1. Criminalising (making something illegal) or decriminalising (making
it legal, or at least tolerated) is the prerogative of Allah;
2. When the text of the Qur'an or the Sunnah are authentic in their
authority and clear in their meaning then no one has the authority to
rule over them;
3. The legality or illegality of a practice should follow the Qur'anic
maxim: "To make lawful to them what is good and forbid them whet is
evil" (7:157).
4. The honour, integrity and chastity of the male and the female is
one of the five universal principles protected by all revealed
religions.
The moral atmosphere in many societies which are increasingly secular
in outlook, and where legislation reflects the norms and customs of
the culture and practice, has become 'liberal' and individuals have
the 'freedom' to indulge in acts which give them personal
satisfaction, as long as they do not infringe upon the rights of
others. Such a moral atmosphere may justify the decriminalisation of
prostitution. Prostitution, it is argued, is not worse than homosexual
practices which are accepted, legalised and tolerated in societies
nowadays. For a man or a woman prostitute, the difference between
their action and that of lesbians and homosexuals is the degradation
of the human body by charging a price for hiring it. Those who argue
in favour of decriminalisation say that this is an activity deemed to
entertain the paying partner, as a dancer or an actor entertains those
who watch them act. After all, legislation nowadays is responding to
the notion of personal freedom and the absence of coercion in the
profession of prostitutes. This type of argument is gaining ground in
modem 'tolerant' society. The Synod Committee on social matters showed
in a recent report that it was in favour of considering sexual
relations outside marriage as no longer sinful, and this goes a long
way towards helping the second act, prostitution, win its argument for
decriminalisation.
For Muslims the question of legality is entirely outside the scope of
human power. It is purely the prerogative of Allah, our Creator. To
assign this area to a human being is to give that person, institution
or organisation the right to be worshipped. When the Qur'anic verse,
"They have made their rabbis and their monks, and the Messiah, the son
of Mary, as lords besides Allah", ( 9:31) was recited in the presence
of Adiyy b. Hatim, a convert from Christianity, he said: "O Messenger
of Allah, they did not worship them". The Messenger said to him: "Did
they not prohibit for them what was legal? Did they not allow them
what was prohibited?" To this Adiyy said: "Yes". The Prophet then
said: "This amounted to worshipping them". The Qur'an has made clear
it that no-one has an authority except Allah. In the Qur'an Allah
says:
"Do not (falsely) declare: "That is lawful and that is forbidden, in
order to invent falsehood about Allah. These who invent falsehoods
about Allah shall never prosper" (16:116).
Turning to the Qur'anic attitude towards prostitution we find that, as
with many social practices that it aimed at reforming, it moved in a
gradual way. Prostitution was widely practised in a number of forms
and it was tolerated and accepted as one of the social practices. It
was condemned in a number of early Makkah Qur'anic verses as an
immoral practice which was prohibited by Allah, but there was no
specific punishment for it.
In the Qur'an we read: "And these who do not invoke another god, and
do not slay the living soul, which Allah has forbidden, except by
right, nor commit adultery - and any that does this (not only) meets
punishment (but) the Penalty on the Day of Judgement will be doubled
to him, and he will dwell there in ignominy..." (25: 68). On this
occasion the Qur'an was portraying a decent picture of the morality of
the servants of the Compassionate and giving the severest warning to
those who behave otherwise, but the punishment mentioned was in the
Afterlife.
The same attitude is seen again in "Do not approach adultery for it is
an indecent thing and an evil way" (17:32). It can be noticed here
that the command to keep away from coming near to adultery is
explained rationally - that it is an act of degradation, lewdness and
a dangerous trend in human society. But even with this rationalisation
of the prohibition there was still no punishment.
But once the Muslim community was established and the authority of the
Messenger of Allah was confirmed and was free from subjugation to any
other social order, the rules and regulations dealing with this
deviation in human behaviour were revealed to the Prophet to put into
practice. An early sign of these new regulations came in Ch 4, verses
15-16 where it was prescribed that women who commit adultery were to
be imprisoned indefinitely until their death or until a new regulation
came. Verses 16 prescribed some sort of punishment for men who were
guilty of homosexual acts until they were deterred from this heinous
crime. Soon afterwards the final regulatory and prescribed punishments
were revealed in Chapter 24, The Light. The first verses of this
chapter set out the regulations specifying the punishment, the
establishment of the crime, the different categories of those who
commit it (virgin or married), the prohibition of marrying those who
are known to indulge in this act, and finally the prohibition and
punishment of those who falsely accuse someone of committing this
crime. The statements of the Prophet came to expand and detail all the
rules and regulations on this matter. As a result, any physical
relationship outside marriage was criminalised and punishable. A whole
core of legal regulatory ordinances became part of the penal Islamic
legal system. It is now firmly established that this act is
permanently penalised, criminalised and punishable physically as well
as socially, and no-one except a non-believer, would argue about its
nature.
There are many safeguards and mitigating circumstances to protect the
innocent and to stop speculative talk about the integrity and good
nature of those who may be involved. But these are legal protective
and preventative measures for cases where the crime was not
established, and do not in any way infringe upon the validity or the
applicability of the rules, and definitely not their stoppage or
abrogation.
The Nature Of Regulations
The Islamic rules and regulations are not arbitrarily imposed upon
human society, They follow a rationale given in the Qur'an itself and
reflects the spirit of care, compassion and reasoning. This is clearly
stated in the Qur'an, giving the general framework of the Islamic
legal system. In Ch.7, verse 157, Allah Most High defined the mission
of the Prophet in terms of these moral and rational concepts "….he
enjoins on them what is good and forbids them what is evil, and he
makes the pure things lawful for them and forbids them from the
impure, he relieves them from their burdens and frees them from the
fetters which were upon them. So those who believe in him and support
him and help him (in his task), and follow the Light which has been
revealed to him, those surely attain success. " So Muslims believe
that this is the aim of the Islamic way of life in general and of the
rules and regulations in particular. Any particular legal issue has to
be judged in the light of this general moral framework.
The Aim Of This Particular Piece Of Legislation
Beside the general moral framework of the Islamic legislation, in
every particular issue there are certain objectives to be attained.
The family in Islam is the bedrock of the social order. It has to be
built on a solid foundation which would allow it to survive the
challenges, the tensions and the strains of a life-long relationship.
It has, at the same time, to cater for and protect those who are
involved in it - wife, husband, children and all those who have a
stake in its stability and continuity. There are basic legal
obligations between all these members, those who are covered by the
term 'extended family'. The honour of those who are involved is a very
important concept as far as the good name of relations is concerned,
as far as the responsibility, both morally and financially, for the
upbringing of the children is concerned and as far as those who are
entitled to carry the name of the family and inherit its fortune are
concerned. All these rights stem from a clearly established
relationship. The safety and tranquillity of those who live in the
same area, and the eradication of the sources of tension and conflict
are also important. All these are legitimate objectives which have to
protected and realised.
The Question, Finally, Is Whether There Is Any Need, Within The
Islamic Social Regulation, For Prostitution?
The answer to this question is to be sought in the regulations dealing
with the sexual relationship. In Islam, sex is considered to be one of
the most enjoyable aspects of life. In the words of this life, "Life
is sheer enjoyment. The best of its enjoyment is a decent good wife."
In a Hadith the Prophet (s.A.w.) said: "The faithful has not acquired
a greater thing in this life after his faith in God, than a decent,
good wife. If he looks at her he will be pleased, if he asks of her
something she will oblige and if he is away she will keep chaste and
look after his wealth."
He advised young people who were physically and financially able to
marry to get married, for this is the best way to preserve young
people's chastity and integrity. Allah Most High commanded the
guardians of those who are in need of marriage to help them to
accomplish it.
The Qur'an went on to give that good promise: "And marry those among
you who are single and the virtuous ones among your servants, male or
female, and if they are poor, God will provide for them out of his
bounty," (24: 32.)
Al-Islam did not put a strain nor impose restrictions on those who
wish to get married, male or female. Once married, the financial
responsibilities fall upon the shoulders of the man. Both are to live
within their own means. If their earnings are not enough the state
should take care of them. If there is no such social system, local
communities should share among themselves the means to enable families
to survive in an honourable, but humble way.
There is no reason for men or women to claim that they have to resort
to this illegal immoral practice out of financial or physical need.
Marriage is an easy, simple, natural way of satisfying the basic human
need. Only when people become greedy, materialistic and unprincipled
do they resort to this heinous practice, which spreads diseases and
illegitimacy and brings into this world children who suffer the
consequences of the mistakes of others.
Allah Most High says in the Qur'an: "Indeed those who love that
obscenity should be spread among the believers, shall have a painful
chastisement in this life and in the Hereafter, and Allah knows but
you do not know," (24:19).
And Allah says the Truth and guides to the right way.
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