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Should Hijab Be Mandatory in Muslim Countries? Dr. Shabir Ally & Dr. Safiyyah Ally

Dr. Safiyyah: A young woman, 22 years old, Mahsa Amini, died in police custody, Dr. Shabir. She was charged with not wearing appropriate clothing, not wearing modest enough clothing by the Iranian government. Dr. Shabir, this has raised all sorts of questions. You know, there are women from Iran all over the streets now, protesting, taking off their hijabs, cutting their hair, in protest of what has happened to Mahsa Amini, and just anger over the Iranian government and the regime, And so Dr. Shabir, this has raised a question about the state, the Islamic state, and does an Islamic state need to enforce the hijab?

Dr. Shabir: To begin with, we can say that it is very clear from the Quran that the Muslim polity would have certain... Well, it would it be within their jurisdiction to enforce penal laws. For example, the law against stealing, against murder, and so on.

At the same time, the Quran does not give any specific mandate with regards to hijab in terms of a Muslim polity enforcing it. We can only say that in general, the Muslim polity would have the responsibility to do what the Quran speaks of generally as commanding what is good and forbidding what is wrong.

But of course, when it comes to so many different evils in society the Muslim government would have to be sagacious in picking the battles, and seeing what can be enforced, should be enforced, as opposed to some things which you need to just be content with preaching, and education, and so on.

It seems to me that the Muslim woman's clothing has been much misunderstood in Islamic law and in our classical law books, to the extent that the covering of the entire woman's body is sometimes being presented as a given, and as if it all has the same ruling of or obligatory. If somebody violates any aspect of that, they would see that it's like the whole thing. This almost reminds me of a statement in the Book of James in the Bible where it says if you omit one law, it's like you broke the whole thing, something of this nature. But it's not an all or nothing, because in Islamic law, it is generally recognized, though it somehow doesn't seem to apply here, I mean, people have not applied it here, but I don't see why not.

Generally, it is understood that there are gradations of things. For example, if you think of our prayers, there are those aspects of prayer which are obligatory, those which are, not quite obligatory, but one might say essential, those which are , that means it's a generally recognized practice, either of the Prophet, peace be upon him, or of the earliest Muslims. And then among those, there are those which are emphasized and those which are not emphasized. So there is non-emphasized , such that if you omit those, you are not under any penalty, you do not actually incur any sin. And then there are voluntary aspects, so they're good, nice if you do them, but if you omit them, no questions asked.

When it comes to the Muslim woman's head cover, how is it that's everything is presented as if it has the same verdict of , or obligatory? No, in an Islamic state, I think it would be essential for the government to draw distinctions between certain aspects, and say, okay, we desire for people to adhere to this dress code, but if they violate this aspect or that aspect, it's not something that requires a penalty, and so on.

Dr. Safiyyah: Yeah, because Dr. Shabir, even if something is obligatory, there doesn't need to be a law commanding it, you know, even if something is obligatory by religion, it doesn't necessarily mean that the government needs to take it into their own hands to enforce it.

Dr. Shabir: True.

Dr. Safiyyah: Right? Like, for example, prayer. I can't imagine that many Islamic states enforce prayer, and say yes, it's obligatory. I think all Muslims would agree that prayer is obligatory, but nobody is saying, okay, if you don't pray, or even if you don't come to the congregational prayer once a week, that you're going to be charged, right?

Dr. Shabir: Yeah, of course, Muslim governments have, following perhaps purists in this regard, have enacted laws and made sure, for example, that businesses would be closed at the prayer time, especially on a Friday, and a purist might argue further that the person who does not come to join the regular prayers, or does not do the regular prayers at all, they could face certain penalties, and so on.

Even we can extend that to fasting, and see that purists would argue, the person who does not fast during the month of Ramadan though being able-bodied, and not being ill or being on a journey, that person should be penalized as well. But all of this is taking Islamic law too far, and it is going beyond what the Prophet, peace be upon him, himself practiced, and people might try to pin this on the Prophet, peace be upon him, by saying he would have done that, but that is a little bit far-fetched.

In any case, more to the point about the hijab, in time of the Prophet, peace be upon him, it is not so clear that we had the present standards about hijab that we think is so essential. It's not so clear that this is what was prevalent in the time of the Prophet, peace be upon him. The narratives that go to show that the women were so completely covered, for example, you wouldn't find it in Bukhari. You would find it, for example, in Abu Dawud, that says that when such and such a verse of the Quran was revealed, then the women came out of their homes with their heads partly covered so they appear to be like they have something like the crows have, this comb on the head. The way they wore their head cover apparently gave that kind of impression to people. But it's significant that this is not in Burkhai or Muslim, it's in Abu Dawud.

In Bukhari, the most you would find is that it says that if a woman prays without her head covering, then her prayer is not accepted. But that's only about prayer. It's not about the generality of the situation, and in the time of the Prophet, peace be upon him, there were slaves, as there were in the time of Jesus, on whom be peace, and the rules for slaves are acknowledged to be very different from the rules for free citizens.

When it comes to clothing, there is a hadith which seems to indicate that slave women only had to cover from the waist down to the knees, which is basically what is prescribed for men as well. And so if we try to imagine that situation, it's hard for us today, being accustomed to the rules of hijab as we commonly know it. But when we look at that, we realize that, you know, a lot has developed over time, for better or for worse, and where it works and people are fine with living by these standards, one cannot doubt that this is very decent to wear the Muslim woman's hijab as it is commonly worn in many parts of the Muslim world. But to now enforce that and say that this was as it was in the time of the Prophet, peace be upon him, that requires more evidence and proof, and that evidence and proof is lacking. So I think we need to relax a little bit about that when it comes to public enforcement.

Dr. Safiyyah: And Dr. Shabir, if you think about an Islamic country where the majority of people are Muslim, there's going to be a certain culture in that society of how to dress, right?

Dr. Shabir: Yes.

Dr. Safiyyah: So you don't necessarily need a law to tell you how to dress. People just know. Like, for example, you go to Egypt, right? There's no law, necessarily, telling you okay, you gotta wear a hijab, but the majority of people do wear it, right?

Dr. Shabir: Yes, yes. And you can count on education, and preaching, and you know, if you're running the state, you have state television, you have state media, you can, through all of these media outlets, you can educate people, and guide them, teach them about the Quran, and the way of the Prophet Muhammad, peace be upon him, and since these teachings are so beautiful and self-explanatory, and wise, people will naturally gravitate towards them, and you don't need to enforce the laws that you derive from them.

Dr. Safiyyah: 'Cause sometimes, when you have too many laws, people rebel against those laws.

Dr. Shabir: True, true, and it becomes difficult to enforce as well, and then if you go enforcing everything, then you become a police state, which is also not very desirable a place to live under. So a balance has to be struck. In almost every country in the world, you will have some line that cannot be crossed, and you know, people will be penalized for crossing that line. So there are indecency laws against the laws against indecency. So where the law is gonna be drawn in the Muslim society may be slightly different, but it shouldn't be so radically different so as to make everyone squirm, and make Islam look like something inapplicable in our modern world, something so out of place.

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