Hijab in the Scales of Ethics, Soroush Dabbagh

Note. In this article, the various types of relationships between religion and ethics are first explained, and reasons are presented in favor of the "Minimalist Theory of Divine Command." Then, a theoretical framework is provided for formulating and resolving the conflict between certain jurisprudential rulings and ethical rulings. Subsequently, the issue of hijab and covering the neck and hair is discussed; citing the opinions of some jurists and Quranic scholars who believe that not covering the hair and neck does not carry religious prohibition, the issue of hijab is discussed from an ethical perspective. Borrowing from David Ross's theory of "prima facie duties," it is argued that not covering the hair and neck in the present day carries no moral reprehensibility and is not an instance of unchaste action. Finally, it is emphasized that confining oneself to conventional hijab, in accordance with the "Minimalist Theory of Divine Command," does not entail disregarding the intention of the Lawgiver and God. Therefore, both livelihood-oriented believers, who are solely concerned with jurisprudential rulings on hijab, and knowledge-oriented believers, who also value rational ethical reasons and seek to establish a balance between jurisprudence and ethics, weighing jurisprudential rulings on the scales of ethics, can acknowledge that not covering the hair and neck, in principle, carries no moral reprehensibility. Those who wish to become familiar with the theoretical and philosophical framework of the discussion would do well to read the article from the beginning; otherwise, it is better to take up the article from the third section (Compulsory Hijab and Voluntary Hijab).

1. Types of Relationships between Religion and Ethics

In the realm of moral philosophy, one can inductively discern and distinguish multiple relations between religion and ethics: semantic, ontological, epistemological, and psychological. One can speak of the semantic dependence or independence of ethics on religion; in other words, one can ask whether the meanings of ethical terms are obtained solely with the aid of religious texts, or whether they possess meaning beforehand and independently of religious texts. I believe the meanings of ethical terms are established independently of religion. In fact, it is not the case that in order to understand what justice, benevolence, evil, and goodness mean, one must first refer to religious texts. Semantically, ethical terms possess meaning in advance, and according to the "use theory of meaning"[2], their semantic breadth and narrowness emerge within a linguistic community as a result of the application of terms in various contexts by language users. Reflection on the ethical teachings of the Quran also confirms this. When God says in the Quran, "Indeed, Allah commands justice, and benevolence, and giving to relatives, and forbids indecency, and wrongdoing, and oppression. He admonishes you that perhaps you will remember"[3] and "This is the Book about which there is no doubt, a guidance for the God-conscious"[4], He speaks with a view to the addressees of the revelation's understanding and conception of the conventional, pre-religious meanings of concepts such as "justice," "benevolence," "indecency," "wrongdoing," and "God-consciousness," and the address and communication took place with a view to the conventional conception, understanding, and instances of these concepts. Essentially, the addressees of the revealed word did not have an understanding of the meanings of the concepts of justice and benevolence that was transhistorical, nor could they have been the addressees of a message that called them to a transhistorical justice and benevolence. It is also narrated from the noble Prophet of Islam: "I have been sent to perfect noble traits of character"[5], and it is narrated from Imam Hussein that on the day of Ashura, he said to the army of Umar ibn Sa'd: "If you have no religion, and you do not fear the Day of Resurrection, then be free men in your world"[6]; the presupposition of both statements is that, to some extent, one can have a pre-religious understanding and conception of ethics and seek its compatibility and harmony with religious ethics. Furthermore, one can inquire into the ontological dependence or independence of ethical values on religion. Generally, those who believe in the "maximalist divine command theory"[7] hold that one cannot speak of the determination of ethical properties and principles in the external world without resorting to sacred texts such as the Torah, the Gospel, and the Quran; just as they believe one cannot speak of the meanings of ethical terms independently of religious texts. According to their view, both the determination of ethical properties such as goodness, badness, ought, and ought-not in the surrounding world is contingent upon God's will being attached to them, and to ascertain the meanings of ethical concepts, one must refer to the religious text.[8] At the same time, according to their view, the attainment of justified ethical knowledge is also solely contingent upon referring to religious texts, and the use of epistemic sources independent of religion, such as conventional reason, is not knowledge-producing. This means that those who assert the ontological dependence of ethics on religion necessarily also accept epistemological dependence, although the reverse is not necessarily true. That is, it is possible for someone to accept the epistemological dependence of ethics on religion but not accept ontological dependence. In contrast, most proponents of the "minimalist divine command theory"[9] believe that ascertaining the meanings of ethical terms is not contingent upon referring to religion; just as the determination of ethical properties in the external world is not contingent upon God's will being attached to them; rather, they exist independently of religion. However, the attainment of justified ethical knowledge is contingent upon referring to religion and is not obtained independently. At the same time, some proponents of the "minimalist divine command theory" emphasize that our reason can discover justified ethical knowledge. According to this conception, human reason, in the realm of ethics, discovers, confirms, and deems justified precisely that which is God's will. In fact, in this conception, reason does not follow the sacred text; rather, it independently discovers ethical rightness and wrongness; a discovery that is compatible and harmonious with God's will and command.[10] Some of the Mu'tazila had such an understanding of the relationship between religion and ethics, and by extension, reason and revelation. According to their conception, ethics has no epistemological dependence on religion, and one must speak of the epistemological authority of ethical claims independently of religion. In the Shi'a tradition, in the contemporary era, philosophers such as the late Tabatabai and the late Mutahhari also spoke of the independence of ethics from religion.

بدین معنا که مطابق با رأی ایشان می توان به نحو مستقل از متون دینی درباره اوصاف اخلاقی و حسن و قبح ذاتی افعال سخن گفت و بحث و فحص فلسفی کرد؛ با این تفاوت که طباطبایی در مقاله ششم کتاب اصول فلسفه و روش رئالیسم، ادراکات اخلاقی را در زمره «ادراکات اعتباری» به حساب می آورد، ادراکاتی که کاشفیتی از جهان پیرامون ندارند و بیش از هر چیز از اعتبارعقلا پرده بر می گیرند؛ حال آنکه مطهری از حسن و قبح ذاتی افعال سخن می گفت و آنرا بر صدر می نشاند.[۱۱] در سنت فلسفه اخلاق مغرب زمین هم فیلسوفی چون کانت معتقد است که می توان درباره فرامین عقل عملی که از سوژه استعلایی و صورتبندی‌های چند گانه «امر مطلق»[۱۲] استخراج می شود، بحث و فحص عقلی کرد. در واقع، او از عدم ابتناء معرفت شناسانه اخلاق بر دین سخن گفته و از این مدعا دفاع کرده است. درباره رابطه روان شناختی میان دین و اخلاق چه می توان گفت؟ تصور می کنم به خصوص در جوامع دینی می توان از ابتناء روانشناختی اخلاق بر دین سخن به میان آورد. در بسیاری از موارد برای نهادینه شدن انجام و یا ترک یک فعل اخلاقی در یک جامعه دینی، می توان بر ابتناء روانشناختی اخلاق بر دیانت تأکید کرد. به تعبیر دیگر در اینجا اخلاق، مستظهر به پشتیبانی دین است. هر چند به مدد قوه عاقله، می توان رواییِ کثیری از اصول اخلاقی را به دست آورد؛ اما تأکید بر آنها به مدد اخلاق دینی، منبه کثیری از متدیّنان است و به ایشان انگیزه انجام و یا ترک فلان و بهمان کار را می دهد. مثلا، گزاره «دروغ گویی بد است» را در نظر بگیرید. درستی این گزاره را می توان با استدلال‌های عقلانی بدست آورد. در قلمرو اخلاق هنجاری، «فایده گرایی»[۱۳] میگوید دروغگویی بد است، چون متضمّن بیشینه شدن ضرر و کمینه شدن فایده برای بیشترین افراد جامعه است. همچنین، «وظیفه گرایی»[۱۴] میگوید دروغ گویی متضمّن نفی یکی از فرامین عقل عملی است؛ در واقع، متضمّن نقضِ صورتبندی اول «امر مطلق» است که عبارت است از «اصل جهان شمولی پذیری».[۱۵] از سوی دیگر، هنگامیکه یک دیندار به متن دین مراجعه می کند، می بیند که مطابق با آموزه‌های دینی، «دروغگو دشمن خداست». انگیزه اصلی عموم دینداران برای راست گفتن و اجتناب از دروغ گویی، فارغ از بحث‌های عقلانی صرف در این باب، دشمن خدا قلمداد شدنِ دروغگوست. پس اخلاق می تواند از منظر روانشناختی بر دین مبتنی باشد؛ خصوصا در جوامعی که دینی هستند و دین در آن جوامع نفوذ زیادی دارد، می توان از ابتناء روانشناختی اخلاق بر دیانت سخن گفت و آن را تأیید کرد. تا کنون اصناف چهارگانه روابط میان اخلاق و دین را به نحو مختصر مرور کردیم.[۱۶] چنانکه آوردم، ابتناء دلالت شناختی اخلاق بر دین ناموجه است؛ چرا که دست کم باید معنای برخی از واژگان اخلاقی را، پیش از رجوع به متون دینی دانست و با مد نظر قرار دادن آنها به سراغ متن دینی رفت و به فهم گزاره‌های اخلاقی دین همت گمارد. علاوه بر این، به باور من « نظریه حداکثری فرمان الهی» که بر ابتناء وجود شناسانه اخلاق بر دین مبتنی است، ناموجه است؛ چرا که همانطور که برخی متذکر شده اند؛ از لوازم تن دادن به این نظریه، تبعیت از فرامین اخلاقی‌ای است که با عقل متعارف ناسازگاراند وغیر اخلاقی قلمداد می شوند.[۱۷]مثلا اگر خدا فرمان داده باشد که باید کودک بی‌گناه را شکنجه کرد، شهودهای اخلاقی ما می گوید انجام این فعل خطاست. در واقع، این تلقی خدا را مبسوط الید قلمدادمی کند، به نحویکه اراده و خواست او بر همه چیز سبقت می گیرد؛ حتی بر بدیهیات عقلی و شهودهای اخلاقیِ عرفی. مطابق با این تلقی، فرامین اخلاقی خداوند من عندی و «گزافی»[۱۸] است و نمی توان آنرا با هیچ معیار و محکی سنجید. برخی از فیلسوفان اخلاق معاصر نظیر رابرت آدامز، تلقی معتدلی از نظریه فرمان الهی به دست داده اند. مطابق با این تلقی، ما از فرامین اخلاقی خدایی تبعیت می کنیم که می دانیم « مهربان» است؛ اگر چنین باشد، می دانیم که چنین خدایی به شکنجه کردن کودکان بی‌گناه امر نمی کند.[۱۹] به نظرم چنین تلقی‌ای از نظریه فرمان الهی مشکل قرائت پیشین را ندارد؛ اما اولا دست کم مخاطبان کلام خداوند، از منظر دلالت شناختی، باید معنای واژه « مهربان» را پیش از رجوع به متن دین بدانند؛ ثانیا، مطابق با این تلقی، در نهایت درک و تلقی عرفی ما از حدود و ثغور مفهوم مهربانی و دیگر مفاهیم اخلاقی و گزاره‌های اخلاقی بنیادین، فرامین خداوند را مقید می کند. The implication of this statement is that the “maximalist divine command theory” is reduced to a version of the “minimalist divine command theory,” according to which our reason has full involvement in the “discovery” of moral permissibility and impermissibility, unveiling moral good and evil that are in proportion and harmony with God’s will—not something parasitic, subordinate, and accidental that plays no role in this process. Personally, I sympathize with this interpretation of the “minimalist divine command theory,” consider it justified, and employ it in formulating the issues at hand. Let us bear in mind that this discussion arises when we formulate the relationship between religion and ethics under the doctrines of the Abrahamic religions, because the matter of God’s will becomes central here. In Eastern religions, we are not dealing with an “anthropomorphic”[20] God, and consequently, there is no mention of His will. The grounding or non-grounding of ethics in religion acquires a determinate meaning only when God’s desire and will are at stake. The famous statement by Ivan in Dostoevsky’s novel The Brothers Karamazov that “if God does not exist, everything is permitted” pertains precisely to this point.

2. The Conflict Between Jurisprudential and Ethical Rulings

It is conceivable that, on some occasions, conventional moral rulings may conflict with religious rulings, or at least not align with them; while in many cases there is considerable overlap between the two. In the parlance of logicians, the relationship between moral rulings and religious rulings is one of "generality and specificity in some respects." The implication of this statement is that there is both a common ground between religious rulings and moral rulings, and a point of divergence can be found between them; that is, some moral rulings fall outside the sphere of religiosity and appear to conflict with religious teachings. What is meant by religion in this context is the jurisprudential rulings of religion, which may conflict with moral teachings. When speaking of religious teachings, one must bear in mind that religion also comprises ontological and cosmological teachings and beliefs; teachings that are not evaluative and normative [21] so as to directly clash with moral rulings; rather, they are statements concerning matters of fact. For example, when religion speaks of the human being, the heavens, the world after death, and so on, these claims are ontological, cosmological, and anthropological. In these instances, no direct conflict arises between ethics and religion. However, other religious teachings that are normative and manifest themselves under moral and jurisprudential teachings can, in principle, be incompatible and in conflict with conventional moral rulings. The moral precepts present in religion overlap significantly with the rulings of secular morality; but jurisprudential rulings, on some occasions, conflict with conventional and secular moral rulings. Consider, for instance, the Ten Commandments found in the Bible, such as "You shall not murder," "You shall not bear false witness," and "You shall not commit adultery." These have considerable overlap with the rulings of secular morality; but certain jurisprudential rulings, such as "apostasy" and "stoning," are incompatible with the achievements of secular morality. Thus, normative religious teachings can, in principle, clash with secular moral rulings and conflict with them. When conflict arises, a person who wishes to maintain a coherent epistemic system must, by examining moral rulings and assessing the relationship between jurisprudential rulings and moral rulings, seek a balance and equilibrium between the two. Methodologically, I adhere to what Rawls terms "reflective equilibrium" [22] (like the equilibrium established in chemical reactions on both sides of the reaction); Rawls articulates this notion regarding our various intuitions in different branches of knowledge. [23] By keeping this methodological doctrine in view, one can organize one's epistemic system. The issue is that we have different intuitions in the disciplines of philosophy, mysticism, religion, psychology, sociology, history, physics... and these intuitions together constitute the set of our beliefs. When our moral intuitions conflict with our intuitions in mysticism, psychology, or with jurisprudential teachings, we must strive for this equilibrium to resolve the conflict. To better understand this conflict, we must delve into the anthropological, ontological, and epistemological foundations and principles of those intuitions and see where these conflicts originate. The issue can also be formulated from an epistemological perspective. In contemporary epistemology, we encounter various schools; one of these schools among the theories of "justification" [24] is "moderate foundationalist-coherentism," [25] which, compared to other schools, appears more justified and promising. [26] One of the champions of this school is Robert Audi, the contemporary epistemologist and philosopher of ethics and religion. [27] According to this epistemological school, our various intuitions in the realms of religion, sociology, ethics, psychology, biology, and so on possess "prima facie epistemic authority." [28] When these intuitions are placed alongside one another, through their mutual influence and interaction, the degree of their epistemic authority increases or decreases. Through this method, one can examine various intuitions, assess the degree of their epistemic authority, and seek coherence and proportion among them; this matter, of course, is not specific to ethics and religion and also encompasses our other intuitions. Therefore, to resolve the conflict between jurisprudential rulings and moral rulings, one must, by articulating the point of contention and analyzing the ontological, epistemological, and anthropological foundations and principles of this incompatibility, in principle, endeavor to resolve the conflict. Through the mutual influence and interaction of these various and conflicting intuitions upon one another, on some occasions, jurisprudential rulings must be modified; at the same time, on some occasions, conventional moral intuitions must be refined and revised.

This reflective balancing is bidirectional, and within it, a back-and-forth between the two sides of the balance is essential. The implication of this statement is that jurisprudential rulings must be weighed in the scales of ethics, and those rulings should be deemed justified that are bound by ethical constraints and do not constitute instances of violating justice and human dignity in the present day. According to a version of the “minimalist divine command theory” with which the author sympathizes and which was explicated earlier, the justified normative rulings that are discovered and obtained in this back-and-forth and as a result of this reflective balancing are in accordance with the will and command of God.

3. Compulsory Hijab and Voluntary Hijab

The hijab of women is among the important topics in Islamic societies, which jurists, historians, researchers, and thinkers have long addressed and discussed from various angles. The majority of jurists have issued fatwas on the obligation of covering the hair of the head and the neck, and have deemed uncovering them to be forbidden. The late Motahhari was among the jurists who, with reference to the verses of Surah An-Nur and Surah Al-Ahzab, especially verse 31 of Surah An-Nur, emphasized that we have no evidence that the face (wajh) and the hands from the wrists down (kaffayn) must also be covered, and he considered the opinion of exegetes such as Zamakhshari and Fakhr al-Din al-Razi regarding the obligation of covering the face to be unjustified, believing that the 'hair' must be covered, not the 'face.'[29] Some jurists did not accept his view, although today this statement seems more or less commonplace, and many veiled women do not cover their faces and the palms of their hands. On the other hand, Amir Torkashvand, through his extensive jurisprudential and historical research, has, contrary to the well-known opinion, reached the conclusion that covering the neck and the hair of the head is not obligatory. According to his view, the religiously prescribed hijab in the era of the Prophet had different boundaries and limits and was far removed from what is prevalent among us today: "The well-known opinion regarding women's hijab consists of covering all parts of the body except the face and the hands (kaffayn)... The oldest basis for this opinion is two narrations from the Prophet:

a- Woman is 'awrah; if she steps out of the house, Satan comes to meet her.

B- When a woman reaches maturity, it is not appropriate for anything other than her face and hands (to the wrists) to be seen. However, through the investigations I conducted into each of these, it became clear that none of these narrations were originally issued from the Prophet! Moreover, their content contradicts the Prophet's conduct (Sira) and his other guidelines. Furthermore, although a portion of the first narration is constantly cited in jurisprudential texts, by tracing its full text, it has become clear that it has nothing to do with the extent of covering... Also, the well-known opinion is incompatible with the realities of the Prophet's era and cannot delineate the religiously mandated hijab of that time... Today, when we encounter the words 'maghna'eh' and 'headscarf' in religious texts, we consider them a head covering that at least conceals all the hair and neck; but it is not clear that this word had the aforementioned function in the Prophet's era and encompassed the neck and all the hair. According to the evidence available to us, the 'maghna'eh' can be considered equivalent to the men's turban, which is wrapped around the forehead and head. On this basis, believing women, after the revelation of the verse of Jilbab or Khimar, began using a turban, which was also called 'miqta'ah', 'qina'', or even 'khimar'. The turban was the crown of honor for free men... Therefore, the 'maghna'eh' and headscarf in that era can be considered as a turban, 'dastar', and 'picheh' (which naturally, firstly, is for adornment, luxury, and distinction, and secondly, does not cover the neck and most of the hair) and not the current headscarves that encompass all the hair and neck. Also, if we pay attention to the original meaning of headscarf (something placed on the head), we arrive at this same new meaning I have presented for 'maghna'eh'."[30] The late Ahmad Qabel, a student of the late Ayatollah Montazeri, held a certificate of Ijtihad from him and spoke on jurisprudential issues from the perspective of a Mujtahid. According to his opinion, what is derived from all the verses of the Quran and narrations regarding the issue of hijab does not indicate obligation, and it cannot be inferred that the religious duty of a Sharia-abiding woman is to cover the hair of her head and neck: "The non-obligation of covering the head and neck for enslaved Muslim women (which is the requirement of reliable transmitted evidence and a near-consensus inclination) indicates this very important matter: 'The visibility of the head and neck of any Muslim woman is not forbidden.' In other words, 'neither being a woman nor being a Muslim woman' is a reason for the obligation of covering the head and neck. Because 'enslaved Muslim women' were both 'women' and 'Muslims,' and covering the head and neck (and even some other parts of the body, according to the explicit statements of some jurists) was not obligatory for them. Some even believed in the reprehensibility or prohibition of head covering for enslaved Muslim women)... The issue of covering the head and neck has become a kind of 'red line,' and a sanctuary has been created for it, as if there is no duty for the researchers and jurists of the present era other than repeating platitudes and confirming common interpretations... What difference in provocativeness exists between enslaved and free Muslim women that covering the head and neck is not required for the former but is required for the free? (Considering that some enslaved people during the time of the Guiding Imams (AS) were from Iran and Europe and, in terms of hair color diversity and beauty, were more beautiful and attractive than many Arab women in Mecca, Medina, and Yemen)... Given that the essence of beauty in the area of the head and neck relates to the beauty of 'eyes, eyebrows, mouth, lips, teeth, and chin and their combination,' and Islam has not made covering them obligatory, what special attractive quality is there in a woman's hair and neck that the necessity of covering it has been so emphasized by Muslims?"[31] Mohsen Kadivar, a contemporary jurist and Islamic scholar, another student of the late Ayatollah Montazeri, also believes that what is derived from the words 'Jilbab' and 'Khimar' from the verses of Surahs Al-Ahzab and An-Nur does not indicate the obligation of a headscarf and head covering: "From the two words Jilbab and Khimar in the verses regarding women's covering in the Holy Quran (Al-Ahzab 59 and An-Nur 31), nothing more than absolute clothing is understood, and they alone do not have any appearance indicating the obligation of a head covering and headscarf. The purport of these two verses is gathering the garment and covering the chest and bosom.... The most important evidence in the issue of covering and looking has been consensus, the conduct of the Sharia-abiding community, and sometimes the practice of the Companions or the Lawgiver's concern for honors and sanctities—meaning, entirely non-verbal evidence. The specific understanding of male jurists regarding the issue of women has led to a kind of leniency and tolerance towards men and a kind of strictness and restriction regarding women. The main problem in the issue of religious hijab is not the Book and the Sunnah; the main problem has been and is the specific understanding and particular perception of most jurists regarding women, humanity, and society.unproven presuppositions that have transformed the understanding of the evidence and have no religious roots or backing."[32] Abdolali Bazargan, a contemporary Quranic scholar, also believes that hijab in the Quran does not necessarily mean covering the hair of the head and using a headscarf or veil; rather, it entails customary covering and concealing the body parts that are susceptible to arousing others by means of cloth. What is central for the Quran is maintaining privacy in the relations and interactions between men and women and covering adornments, which does not necessarily include the hair of the head and neck.[33] Taking into account the views of some contemporary jurists and Islamic scholars on the issue of hijab, I will now attempt to address the issue of hijab and covering the hair of the head and neck from an ethical (and not jurisprudential) perspective, to explore its limits and boundaries, to elucidate its ethical and normative ruling as I find it, and to assess its relation to the jurisprudential rulings on hijab. It should be noted that what I mean here is voluntary hijab, not compulsory hijab; for the unethical nature of compulsory hijab is clear and does not require much argumentation or explanation. The majority of ethicists have said that choice and free will are among the constituents of moral action; the implication of this statement is that a coerced and involuntary act has no moral value; rather, since it entails disregarding the right to choose and human dignity, it is an unethical act. If free will and choice are among the constituents of authentic faith, and the believer is one who passionately and out of contentment and desire undergoes the "faith experience," the implication of this statement is that coerced faith is a paradoxical expression and carries no weight in the scales of ethics. Hence, governments that seek to establish compulsory faith in society commit a moral error and, in practice, do not succeed. Rulers should only concern themselves with policymaking aimed at meeting the primary needs of the people, such as security, employment, health, clothing... and should entrust the secondary needs of human beings, such as art, love, religion..., to the people, civil society, and the public sphere, and should not interfere, meddle, or exercise power in these domains. Therefore, establishing compulsory hijab in society is unethical and thus to be abandoned.[34] Some Muslim thinkers, such as Abdullahi an-Na'im, believe that in a religious society where the majority of citizens are religious, in order to preserve the dignity of religious rulings, promote religious ethics, and establish healthy human relations free from hypocrisy and dissimulation, the institution of religion must be separated from the institution of government, and the implementation of religious rulings should not be backed by political power. Their views bear a close affinity to the ideas of some contemporary religious intellectuals, such as Abdolkarim Soroush and Mohammad Mojtahed Shabestari.[35] Let us pass over compulsory hijab and turn to non-compulsory hijab.[36] What can be said about voluntary hijab from an ethical perspective and its permissibility or impermissibility? To ascertain the answer to this question, one must draw upon "normative ethics."[37] Among the various schools in the realm of normative ethics, one can identify and distinguish the well-known and resonant schools of "utilitarianism," "deontology," "prima facie duties ethics,"[38] and "virtue ethics,"[39] along with their various narratives. Personally, in the realm of normative ethics, I have greater sympathy for the "ethics of prima facie duties"; hence, I will attempt to formulate the issue of hijab under this ethical school. According to the teachings of the "ethics of prima facie duties" of David Ross, the twentieth-century English philosopher, human beings in the realm of ethics possess several "prima facie duties"[40] such as "fidelity,"[41] "gratitude,"[42] "non-maleficence,"[43] "self-improvement,"[44] ... In practice, two or more prima facie moral duties generally come into conflict with one another. To ascertain the "actual duty"[45] that leads to action and constitutes justified moral conduct, the moral agent must, using their "moral intuitions"[46] and "moral perceptions,"[47] arrive at their moral duty and act accordingly. For example, consider a moral context where you promised seven days ago to attend a party tonight, a party where several people are coming to see you. On the same day you are supposed to go to the party, your mother is hospitalized due to a car accident; meanwhile, your sister has also gone on a trip and is not in town to go to your mother. Now, what do you do? If you rush to your mother, you must abandon the party and break your promise; if you go to the party, your mother will inevitably be left alone, which is not morally agreeable to you. In Ross's terms, here you are faced with two conflicting prima facie duties of "fidelity" and "gratitude."

The promise you have previously made requires you to attend the party tonight, and not going to the party would be an instance of breaking a promise. On the other hand, due to the numerous efforts your mother has made for you over the years, you ought to stay with her and not go to the party. According to Ross's view, there is no predetermined "alphabetical order"[48] among prima facie duties.[49] The implication of this statement is that, depending on the specificities and nuances of the moral context in question, the weight of prima facie duties changes, and one prima facie duty is overshadowed by another prima facie duty, yielding the actual duty. For example, in this context, if no one else can join your mother and be present at her bedside in the hospital, the prima facie duty of "gratitude" gains more weight and becomes your actual duty; the implication of this is that you must cancel going to the party and go to your mother. It is entirely conceivable that in a context where a close relative can be present at the bedside of your hospitalized mother in your place, the weight of the moral duty of "fidelity" increases, and attending the party gains more weight. In fact, breaking a promise in the first context is moral and justified, whereas not joining your mother and going to the party in the second context is moral. One of the constituents of Ross's ethical theory is the emphasis on the "context-dependence"[50] of the moral decisions of agents in various contexts. Furthermore, Ross distinguishes "fundamental prima facie duties"[51] from "derivative prima facie duties."[52] The moral duties of "truth-telling"[53] and "citizenship,"[54] although not included in Ross's list of primary duties, are counted among derivative prima facie duties.[55] Truth-telling is a "derivative" prima facie duty composed of the two fundamental prima facie duties of "fidelity" and "non-maleficence." The implication of this is that, if there is no obstacle, these derivative prima facie duties become actual duties and are applied in practice, and the moral agent must act in accordance with them.[56]

4. Hijab in Light of Ross's Ethical Framework

Now let us see what can be said about hijab and covering the hair and neck according to Ross's ethical system. As we understand it, not covering the hair and neck does not entail the violation of any of the fundamental ethical principles in the list of "prima facie duties" nor of "derivative prima facie duties" composed of two or more prima facie duties. In other words, not covering the hair and neck and sufficing with conventional hijab does not entail a violation of fidelity, non-maleficence, self-improvement, justice, gratitude, beneficence, or reparation; for it neither entails the violation of human dignity, fidelity, beneficence, and justice, nor does it result in harming others. In contrast, performing actions such as torturing an innocent person, lying, slandering, backbiting, killing, breaking promises... entail the violation of one or more fundamental prima facie moral duties and are therefore unjustified and condemnable in Ross's ethical system. Hence, someone who does not cover their neck and hair has not committed an immoral act. If we wish to formulate the moral reasoning of those who consider covering the neck and hair necessary, it seems the "morally relevant characteristic"[57] which, according to these individuals, constitutes the necessity of covering the neck and hair is "chastity." According to their view, not covering the hair and neck entails the negation of chastity and is morally reprehensible and condemnable. In critiquing this argument, it can be said that while it is true that chastity is a morally relevant characteristic and an unchaste voluntary action is immoral—just as, according to Ross's ethical system, the moral duty of "chastity" can be considered among the derivative prima facie duties obtained from the combination of the three fundamental prima facie duties of "fidelity," "self-improvement," and "non-maleficence"—the boundaries, limits, and instances of what is chaste and unchaste can, in principle, change from one era to another, as indeed they have. In Qajar-era Iran, chaste behavior, in the view of many, probably required that a woman not see a non-mahram man and that a non-mahram man not see her; but during the revolution, many Muslim women participated alongside men in street demonstrations demanding the Shah's removal, and this behavior of theirs was not considered unchaste. In the present day as well, many Muslim girls and women in post-Islamic Revolution Iran go to university or are present in offices, ministries, factories, and companies and work with their colleagues from morning until afternoon, and this is not considered contrary to chastity by their families and society. Thus, the components and instances of "chastity" are bound by time and place, and by ascertaining them, the boundaries and limits of what is chaste can be specified in any given time. In the present day, speaking and working with a non-mahram individual is not, in principle, considered an instance of unchaste behavior; the implication of this statement is that it is not an immoral action. In the same vein, and taking into consideration the moral intuitions of reasonable, fair-minded human beings who, in issuing moral judgments, are as free from human biases, feelings, and emotions as humanly possible—whom moral philosophers refer to as the "ideal observer"[58]—it can be argued that observing conventional hijab by adult men and women, which, in addition to conventional covering, includes employing appropriate, dignified, and humane speech and behavior in regulating relations with the opposite sex, is morally necessary, and deviating from it, according to Ross's ethical system, entails the violation of "fidelity," "non-maleficence," and "self-improvement" and is an unchaste, immoral, and unjustified act. Thus, observing this conventional hijab is both the moral duty of the adult woman and the moral duty of the adult man; however, not covering the neck and hair by adult women does not entail the violation of the moral duty of "chastity" and is not immoral. At the same time, if not covering the neck and hair in a particular moral context conflicts with another moral consideration that, according to conventional moral intuitions, carries more weight—for example, if it causes an increase in the pain and suffering of others—then covering the neck and hair, in that moral context, is considered the individual's actual duty, and not covering the neck and hair there is an immoral act. Consider a context in which your employer, for whom you work, has told you that if you show up at the workplace without a headscarf, you will lose your job. At the same time, the livelihood of your mother and child is entirely dependent on your income; changing jobs is also difficult, and you cannot change your job at present.

In this situation, taking all aspects into account and in order to prevent harm to the child and the mother, covering the hair is ethically a duty, and violating it appears unjustified and impermissible, unless you can somehow prevent harm from befalling your child and mother. Based on the foregoing, according to the teachings of Ross's ethical system, it can be concluded that not covering the neck and hair is not, in principle, an unethical act; unless not covering the neck and hair, in a particular ethical context, is overshadowed by a prima facie duty that carries greater weight. In such circumstances, the individual must cover the neck and hair, and violating this is impermissible. At the same time, this does not imply that if someone covers their neck and hair, they have committed an unethical act; rather, it emphasizes that not covering the neck and hair is not, in principle, unethical. Furthermore, it is conceivable that someone covers their neck and hair, yet behaves unchastely in their interactions with the opposite sex. Thus, it is possible for someone to cover their neck and hair, yet their behavior be unchaste and unethical; the implication of this statement is that there is no necessary relationship between chastity and covering the neck and hair. In other words, someone can cover their neck and hair and behave chastely; they can also cover their neck and hair and behave unchastely; at the same time, it is conceivable that someone does not cover their neck and hair and behaves chastely, and it is also conceivable that someone does not cover their neck and hair and behaves unchastely. Let us note that, according to the opinion of some researchers and Islamic scholars, historical investigation into the circumstances of the revelation of the verses concerning hijab in Islam shows that these rulings were bound by time and place and have a jurisprudential and identity-related character, not an ethical one.[59] In fact, just as a Greek, an Australian, a Lebanese, or an Iranian is concerned with their identity and loves the flag and the cultural and scientific glories of their country, taking pride and delight in them; for a Muslim woman, too, the ruling of hijab has more of an identity-related and jurisprudential character. In other words, in Islamic texts, the issue of hijab and covering the neck and hair has been discussed from a jurisprudential and identity-related perspective, not from an ethical one. The implication of this statement is that the issue of hijab in religious traditions has no "ethical relevance"[60] and was not the subject of the Lawgiver's consideration from an ethical standpoint; therefore, it can and "must" be addressed independently and from an ethical perspective, its boundaries explored, and its ethical validity discussed.

5. Conclusion

As previously discussed, a jurist such as Ahmad Qabel believes that not covering the neck and hair of the head does not carry a religious prohibition, and someone who does not observe such covering has not committed a wrongful act from a jurisprudential perspective. According to a version of the "Minimalist Theory of Divine Command" which the author considers justified, weighing jurisprudential rulings in the scales of ethics and seeking assistance from reason and rational, conventional moral intuitions is a necessary condition for justifying jurisprudential rulings and discerning God's intention in the present day. By taking into account the historical and jurisprudential research of Amir Torkashvand and the fatwa of Ahmad Qabel on one hand, and ascertaining the boundaries and limits of chaste and ethical conduct in the present day with regard to the rational moral intuitions of the ideal observer on the other hand, as well as considering the prominent identity-based and jurisprudential character of the hijab ruling; one can conclude that not covering the hair of the head and neck in the present day does not carry moral reprehensibility and is not an instance of unchaste action. Sufficing with conventional hijab and maintaining boundaries in regulating relations and interactions with the opposite sex is, in principle, ethical and, at the same time, does not entail disregarding the intention of the Lawgiver and God.

Footnotes

[1] In finalizing this article, I benefited from the suggestions and comments of my friends and colleagues, Messrs. Erfan Badkoubeh, Hossein Dabbagh, Hossein Kaji, Hossein Kamali, Yaser Mirdamadi, Arash Naraghi, Hassan Yousefi Eshkevari, and Mses. Nahid Tavassoli and Saharnaz Samaeinejad, and some other dear ones. I sincerely thank them.

[2] usage theory of meaning

For more on this semantic theory, see: Soroush Dabbagh, "Games and Meanings: Three Accounts of Family Resemblance in Wittgenstein's Philosophy," Silence and Meaning, Tehran, Serat, 2008, second edition, pages 47-62.

[3] Surah An-Nahl, verse 90

[4] Surah Al-Baqarah, verse 2

[5] I have been sent to perfect noble moral character.

[6] If you have no religion and do not fear the Hereafter, then be free in your worldly life.

[7] Strong Divine Command Theory

[8] The semantic dependence of ethics on religion is discussed and critiqued in the following article:

Javad Danesh and Reza Akbari, "The Semantic Dependence of Ethics on Religion," Scientific-Research Quarterly of Ethical Research, University of Qom, Winter 2012, pages 43-60.

[9] Weak Divine Command Theory

[10] The "Maximalist Theory of Divine Command" and the "Minimalist Theory of Divine Command" are well explained in the following two sources:

“Divine Command Theory”, Internet Encyclopedia: A Peer-Reviewed Academic Resource

Philip Quinn (2006) “Divine Command Theory” in J. Dreier (ed.) Contemporary Debates in Moral Theory (Oxford: Blackwell Publishing), pp. 53-73.

[11] For more on the philosophical views of the late Tabatabai and the late Motahhari on ethics, see, for example:

Abdolkarim Soroush, "A Comparative Discussion on Constructed Perceptions" and "Motahhari and the Is-Ought Problem," Contemplation of Creation, Serat, Tehran, 2006, pages 343-365 and 396-425.

Soroush Dabbagh and Hossein Dabbagh, "Validity and Truth in Ethics: Divergence and Convergence in the Ethics of Tabatabai and the Early Wittgenstein," Scientific-Research Quarterly of Hikmat Nameh, Imam Sadiq University, Winter 2009, now in: Soroush Dabbagh, Language and the Image of the World, Ney, Tehran, 2010, pages 111-130.

[12] Categorical Imperatives

[13] Utilitarianism

[14] Deontologism

[15] universalizability principle

[16] For a discussion of the various relationships between religion and ethics, see, for example:

T. Tannsjo (2002) Understanding Ethics: An Introduction to Moral Theory (Edinburgh: Edinburgh University Press), Chapter 1.

Abolqasem Fanaei, Religion in the Scales of Ethics, Serat, Tehran, 1384 [2005].

Soroush Dabbagh, Lectures on the Philosophy of Ethics, Serat, Tehran, 1388 [2009], Chapter 7; idem, "Religion in the Mirror of Ethics," interview with the journal of Imam Sadiq University, Autumn 1391 [2012].

[17] For critiques leveled against the "maximal divine command theory," see, for example: Michael Peterson et al., Reason and Religious Belief: An Introduction to the Philosophy of Religion, translated by Ahmad Naraghi, Ebrahim Soltani, Tarh-e No, Tehran, 1387 [2008], pages 427-461.

[18] arbitrary

[19] For more on Adams's view, see:

Robert Adams (1987) “A Modified Command Theory of Ethical Wrongness”, The Virtue of Faith and Other Essays in Philosophical Theology, (New York: Oxford University Press).

[20] personal

[21] normative

[22] reflective equilibrium

[23] For more on the concept of "reflective equilibrium" in Rawls's philosophy, see, for example:

-Hooker, B. (1996) “Ross-Style Pluralism versus Rule-Consequentialism”, Mind, 105, pp. 531-552.

-Scanlon, Tim, (2002), ‘Rawls on Justification’, in The Cambridge Companion to Rawls, S. Freeman (ed.), Cambridge: Cambridge University Press, pp. 139–167.

[24] justification

[25] moderate foundationalism-coherentism

[26] Elaborating on this epistemological point and comparing this theory of justification with other theories of justification from the author's perspective requires another occasion.

[27] For an introduction to Audi's position, see:

. R. Audi (2003) Epistemology: A Contemporary Introduction to the Theory of Knowledge ( London& New York;

Routledge), Part Three, Chapter 9.

[28] prima facie justification

[29] See: Morteza Motahhari, The Issue of Hijab, Sadra, Tehran, 1387 [2008], pages 157-185

[30] Amir Torkashvand, Shar'i Hijab in the Age of the Prophet, PDF electronic version, pages 684, 721, and 722.

[31] Ahmad Qabel, Rational Sharia website, articles "On the Covering of Hijab 1 & 2"

http://ghabel.blogspot.ca/

Also see Ahmad Qabel's interview with the Jaras website titled: Hijab and Political Islam from the Perspective of Rational Sharia:

http://www.rahesabz.net/story/54225/

Abdolkarim Soroush, the contemporary philosopher and Islamic scholar, wrote in a piece mourning the late Qabel:

"I followed the late Qabel's writings closely and read and remembered his views on the marriage of Sharia and rationality. I admired his jurisprudential and courageous discussion of hijab." See:

http://www.rahesabz.net/story/60753/

[32]Mohsen Kadivar's website

 

[33] See his interview titled “Some Remarks on Hijab”:

http://www.bazargan.com/abdolali/video/PN227/index.html

[34] Seyyed Mohammad Ali Ayazi, a researcher from the Qom Seminary, believes that hijab is not a social matter and the government should not interfere in it or make it compulsory. See his interview titled “Hijab is not a social matter to warrant punishment”:

http://www.rahesabz.net/story/57742/

Likewise, Hassan Yousefi Eshkevari, a contemporary religious intellectual, believes that compulsory hijab is unethical and irreligious, and civil action should be taken towards its abolition. He also holds, from a jurisprudential standpoint, that covering the hair and neck is not necessary, and considers the religion’s recommendations in this regard as ethical recommendations (in jurisprudential terms, recommended acts). See:

http://www.rahesabz.net/story/56397/

[35] For further elaboration on this point, see:

Abdullahi An-Na’im ( 2008) Islam and the Secular State: Negotiating the Future of Shari’a (US: Harvard University Press).

Mohammad Mojtahed Shabestari, A Critique of the Official Reading of Religion, Tarh-e No, Tehran, 1380 [2001]

Abdolkarim Soroush, “An Analysis of the Concept of Religious Government,” Tolerance and the Management of the Faithful, Serat, Tehran, 1376 [1997]

[36] Recently, in a class on “Islam and Modernity” at the University of Toronto, a Turkish student recounted about one of her friends that she was forced to leave Turkey and settle in Canada to preserve her hijab, because according to Turkish laws, women cannot appear in public institutions, including universities, wearing hijab. Furthermore, she recounted about another Iranian friend who believes in Islam but does not believe in hijab and covering the hair; for this reason, she left Iran, where hijab is compulsory by law, and immigrated to Canada so she could live according to her desired way of life. It is an irony of fate that two Muslim women have chosen a Western, non-Muslim country to live in. Both “compulsory hijab” and “compulsory unveiling” are unethical and unjustified, and both must be abandoned, as they entail the deprivation of choice and decision-making from a mature and autonomous human being.

[37] normative ethics

[38] The Ethics of Prima Facie Duties

[39] virtue ethics

[40] prima facie duties

[41] fidelity

[42] gratitude

[43] non-maleficence

[44] self-improvement

[45] actual duty

[46] moral intuitions

[47] moral perceptions

[48] lexical order

[49] My exposition of David Ross’s views in this article is largely influenced by the readings of Jonathan Dancy and Robert Audi on the “ethics of prima facie duties.” At the same time, within the literature, someone like Philip Stratton-Lake has read Ross in a different way. For further acquaintance with Audi’s and Stratton-Lake’s readings of Ross, see:

-Robert Audi( 1993) “ Ethical Reflectionism”, The Monist, 76, pp. 295-315.

- Stratton-Lake, P., (2002), "Introduction" in Ross, D. The Right and The Good (Oxford: Oxford University Press).

[50] context-dependency

[51] basic prima facie duties

[52] derived prima facie duties

[53] truth-telling

[54] citizenship

[55] For an elaboration of this point, see:

David Ross (1930) The Right and The Good (Oxford: Clarendon Press), chapter 2.

[56] For further acquaintance with the components of Ross's ethical theory, see:

-Dancy, J. (1991) “An Ethics of Prima Facie Duties”, in Singer, P.( ed.) A Companion to Ethics (Oxford: Blackwell), pp. 219-229.

- Dancy, J. (1991) “ Intuitionism”, in Singer, P.( ed.) A Companion to Ethics (Oxford: Blackwell), pp.420-411

-McNaughton, D. ( 2002) ‘ An Unconnected Heap of Duties?” in Stratton-Lake, P. ( ed.) Ethical Intuitionism: Re-evaluations ( Oxford: Clarendon Press), pp. 76-91.

-David Ross( 1939) Foundations of Ethics ( Oxford: Clarendon Press).

Soroush Dabbagh, The General and the Particular in Ethics, Hermes, Tehran, 1388 [2009], Chapter Two.

[57] morally relevant feature

[58] ideal observer

[59] See: Fatema Mernissi, The Veil and the Male Elite: A Feminist Interpretation of Women's Rights in Islam, translated by Maliheh Maghazei, Ney, Tehran, 1380 [2001]. Furthermore, Abdolkarim Soroush has explained in an interview that the rulings on hijab were not fundamentally for preserving the chastity of society. See:

Abdolkarim Soroush, "Are Women Half of Satan's Army?!", Zanan Magazine, 1378 [1999]; now in The Regime of Sovereignty and Religiosity, Serat, Tehran, 1379 [2000]. Also, in several lectures, he has emphasized the identity-based and jurisprudential aspect and dimension of the category of hijab. To listen to these lectures on his website, see: www.drsoroush.com

[60] moral relevance

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