Authority to Legislate Belongs to Allah
In the name of Allah, the Merciful, the Beneficient
And (forbidden to you are) all married women, save those whom your right hands possess. This is Allah’s decree, as it applies to you. Lawful to you are all women other than these, provided that, offering them of your own possessions, you seek to take them in wedlock, not in fornification. (Women, An-Nisaa: 4:23-24)
Islam makes family the constituent unit of society and “duty,” the topmost considera-tion in the preservation of the family. “ Forbidden to you (in marriage) are all married women, save those whom your right hands possess.” This exception is made in the case of women who fell captives to Muslims in their campaigns of Jihad. These women might have had husbands in their countries which remained at war with the Muslim society. Thus, their relationships with their unbelieving husbands were severed by the physical distance which separated them. They were in the same position as those who were unmarried since they had no husbands in the land of Islam. It was sufficient to ascertain that they were not pregnant by waiting for them until they had one menstruation period. After that, it was legitimate for them to get married if they became Muslims. Alternatively, it was legitimate for a person to whom such a captive woman belonged, to have sex with her as one whom his right hand possessed. This applied whether the woman became a Muslim or not.
In the matter of imposing slavery on war captives, Islam adopted the rule of equal treatment with its enemies. Islam has always been superior in its kind treatment of slaves as human beings. This situation was inevitable because the enslavement of war captives was an international institution which could not be abolished unilaterally by Islam. Otherwise, Muslim captives would have been enslaved while unbelievers who fell captives to Muslims would remain free. That would have tilted the balance in the favour of un-Islamic societies. They would have had more incentives to attack the Muslim state, knowing that their captives would never be enslaved.
In view of such situations, it was inevitable that there would be unbelieving women falling captives to the Muslim society. What to do with them? Their natural needs are not totally satisfied with food and drink. There is another need which is necessary for them to satisfy. Otherwise, they would have resorted to promiscuity which endangered the whole society. Muslims could not marry them as long as they remained unbelievers. There was only one way out. That is, an unbelieving captive woman was lawful for her master only after making sure that she was not pregnant and after her relationship with her former unbelieving husband was totally and physically severed.
The verse goes on to explain which women are lawful to marry. Before it does that, however, it points out the source of this legislation. It is Allah, the only one who has the authority to forbid something and legitimise another and to issue legislation in all matters whatsoever: “ This is Allah’s decree as it applies to you.” It is then a directive from Allah, not a question of desire, tradition or local institution. People must observe what He legislates for them, and abide by it. They are accountable for its implementation.
Most of the women whom we are forbidden to marry, according to the Quran, were also forbidden in the Arabian society in pre-Islamic days. The only ones who were not forbidden, albeit with reluctance, were former wives of parents and having two or more sisters as wives at the same time. The Quran does not simply endorse a practice which was followed in pre-Islamic days. We are told that this prohibition is “Allah’s decree as it applies to you.” This is a point which merits careful consideration as it relates to the essence of Islamic faith. Moreover, its efforts are highly important to us in our practical lives.
Islam considers Allah’s commandment and permission as the only basis for legislation. The authority to legislate belongs to Him in the final resort. Whatever is not based on this principle is essentially invalid and cannot be subsequently legitimised. Hence, whatever prevails in an ignorant society which includes every human situation which is not based on the only true principle which acknowledges the authority to legislate solely to Allah, is invalid. This applies to concepts, values, standards, traditions, rules, regulations and laws. When Islam rules, it deals with life as a whole. It begins by abrogating all values, traditions and laws of ignorance in order to establish its own system. If in the process, it approves a tradition which had prevailed in former, ignorant days, it does not accept it with its original foundation. It establishes it anew and gives it its own authority with Allah’s permission. Thus, the practice of pre-Islamic days no longer exists while a new practice is established in its stead, which enjoys Allah’s authority.
Similarly, when Islamic jurisprudence refers to “tradition” in certain matters, it imparts to tradition a new authority based on Allah’s permission. Hence, tradition acquires in these particular questions, the validity of Islamic law. It is no longer society which gives tradition its authority. That authority is now imparted by the only Legislator who has approved of it as a source of judgement in certain cases. This is a basic principle to which reference is made by the Quranic statement: “ This is Allah’s decree as it applies to you.” It is further endorsed by other statements. Every time a legislation is mentioned in the Quran, a reference is made to its source which gives it its essential validity. When the Quran refers to the laws, traditions and concepts of non-Islamic societies, it very frequently follows that reference with a clear statement that these, “ have not been given any authority by Allah.” It thus emphasizes their invalidity.
This principle is different from the other basic Islamic principles which states that all things and matters are initially legitimate, unless they are made unlawful by a clear statement. Things are made initially legitimate by Allah’s command and permission. Hence, this legitimacy enjoys Allah’s authorisation. What we are speaking of here concerns what ignorant societies legislate for themselves. That is initially and essentially invalid. It becomes valid only when Allah’s law endorses any part of it granting it proper legitimacy.