Surah 2:178-193: the common law of the Qur’an begins

The next section begins Surah 2’s Islamic nation-building theme in earnest. Many religious books contain laws, such as kosher laws and general prohibitions on murder and theft and the life, but the Qur’an goes to a level of detail and “practicality” far beyond the Bible. I put “practicality” in scare-quotes because some of the legal recommendations made in this section are in fact wildly impractical and of dubious morality; I mean to say that they are procedural, that they describe actual courtroom practices instead of just laying out broad normative moral commands.

As I have said, this level of detail is necessary because of the social and political realities of the time in which Surah 2 was written. The Medinan Period, the time that Muhammed spent in Medina (Yathrib) and during which about half of the chapters of the Qur’an were written, was a time of political intrigue and turmoil in the Arabian peninsula. I’ve written already about the complex interplay of theological and even military factors in the relationship between Muhammed’s followers and the Christians, Jews, and other religious groups that lived together in Medina.

Muhammed’s work in this period is less like the life of Jesus and more like the life of Moses. Where Jesus created a millenarian religious sect that had very little original social agenda beyond preparing for what they believed was the impending apocalypse, Moses had the more difficult job of building a new permanent society out of more or less nothing. (This is not advocacy for the historical accuracy of the received biographies or even the existence of Jesus or Moses, this is summary of the stories as I understand them.) Jesus built a community; Moses built a nation. Muhammed has practical realities to deal with as an important contemporary religious leader, and that is why we see the laws we see in this section.

In fact, Muhammed’s role is so important politically in this period that he wrote an entire new constitution for Medina. It is a question of legitimate academic disagreement whether this part, or any part, of surah 2 predates or postdates the Constitution of Mecca. As you read below, compare and contrast those rules with that Constitution and decide for yourself.

Here is Yusuf Ali’s text with my commentary, with the verses I feel of sufficient moral value to preserve for ultimate inclusion in this blog’s end product, the Jefferson Qur’an:

178. O ye who believe! the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.
179. In the Law of Equality there is (saving of) Life to you, o ye men of understanding; that ye may restrain yourselves.

This is an interesting and easily-misinterpreted commandment. At least one intreped Qur’an-crawler has mistaken it for a command for freemen, slaves, and women to murder each other.

At least one other source provides the far more useful translation of “retribution” in place of Yusuf Ali’s more flowery “the law of equality.” The savvy reader will see a direct echo to the Code of Hammurabi’s “an eye for an eye.” (Note that this source uses an alternate numbering scheme for the verses of the Qur’an, which are not consistent in the way the different versions of the Bible are.)

While I do not much care for this “law of equality” in murder. Death for death strikes me of a very easy way to deprive one of the power to say that murder is wrong. Death for death means that killing is not wrong, it is merely the intent that matters: that there is nothing of particular consequence about the end results, since both murder and lawful execution produce a corpse out of one of your countrymen, it is merely that one who executes criminals and one who murders are of different legal permissions at the time they do so. Even if we accept the disquieting implication of the death penalty that the sole determinant of moral wrongness under such a system is whether or not a court of law (even a very competent court) has ordered it or not, the prescription of death is incompatible with the legal regimes of many of the most civilized states and nations today.

But on the other hand, the “the law of equality” actually provides and important limiting principles that would be of some use for a lot of the worst parts of Islamic society today (and everybody else’s really). If there is a murder done against your people, the proper response is execution of the murderer; equality between the victim and the crime. Disproportionate devastation of entire societies in response to the misdeeds of a small number of that society’s members has become something of a fad for some nations today – a one-for-one exchange would actually be a step in the right direction for such nations. But I digress.

Other translations also render “remission” as “mercy” in 2:178, another merciful clarification. The sentiment here is that, if the collateral victims of murder such as the family show mercy, the victim should receive some leniency. The potential legal effect of the perpetrator’s contrition is not mentioned.

180. It is prescribed, when death approaches any of you, if he leave any goods that he make a bequest to parents and next of kin, according to reasonable usage; this is due from the Allah.fearing.
181. If anyone changes the bequest after hearing it, the guilt shall be on those who make the change. For Allah hears and knows (All things).
182. But if anyone fears partiality or wrong-doing on the part of the testator, and makes peace between (The parties concerned), there is no wrong in him: For Allah is Oft-forgiving, Most Merciful.

Yet more practicalities: the common law of wills and trusts for Muslims. Muslims are required to make bequests to their children and parents, to be faithful to last wishes, and 2:182 more or less demands the creation of a probate and family court to resolve differences regarding wills. That’s all fine, and not entirely unlike the Anglo-Saxon common law of wills and trusts, and least where the law of intestacy (death without a good will) is concerned. Transfers of property to the next family generation below yours that has living members is a default rule in most versions of the common law of intestacy, with parents being second in line in many cases, and everyone is familiar with the monarchical rule that the eldest son is automatically the sole inheritor unless the deceased makes a contrary affirmation in a proper will.

The only difference is that the Qur’an does not act as a default rule in the way that the Anglo-Saxon common law of intestacy does, it is a moral commandment. A literal reading of 2:180 actually requires a Muslim to make a gift to their dead parents if such is the case. I much prefer the massive complexity of Anglo-Saxon common law (me from my second year of law school is having a seizure or a stiff drink just at the thought).

183. O ye who believe! Fasting is prescribed to you as it was prescribed to those before you, that ye may (learn) self-restraint,-
184. (Fasting) for a fixed number of days; but if any of you is ill, or on a journey, the prescribed number (Should be made up) from days later. For those who can do it (With hardship), is a ransom, the feeding of one that is indigent. But he that will give more, of his own free will,- it is better for him. And it is better for you that ye fast, if ye only knew.
185. Ramadhan is the (month) in which was sent down the Qur’an, as a guide to mankind, also clear (Signs) for guidance and judgment (Between right and wrong). So every one of you who is present (at his home) during that month should spend it in fasting, but if any one is ill, or on a journey, the prescribed period (Should be made up) by days later. Allah intends every facility for you; He does not want to put to difficulties. (He wants you) to complete the prescribed period, and to glorify Him in that He has guided you; and perchance ye shall be grateful.

Back to religious laws – sort of. Even though 2:184 begins with a religious commandment, it makes much more concessions to context than a lot of other religious texts generally do. The Ten Commandments do not say, “covet not thy neighbor… unless her possessions are really, really cool;” they are more or less unconditional. 2:184, however, requires fasting and charity… unless you’re sick and can’t afford it. It’s a step in the right direction, and is certainly practical enough in the context of the man Muhammed dreaming of a society where everyone should be reasonably expected to actually follow the rules, which is a lot easier when those rules brook contextual complication.

186. When My servants ask thee concerning Me, I am indeed close (to them): I listen to the prayer of every suppliant when he calleth on Me: Let them also, with a will, Listen to My call, and believe in Me: That they may walk in the right way.
187. Permitted to you, on the night of the fasts, is the approach to your wives. They are your garments and ye are their garments. Allah knoweth what ye used to do secretly among yourselves; but He turned to you and forgave you; so now associate with them, and seek what Allah Hath ordained for you, and eat and drink, until the white thread of dawn appear to you distinct from its black thread; then complete your fast Till the night appears; but do not associate with your wives while ye are in retreat in the mosques. Those are Limits (set by) Allah. Approach not nigh thereto. Thus doth Allah make clear His Signs to men: that they may learn self-restraint.

Regulations for the Ramadan fast: you can have sex during the night, but no afternoon delights while you fast. Clearly the intent here is to represent the Ramadan fast as part of a constellation of self-denials instead of just a literal fast. I have no particular use for Ramadan, but I do like the poetry of “they are your garments and ye are their garments.”

188. And do not eat up your property among yourselves for vanities, nor use it as bait for the judges, with intent that ye may eat up wrongfully and knowingly a little of (other) people’s property.

A moral prohibition against profligacy, and a legal prohibition on judicial graft. It is puzzling why 2:188 would only specifically prohibit bribery of judges to prevent theft, unjust enrichment, or inequitable windfalls, but that’s what the verse says on a literal reading. That is to say, it is woefully inadequate, but Muhammed is trying.

189. They ask thee concerning the New Moons. Say: They are but signs to mark fixed periods of time in (the affairs of) men, and for Pilgrimage. It is no virtue if ye enter your houses from the back: It is virtue if ye fear Allah. Enter houses through the proper doors: And fear Allah. That ye may prosper.

Ramadhan again. As I’ve already discussed, Muhammed’s new religion is more syncretic than its most stalwart will admit. It mixes Judaism, pre-Islamic Arabic religions, Christian liturgy, and all manner of other ideas and theologies together, and has firm historical antecedents for much of its most important themes and tropes. Muhammed wants to keep the ancient sanctity of the cycles of the moon, which is of sufficient significance in the human psyche that it occurs in religions around the world that could never have encountered each other, but to deprive it of its “pagan” importance. Yes the New Moon is important, says Muhammed, but only because it times Ramadan and the Hajj (the trip to Mecca Muslims are supposed to make at least once in their lives if they can afford it).

190. Fight in the cause of Allah those who fight you, but do not transgress limits; for Allah loveth not transgressors.
191. And slay them wherever ye catch them, and turn them out from where they have Turned you out; for tumult and oppression are worse than slaughter; but fight them not at the Sacred Mosque, unless they (first) fight you there; but if they fight you, slay them. Such is the reward of those who suppress faith.
192. But if they cease, Allah is Oft-forgiving, Most Merciful.
193. And fight them on until there is no more Tumult or oppression, and there prevail justice and faith in Allah. but if they cease, Let there be no hostility except to those who practise oppression.

This is a primer on international law and the laws of war for Muslims. I am dying to know exactly what “limits” Muhammed had in mind; there is no academic theory that I know of holding that some specific incident or contemporary practice would have inspired this line (possibly Muhammed’s treatment of enemy prisoners after the Battle of Badr but that is a guess). 2:191 is a macro-scale version of the “Law of Equality” discussed in verses 178-179 except that it does recognize the contrition of the aggressor as having some significance (instead of the family of the victim).

There is some good material in this section. The chopped-up parts of verses that I will preserve in the final Jefferson Qur’an are:

2:180 When death approaches any of you, if you leave any goods, you should make a bequest to parents and next of kin, according to reasonable usage.
2:181 If anyone changes the bequest after hearing it, the guilt shall be on those who make the change.
2:182 But if anyone fears partiality or wrong-doing on the part of the testator, and makes peace between the parties concerned, there is no wrong in him.
2:190 Fight those who fight you, but do not transgress limits.

“Should” is a sufficient word in 2:180 to maintain a worthy moral prescription without straightjacketing people into giving their money to parents they don’t like or bratty nephews and nieces. 2:181-182 is an unequivocally reasonable command not to mess with peoples’ final wills and testaments. I kept only as much of 2:190 as needed to preserve the also perfectly reasonable order that one should fight a war in self-defense, but that there are limits beyond an eye for an eye, especially when one is talking about conflict on an international scale.

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Surah 2:153-177: salvation for… pretty much whoever? For Muslims only? Why not both!

We turn now from a long string of invective against “the Jews,” Christians, and whoever the Sabians are to a new theme. This part of the Surah 2 is more about Islamic nation-building; I’ll break up the inestimable Yusuf Ali’s translation below a little bit to help explain some of what we are looking at here. The Qur’an’s weird essentialism (that Jews are, as a people, essentially or innately apostate from the “Islamic” teachings of their ancestors) is not consistently applied – in this section you will see that not all Muslims, for example, are created equal.

Take it away, Yusuf:

153. O ye who believe! seek help with patient perseverance and prayer; for Allah is with those who patiently persevere.
154. And say not of those who are slain in the way of Allah. “They are dead.” Nay, they are living, though ye perceive (it) not.

This sentiment likely makes more sense after one of the more significant events in early Islamic history: the Badr campaign, or the Battle of Badr, which marked the beginning of open hostilities between the Muslims and Jews of Medina and which culminated in the outright expulsion of many of Muhammed’s politico-theological opponents, and also saw the beginnings of open hostilities with the despised Quraysh tribe. The Quraysh were, in fact, Muhammed’s own tribe, but between their mercantile strength in the Arabian peninsula and their refusal to join Muhammed’s growing religion, and likely the uncomfortable suggestion that there could be something banal or worldly about the blood flowing in the Prophet’s veins, they made a natural target.

It therefore would have been an important part of Muhammed’s sermons after these battles to hearten his followers with a common religious refrain: the certain knowledge that those who live and die by the sword ascend to special treatment in the hereafter.

155. Be sure we shall test you with something of fear and hunger, some loss in goods or lives or the fruits (of your toil), but give glad tidings to those who patiently persevere,
156. Who say, when afflicted with calamity: “To Allah We belong, and to Him is our return”:-
157. They are those on whom (Descend) blessings from Allah, and Mercy, and they are the ones that receive guidance.
158. Behold! Safa and Marwa are among the Symbols of Allah. So if those who visit the House in the Season or at other times, should compass them round, it is no sin in them. And if any one obeyeth his own impulse to good,- be sure that Allah is He Who recogniseth and knoweth.
159. Those who conceal the clear (Signs) We have sent down, and the Guidance, after We have made it clear for the people in the Book,-on them shall be Allah.s curse, and the curse of those entitled to curse,-
160. Except those who repent and make amends and openly declare (the Truth): To them I turn; for I am Oft-returning, Most Merciful.
161. Those who reject Faith, and die rejecting,- on them is Allah.s curse, and the curse of angels, and of all mankind;
162. They will abide therein: Their penalty will not be lightened, nor will respite be their (lot).
163. And your Allah is One Allah. There is no god but He, Most Gracious, Most Merciful.

First, a historical note on verse 158: Safa and Marwa are hills between Mecca and Medina (Yathrib) of a certain theological significance in Islam. Probably owing more to their significance as points of military importance during the prolonged conflicts between the Muslim community of Medina than to the bizarre re-telling of the story of Abraham and Hagar that has survived in Islamic tradition in those hills (you can read about it in the wikipedia link above and in subsequent posts here), they are used here as metaphors for one of many inconsistent solutions to the “Problem of Evil” in Islam.

The Problem of Evil is a recurring theological dilemma for monotheistic religions. I spent a good deal of my undergraduate work building a thesis against Alvin Plantinga’s own response to this problem so I’ll try not to get too long-winded here, but the long and short of it is the old refrain of “if God is real, why do bad things happen?” (I shudder to reduce the problem so savagely but, there it is). Verse 155 makes it seem like Allah uses suffering to test us: “glad tidings” are for those who “persevere” in the face of the horrible things that Allah either causes or allows to happen, as if this is satisfying. Verse 157 goes on to say that Allah in fact rewards those who suffer and persevere, though this likely is of little comfort to those who suffer and die without the promised reward.

There are also two inconsistent views of salvation in this very short passage. Verse 158 gives us a nice, universalist view of salvation: if you obey an internal impulse towards goodness, Allah will notice this and reward you. This verse does not even ask that you believe anything in particular. But just two short verses later in verse 160, one must actually openly declare “the Truth” (stated throughout Surah 2 as knowledge of Allah’s own words) in order to enjoy eternal reward. So in verse 158, goodness is its own reward; in verse 160-163, one must openly confess the narrow theological dictates of Islam in order to be saved. C’est la vie, insh’Allah.

164. Behold! in the creation of the heavens and the earth; in the alternation of the night and the day; in the sailing of the ships through the ocean for the profit of mankind; in the rain which Allah Sends down from the skies, and the life which He gives therewith to an earth that is dead; in the beasts of all kinds that He scatters through the earth; in the change of the winds, and the clouds which they Trail like their slaves between the sky and the earth;- (Here) indeed are Signs for a people that are wise.

Back to the “suffering is an opportunity to persevere and receive the gifts of Allah” view.

165. Yet there are men who take (for worship) others besides Allah, as equal (with Allah.: They love them as they should love Allah. But those of Faith are overflowing in their love for Allah. If only the unrighteous could see, behold, they would see the penalty: that to Allah belongs all power, and Allah will strongly enforce the penalty.
166. Then would those who are followed clear themselves of those who follow (them) : They would see the penalty, and all relations between them would be cut off.

And back to the “narrow theological dictates of Islam” view of salvation.

167. And those who followed would say: “If only We had one more chance, We would clear ourselves of them, as they have cleared themselves of us.” Thus will Allah show them (The fruits of) their deeds as (nothing but) regrets. Nor will there be a way for them out of the Fire.

This actually fills in a theological gap that beleaguers Biblical theologians. There is no explicit statement in the Bible that salvation is only for the living; later Christian theologians have had to convince their flock that they can’t just take their chances in this life and repent after they’ve come to discover the “reality” of Hell in the afterlife. But in Islam, this is a clear statement that salvation is for the living alone. This also makes sense of the necessity of rehabilitating the key figures of the Jewish scriptures as good Muslims: it would be hard to affiliate the new religion with the “authentic” old religion if everyone of Abdhullah’s generation on back automatically went to Hell for not obeying at least half of the salvation views presented in this chapter (Abdullah, “Slave of Allah,” was Muhammed’s father).

Beyond, of course, the political expediency of being able to frame “the Jews” of Yathrib as apostates of the true religion, instead of as members of a (populous and political powerful) “false” religion.

168. O ye people! Eat of what is on earth, Lawful and good; and do not follow the footsteps of the evil one, for he is to you an avowed enemy.
169. For he commands you what is evil and shameful, and that ye should say of Allah that of which ye have no knowledge.

This is likely a reference to Jewish dietary law, which Muslims also follow. “The evil one” is probably a reference to the Adversary, the antagonist of the biblical story of Job and many others. You may know him by the anachronism “Satan.”

170. When it is said to them: “Follow what Allah hath revealed:” They say: “Nay! we shall follow the ways of our fathers.” What! even though their fathers Were void of wisdom and guidance?
171. The parable of those who reject Faith is as if one were to shout Like a goat-herd, to things that listen to nothing but calls and cries: Deaf, dumb, and blind, they are void of wisdom.

Verse 171 has one of my favorite visual metaphors of the Qur’an. It takes a rather dim view of people who are not Muslims and is actually a rather defeatist attitude for an evangelist of Allah to take (why would Muhammed try to spread his religion to anyone if most people are like wild animals, who heed bleating and barking more than reasoning and theology, after all) and frankly, discouraging evangelists is a view I rather like.

172. O ye who believe! Eat of the good things that We have provided for you, and be grateful to Allah, if it is Him ye worship.

Contrast with verse 168, which says only to eat that which is lawful as opposed to that which Allah has provided. Are we to believe, then, that kosher laws apply to literally everything, or that there are some foods on this good Earth that Allah did not create? From whence then cometh they?

173. He hath only forbidden you dead meat, and blood, and the flesh of swine, and that on which any other name hath been invoked besides that of Allah. But if one is forced by necessity, without wilful disobedience, nor transgressing due limits,- then is he guiltless. For Allah is Oft-forgiving Most Merciful.

Contrast with verse 172!

174. Those who conceal Allah.s revelations in the Book, and purchase for them a miserable profit,- they swallow into themselves naught but Fire; Allah will not address them on the Day of Resurrection. Nor purify them: Grievous will be their penalty.
175. They are the ones who buy Error in place of Guidance and Torment in place of Forgiveness. Ah! what boldness (They show) for the Fire!
176. (Their doom is) because Allah sent down the Book in truth but those who seek causes of dispute in the Book are in a schism Far (from the purpose).

Another gloomy verse for those who might wish Islam to be a universalist religion – ie, those who rather enjoy verses like 2:158 above.

177. It is not righteousness that ye turn your faces Towards east or West; but it is righteousness- to believe in Allah and the Last Day, and the Angels, and the Book, and the Messengers; to spend of your substance, out of love for Him, for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the ransom of slaves; to be steadfast in prayer, and practice regular charity; to fulfil the contracts which ye have made; and to be firm and patient, in pain (or suffering) and adversity, and throughout all periods of panic. Such are the people of truth, the Allah.fearing.

Contrast this verse with those verses above for a third view of salvation. It is not enough to mindlessly obey the silly rituals of Islam, the very ones Muhammed has ordained as profound Truth revealed by God, nor is it enough to be morally good: you have to be good and charitable and believe in Allah and the Last Day and Angels and the Qur’an and Muhammed and your own contracts (!) in order to reach heaven.

I have a theory on the rather out-of-place commandment in 2:177 to follow “the contracts which ye have made.” I try to carefully flag the state of academic consensus when I relay it to you; this theory comes from no academic work that I know of, and if it does, no plagiarism is intended, nor is it intended to reflect the views of any of the many eminent scholars I’ve read and recommended to you so far.

My theory is that the Qur’an’s inclusion of contract law in the criteria for salvation (which sounds silly just writing it) serves a purpose somewhat similar to that of the Eleventh Amendment to the United States Constitution. The wikipedia article does not do justice to a big part of its historical context. Late 18th/early 19th century America was basically in a state of economic free-fall. In order to assure foreign creditors (who had financed the Revolution and who the American government knew would be financing the inevitable next war with Britain, which came to pass in the War of 1812) and to encourage foreign investment, the 11th Amendment was passed. Surely as wikipedia states this was in part to clarify the authority of the federal government to hear lawsuits against and between individual US states, but it also served the purpose of reassuring foreign creditors that their actions for collection of bad debts would not be overridden by American courts, guaranteeing that foreign creditors and investors would always have at least some remedy available to them should they choose to invest in an American venture.

Likewise, Muhammed, being a merchant himself, knew that the Medinan community’s greatest strength was its traditional commercial power and role as a crossroads of the southern Arabian peninsula. Likewise, Muhammed had to create some language in the Qur’an that would demand of his own followers that they obey the fundamental precepts of commerce in order to continue the project of Islamic nation-building that will become much clearer in the next couple of posts. Otherwise, it would be very easy for the community to become alienated from the greater world of trade (and therefore evangelism).

It would have been easy for Muhammed to say “fulfill your contracts with other Muslims” (in nicer language), but he did not. He simply said to fulfill your contracts. In contrast to the sublime racial wisdom of the 17th Ferengi Rule of Acquisition (I love Star Trek and despise myself for waiting this long to make a reference). This only makes sense if Muhammed saw a role for his community in the greater world beyond the walls of Yathrib, and will make even more sense as we descend over the next couple of posts deeper into the Qur’an’s insanely detailed version of the common law of contracts.

To conclude, here is what remains from today’s section in the Jefferson Qur’an:

2:168 O you people! Eat of what is on earth, lawful and good; and do not follow the footsteps of Evil.

2:170 The say: “Nay! We shall follow the ways of our fathers.” What! Even though their fathers were void of wisdom?

2:177 It is not righteousness that you turn your faces towards East or West; but it is righteousness to spend of your substance for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the ransom of slaves. Practice regular charity, fulfill the contracts which you have made, and be firm and patient in pain or adversity and throughout all periods of panic.

Note the creative editing necessary to make some basic moral sense out of these. Extracted from the religious context, I have no problem with eating what is “lawful.” Verse 170 serves the fine purpose of excoriating those who base their beliefs about cosmos-scale moral and philosophical questions on what their forebears believed. And I think that the innate virtue of a savagely-edited 2:177 rather speaks for itself.