of the species, and maybe this too is a carry over into the human Arab genus, where if the husband cannot overcome the wife, then he is not good enough to father children with her, or to be a good warrior which is desirable in the tribal community.

All of this aside, I remember when I heard Muhammad al-Ghazali, a modern thinker I love very much, say that the only reason a man can beat a woman is when the wife lets a male visitor come to the home in his absence. I was horrified at this neanderthal concept, as I was thinking in terms of our society where such a visit by a stranger would have no sexual connotations attached. But in rural Egypt, to which he was addressing his message, his fatwa served several things. Number one, it is indeed a slight against her husband for a stranger to visit his home when he is away. In that society, it can only mean one thing. The next thing is that it will hardly occur -- indeed never -- if the woman is conscious of her societal obligations. Therefore, what he was saying was that wife beating is not allowed, but since he could not go against the apparent ruling in the Qur'an, he had to leave an "exception" for the jurists and the traditional ulemas, who have their turbans on too tight. So he added the condition of impossibility "when a man visits her in the absence of her husband." This is in consonance with the Qur'an which tells us that one may strike the wife, but gives several well-nigh impossible scenarios of conditional permissibility. Why, one would ask? Why not ban it altogether?

As our sister Azizah al Hibri and brother Fazlur Rahman have shown, the Qur'an cannot change things overnight, it is against human psychology. It has to be done gradually, evolving with the advance in our intellect. Now wife beating, if we follow the writings of Ben Sira (a Jewish writer), and the writings of the church fathers and the pre-Islamic rabbis, was an evil thing. For the woman to raise her voice above that of a man, indeed even her own son could result in being beaten. Such a sickness, which had become part of religion, could not be eradicated by a simple ayah. It had to be a cerebral evolution, which as your questions so manifestly show, is yet incomplete. Indeed we know that some Muslim brothers still judge a man's piety on the fact that "wa-Allah, he is so pious." This means that he does not allow his wife or his daughters to go out. He is strict, and so his wife is obedient, because he has the stick ready for her (a Benezra Sira teaching by the way).

So the business about women and Qur'an comes up, the Qur'an cannot recognize one international norm, for societies and their weltanschauungs differ. There may come a day when we, as a human race, will have some common perception of what is good, such as non-violence towards a woman. But we must not forget, strange as it seems, this seemingly logical facet is not yet a norm. Even if one does not raise his hand against his wife, oppression with words, in terms of injury, may be equal to if not more lethal than physical assault. Mohammed Arkoun would probably tell you that it is human nature to aggress, having learned this behavior in our evolution in the wild while hunting, etc. Therefore, the Qur'an had to take this into account, dealing with a trait that no matter how controlled, will always be latent, less latent in some.

So the Qur'an's words are couched in terms of apparent conditional permission when it in fact is not meant to be, or at least, giving an exception for some form of societal censure against an errant individual. Fazlur Rahman would tell you that it is simply conditional, making the well-nigh impossible criterion of permissibility. In both answers, I think there is wisdom, but as I stated, the more important thing is that it allows us to do that which our training (be it eastern or western) does not teach us. Let different societies have their norms without being harshly critical until we have studied things absolutely carefully.