Hijab: A Shar’I Issue

I – Preamble
I was at a certain function the other day, and someone brought up the issue of hijab. One respondent held the typical position that it should be up to the individual (and that it should not, therefore, be
compulsory). Another simply made an historical observation, stating that hijab was voluntary for the first year or so of the revolution, until people complained to the Imam about the lack of propriety by some female workers in governmental offices, at which point the Imam said that hijab should be enforced in government offices, after which through a gradual process, due in part to the fervor of revolution and war, the Islamic dress code for women began to be enforced on the streets. I was going to put in my two cents’ worth, but the conversation drifted to another subject. But I thought I’d put my thoughts “on paper” about this, as the thought process will, I hope, serve to disambiguate not just this issue, but other controversial issues which have resulted from similar category errors or conflations of disparate and dichotomous categories such as sacred/ profane, sacred community/ secular social contract, and sacred law/ synthetic rule, regulation, guideline or code of conduct. Let me explain.

II – The Inter-Paradigm Ambiguity
The first confusion arises from the fact that the application of this question (and many other similar ones) to an a-modern (or anti-modern) traditional sacred community is invariably posed by persons with frames of reference, metrics and value-criteria proper to a secular, social-contract –based modern, profane culture. This is really the crux of the problem: modernity’s failure even to recognize, let alone respect, traditional cultures, and generally any culture other than its own. To wit, in the traditional Iranian Shi’a culture (which is that of the overwhelming majority of Iran’s population), a distinction obtains between sacred law (shariah) on one hand, and legislated rules, regulations, codes of conduct and industrial regulations and standards on the other; the former are immutable or very near-immutable and are sacred in origin and are guarded by the Guardian Council (a council of religious elders), whereas the latter are synthetic and malleable and are crafted by the Majlis (a council of lay as well as religious men and women). This distinction does not exist in modern secular societies such as those which obtain in the West. Something is either a law or it isn’t, and there is no distinction between a sacred law and a non-sacred one, or between mutable or immutable laws: even constitutional laws can be changed by convention or super-majority vote. But again, the fact that this distinction does not obtain in one society does not afford that society the right to disregard the distinction in other societies in which it does, regardless of how often this “right” is arrogated by modernity against traditional cultures. And so, the respectful outside observer of the traditional Iranian culture and legal system must do what members of the traditional society do in their thought process. In deciding on a given issue, the first thought must be given to the question as to whether the issue at hand is a shar’i or urfi issue, i.e., whether it pertains to the domain of the sacred law or to that of everyday, profane affairs. If the issue falls in the ambit of the former, then the matter is settled, and has been settled by sacred consensus for centuries, and as such, its discussion is (virtually) out of the question. Certainly for the non-specialist lay person, it is entirely out of the question, whereas the portal or gate of ijtihad is open for any and all mujtahids who wish to pursue the question in light of changed circumstances, if any. The issue of hijab belongs to the former category of Sacred Law. (In the Islamic tradition, the terms given to these two categories are shar’iyat (matters relating to Sacred Law), and ’urfiyat (matters not already decided upon by the sharia).

By the way, the Sacred Laws of Islam are even more immutable than the so-called “laws” of the physical world such as the “law” of gravity or the first “law” of thermo-dynamics, which, as Alfred North Whitehead correctly pointed out, are not, properly speaking, laws so much as they are long-term tendencies. (They obtain at the pleasure and behest of God, who can and at times does change them at will.)

III – Intra-Paradigm Ambiguities
Another confusion arises from the failure to distinguish between different religious approaches within (a) a given religion, and (b) different (heterodox) currents within a given religious sect. The three main currents within Islam have been and continue to be that of the Sunnite, Shi’ite and Kharijite currents. The first two (which have, historically, made up over 98% of the Moslem community) both have their respective class of clerical specialists, to whose expertise they defer in matters of religious ritual and law, the latter of which, in Islam, being a social religion, is all-encompassing. This institution of deferential accession is called taqlid – literally, ‘imitation’ – whereby the non-specialist defers to the specialist in matters of religious ritual and sacred law. The nature and extent of this deferential imitation differs in the Sunnite vs. the Shi’ite traditions in two important ways.

a) The Shi’a, having a unified spiritual view of Sacred Governance or Guardianship (wilayah), defer to their mujtahid (he who practices ijtihad or strives and endeavors in the religious field to bring about correct interpretations and rulings based on the sacred sources of law – the Quran and Sunna) defer to their mujtahid or marja’-e taqlid in all matters legal, spiritual and political, whereas in the Sunnite tradition, their take of Guardianship having been trifurcated in practice, defer to the ulama in matters of law, to the caliph (and later sultans and amirs) in political matters, and to their sufi masters for those on the spiritual path.
b) The other important distinction is that in the Sunnite tradition, in matters of ritual and religious (but not spiritual or political law), four schools of law developed and crystalized into the Hanafi, Maliki, Shafi’i and Hanbali rites. The distinctive features of all four rites (which distinguish them from the Shi’a or Ja’fari rite) is that all four believe that each of their eponymous founders have exhausted all possibilities when it comes to ritual and legal practice, so that the portal of juridical striving or endeavor (bab al-ijtihad) is forever closed, and as ijtihad is no longer necessary, it is haram (proscribed). In the Shi’a or Ja’fari rite, on the other hand, it is believed that as new situations present themselves, it is always necessary to practice ijtihad so as to ensure the efficacy of religious law to newly-arising situations and contexts. As such, it is haram (forbidden) to defer to a mujtahid that is no longer living, and the portal of ijtihad remains open indefinitely for the living mujtahid or doctor of law.

The Kharijite current, which includes the Ahl al-Hadith, the Zaheris, Ibn Taymiyya and his followers, Muhammad ibn ‘Abd al-Wahhab and his motley crew of misfits, the Ghulaat, Akhbaris, Shaykhis and Baabis of the Shi’a, and todays Salafists (followers of such modernists as Jalal ud-Din Astarabadi (“Afghani”), Seyyed Qutb, Muhammad Abduh, etc.), the Deobandis of the Indian sub-continent, and generally any and all of the takfiri and laa-mazhab misfits and malcontents that you can shake a stick at. The important characteristics to bear in mind about this current in its contemporary neo-Kharijite adumbrations is that while they maintain the malcontent and misfit attributes of their forebears, they do so in a modernist, radically-individuated anti-communal form, which not only demurs on taqlid (the necessary precondition for the formation of any systematized and lasting approach to matters of religious law, rite and ritual (mazhab), but consider taqlid (and therefore the institutions of the 4+1 mazaahib) as haram. (That is the reason one of the first acts of the Wahhabis, once they took control of Mecca, was to destroy the four stations of the four Sunni rites that had been set up for centuries in the four corners of the great mosque of the ka’ba.)

IIII – Conclusion
What I am getting at with all this background is that in order to avoid ambiguities and category errors in matters of religious sacred law (such as the hijab), one should first consider whether the issue is one that falls in the category of Sacred Law or Common Law. If the former, one must then consider whether the context and approach is traditional or modernist/ neo-Kharijite; whether the approach is one of the five traditional mazaahib (the four Sunnite rites plus the Ja’fari or Imami Shi’a rite), or whether one’s approach precludes that of the traditional mazhabs and is a neo-Khawarij/ modernist one (in which as Cole Porter famously said, ‘anything goes’).

Wa allahu ya’lam.


And now for the other side of the coin:

To the question: What proportion of Iranians would you estimate would advocate removing the Hejab law, what proportion would you estimate would advocate it remaining? I would frame the issue differently, because it is not simply a matter of absolute numbers. The problem is that there large swath of northern Tehran where pretty much all – or virtually all – of the residents do not ascribe any legitimacy to this law. (So the first point I am making is that the minority is not evenly dispersed, but highly concentrated). If we take Tehran, with a population of, say, 12 million, there are at an absolute minimum 2 million souls who think of the forcible enforcement of the hijab law as misguided and unsustainable at best. The figure could be two or even three times that. But I am going to use the figure of 400,000 souls, who, when you take a specific geographic region (the northern suburbs of Tehran), form the overwhelming majority of citizens.

In absolute terms, this number is huge. Just to put it in some perspective, it is 100 times the population of Mecca at the time of the Prophet, with whom be peace, which is estimated to be around 4,000. Oh yeah.

But that’s not the worst of it. The reason for their disparate position is that, unlike the Madinat an-Nabi (City of the Prophet) whose co-religionists shared the same world view (a traditional, culturally homogenous entity), the culture of northern Tehran is pretty much root and branch different from that of much of the rest of the country. To use a metaphor from zoology, the difference is not one between, say, simian and avian eyes, where the former look ahead whereas the latter’s are placed on either side of the head. The difference, rather, is between the vision obtained by a primate’s ocular organs compared to that afforded a chameleon, each of whose eyes simultaneously rotates on a different axis.
It’s the same old story: the seismic plates of tradition coming in contact with those of modernity, with the inevitable innocents both traditional and modern becoming unwitting grist for that tectonic mill.
The moderns are completely lost. Of that there is no have doubt: they are, almost by definition, disorientated, unanchored, and in the case of Scotty Boy of late, it seems, unhinged. But the traditionalists have fared no better, really: in this encounter, all they have been able to do is to parrot the tired refrain that their fellow citizens’ position is “kufr” or “shirk”; in a word, they have become their nemeses, the neo-Khawarij, the Salafi-Wahhabi Takfiris.

Some among them have tried to do better, but have failed miserably: Soroush and Kadivar come to mind; they have thrown the baby out with the bathwater. And they will continue to fail, in this generation, and the next, and the one after that. And we will all feel the weight and pay the price of the crushing historical forces that are tearing our identity apart at the seams, like a caterpillar breaking out of its cocoon in its metamorphosis into a butterfly. Thus is the process of individuation effected, the unfolding of the Singularity into Its Multiplicity, the self-revelation of God unto Himself, with His attributes of Wrath as well as Mercy, in all its majesty.

“I was a hidden treasure, and I wanted to be known; so I created creation in order to be known.” – Hadith Qudsi (Divine Utterance)

In the meantime, let us be compassionate towards those who must suffer our majoritarian dictates. Ameen.

Posted by Arash Darya-Bandari


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