Equality and Justice in the Muslim Family
Edited by: Zainah Anwar
Publisher: Musawah/Sisters in Islam, Kuala Lumpur (www.musawah.org)
Price: 28 Malaysian Ringgit
Muslim family laws have for long been-and continue to be-a hugely controversial subject. Critics contend that these laws seriously militate against basic human rights, especially of women. On the other hand, conservative ulema and Islamist ideologues hail these laws as the epitome of divine justice and refuse to consider any changes therein.
This book-a collection by leading international Islamic scholars and women's rights activists-advocates a middle-of-the-road position. The contributors to the book claim that while Islam can be interpreted as upholding women's rights, dignity and equality, Muslim family laws, as they exist in most countries, simply do not. Hence, they argue, the need for urgent changes in these laws-in order not just to provide women the rights that these laws deny but also for these laws to conform to what they regard as the underlying spirit of Quranic teachings, particularly concerning justice and equality.
The papers included in this volume emerged from an international conference on Islam and Gender Justice recently held in 2006 in Kuala Lumpur, Malaysia, at the initiative of Sisters in Islam, a well-known Muslim women's group that has been in the forefront of articulating Muslim women's rights and equality within an Islamic framework. The conference led to the formation of a group which was named Musawah ('Equality' in Arabic). Its mandate is to coordinate international efforts to promote legal reforms in Muslim countries in family matters in consonance with what it believes to be the basic Islamic principles of justice, equality and dignity for all human beings, including Muslim women and people of other faiths.
The book, the first of a series of publications that Musawah plans to bring out, begins with a detailed statement of the organisation's basic principles and charter of demands. It sets out the claim that the Quran, if understood in an expansive, and what it regards as an 'authentic' manner, is not incompatible with contemporary international human rights standards. Hence, it demands, relations between Muslim women and men, in both the private and public spheres, must be governed by principles and practices that uphold equality, fairness and justice. All Muslims, including women, it stresses, have 'an equal right and duty to read the religious texts, engage in understanding God's message, and act for justice, equality and the betterment of humankind within their families, communities and countries.' In other words, it asserts, the study and interpretation of Islam cannot be considered the sole preserve of the male ulema or Islamic clerics.
The statement notes that many laws related to personal status and family codes in Muslim contexts are patently unjust to women. Human affairs, it stresses, constantly change and evolve, and so must laws and social practices that shape relations within the Muslim family. This is necessary, so it argues, in order that the laws reflect Islam's stress on equality, justice, love, compassion and mutual respect between all human beings. Such legal reform, it contends, is by no means a new innovation, for changes in rules for the public interest (maslahah) have always been part of the Muslim legal tradition.
Seeking to preempt critics who might argue that reforms in Muslim family laws would be tantamount to interference in what they regard as the divinely-ordained shariah, the statement observes that family laws in today's Muslim countries and communities are actually 'based mainly on theories and concepts developed by classical jurists (fuqaha) in vastly different historical, social and economic contexts.' In interpreting the Qur'an and the Sunnah, the practice of the Prophet (Pbuh), the classical jurists were 'guided by the social and political realities of their age and a set of assumptions about law, society and gender that reflected the state of knowledge, normative values and patriarchal institutions of their time.'
The idea of gender equality had no place in, and little relevance to, the conceptions of justice of the classical fuqaha, the statement contends. This, it continues, was reflected in the fact that the concept of marriage upheld by the fuqaha was 'one of domination by the husband and submission by the wife.' But today, it remarks, social conditions have vastly changed and 'the world inhabited by the authors of classical jurisprudential texts (fiqh) has begun to disappear.' Yet, family laws that militate against equality and dignity for women continue to linger on despite the fact that they are now 'irrelevant to the needs, experiences and values of Muslims today.' Furthermore, these laws are also at the root of marital disharmony and the breakdown of the family.
The statement argues the need for a critical re-reading of these laws, not from a secular point of view, but, instead, through the prism of Qur'anic teachings, based on justice (adl), equality (musawah), equity (insaf), human dignity (karamah), love and compassion (mawaddah wa rahmah). These principles, it says, 'reflect universal norms' and are 'consistent with contemporary human rights standards.' Formulating new laws based on these principles would not, it argues, constitute a deviation from the shariah, the 'revealed way', contrary to what is often alleged. It would certainly be a departure from classical fiqh, though, but fiqh, it notes, is distinct from the shariah, being the result of human effort in seeking to interpret and draw rules from the shariah. Hence, being human and fallible, fiqh, unlike the shariah, is also changeable, through resort to ijtihad or independent reasoning. Hence, reforming existing gender-just laws that form a part of the corpus of fiqh, many of which are still enforced, is, the statement claims, fully in accordance with the aims of the shariah rather than constituting a violation of it, as might be alleged. The statement backs this assertion with this approproate quotation from Ibn Qayyim al-Jawziyyah, the noted fourteenth century Islamic jurist:
'The fundamentals of the shariah are rooted in wisdom and promotion of the welfare of human beings in this life and the Hereafter. Shariah embraces justice, kindness, the common good and wisdom. Any rule that departs from justice to injustice, from kindness to harshness, from the common good to harm, or from rationality to absurdity cannot be part of shariah, even if it is arrived at through individual interpretation.'
The opening essay of the book, authored by the Malaysian scholar-activist Zainah Anwar, head of Sisters-in-Islam and convenor of Musawah, is a trenchant critique of patriarchy in the name of Islam and a passionate advocacy of gender equality as an Islamic mandate. The essay elaborates on the themes contained in the Musawah statement, and calls upon women's rights activists to seriously engage with the Islamic religious tradition instead of leaving it to die-hard clerics and misogynist Islamists to monopolise. Anwar makes it clear the Musawah seeks to raise the issue of equality for Muslim women within and through an Islamic paradigm. Rather than constituting a betrayal of Islam, as its detractors certainly would allege, demanding full legal equality for Muslim women (and non-Muslims in Muslim countries) would, she insists, be entirely in accordance with the Quran's 'revolutionary' spirit and its stress on the fundamental equality and dignity of all human beings.
The second paper, by the noted Iranian scholar Ziba Mir-Hosseini, examines conceptions of gender in Islamic legal thought and the challenges they present to the construction of an egalitarian Muslim family law. She argues that 'there is neither a unitary nor a coherent concept of gender rights in Islamic legal thought.' Rather, there is a welter of conflicting concepts that reflect both Islam's 'ethical egalitarianism' and the patriarchal contexts in which classical fiqh emerged and developed. This she relates to the distinction-often ignored by Islamists and conservative ulema-between shariah and fiqh, the former being God-given and eternal, and the latter being a product of human reasoning and thus fallible and amenable to change. She insists that patriarchal fiqh does not represent the shariah and violates its stress on human equality and dignity. Hence, she insists, it is in urgent need of reform.
Mir-Hosseini's point is well-taken and fully in accordance with Islamic teachings. But where she is on less firm grounds is her claim that legal rulings (ahkamat) in the Quran that relate to transactional or contractual acts (muamilat) can be changed, in contrast to those rulings that relate to relations between the individual believer and God (ibadat). She contends that rules governing muamilat, which include those relating to women and gender relations, 'remain open to rational considerations and social forces' in order to adjust to changing social conditions. Controversially, she writes that it is indeed possible for ijtihad to extend to this realm as well, based on a re-reading of the scriptures. In making this claim, she does not engage with the ulema's claim that ijtihad on matters that have clearly been specified in the divine texts (nass) is not permissible. This clearly limits her case for an Islamically-grounded argument for legal reforms.
Mir-Hosseini subjects the rules laid down by numerous classical fuqaha concerning marriage to a critical evaluation, judging them by the criterion of justice that she identifies as a key Quranic principle. Many of these rules, she argues, reflect deeply-rooted patriarchal prejudices. For instance, they define marriage basically as 'a contract of exchange […] whose main purpose is to make sexual relations between a man and woman licit.' In discussing marriage and its legal structure, some classical jurists, she notes, even used the analogy of the contract of sale, in which the wife sells a part of herself and the husband buys her sexual organ, owing to which the wife is needed to completely submit, as a slave would, to him. The notion of a husband's 'ownership' of his wife also defined how many classical jurists viewed divorce. Some of them drew an analogy between talaq and the manumission of a slave. In this regard, Mir-Hosseini quotes the noted Sunni scholar Imam Ghazali as writing, 'The man is the owner and he has, as it were, enslaved the woman through the dowry and […] she has no discernment in her affairs' This logic of 'ownership' of the woman, Mir-Hosseini submits, is a complete inversion of the Quranic insistence on equality.
When compared to the numerous reforms wrought by the Prophet in the conditions of women in his time, the fiqh tradition, Mir-Hosseini argues, reflects a process of the increasing marginalization and silencing of women. There are, she writes, '[m]any verses in the Qur'an condemn women's subjugation, affirm the principle of equality between genders and aim to reform existing practices in that direction. Yet […] subjugation is reproduced in fiqh […]'.
Numerous assumptions underlying fiqh rulings concerning women, Mir-Hosseini argues, do not have any basis whatsoever in the Quran. These include the claims, repeatedly stressed by numerous fuqaha, that women were allegedly created from and for men; that God allegedly made men superior to women; and that women were allegedly defective in reason and faith. Notions such as these worked to remove women from public life and confine them to the seclusion of their homes-again a departure from the practice of the Prophet. Inspired by the Prophetic practice, Mir-Hosseini concludes, socially-engaged Islamic scholars, men and women, need to critically engage with the fiqh tradition and to formulate new laws that reflect the Quranic insistence on human equality for both men and women.
Unlike Catholicism, for instance, which has a Church hierarchy that lays down orthodox doctrine and laws, Islam allows for a diversity of views, or ikhtilaf as it is called in the terminology of the fuqaha or Islamic clerics. In his essay, Muhammad Khalid Masud, noted Pakistani Islamic scholar and, till recently, Chairman of his country's Islamic Ideology Council, points to the possibilities afforded by the doctrine of ikhtilaf as a means for articulating an alternate, gender-sensitive understanding of Islam and Islamic laws.
According to a saying of the Prophet Muhammad, writes Masud, diversity among the Muslim people is a blessing (ikhtilafu ummati rahma). In line with this, the fuqaha not just tolerated, but also respected, differences in understanding and interpreting the Quran and in matters of fiqh, within certain broad boundaries laid down by the clear texts of the Quran and Hadith. This suggests, Masud opines, the need for fiqh to remain 'a continuous process that allows legal norms to remain relevant to social norms'. This would entail 'going behind the text to find universal legal principles that can accommodate social changes.' One of these 'universal principles' is gender justice, which, Masud notes, is not reflected in the corpus of classical fiqh, and which, he insists, is in urgent need of ijtihad in this respect.
Needless to say, what Masud here advocates is in sharp contrast to the stance of the conservative ulema, who stress the need for taqlid, or rigid adherence to the rules laid down by the classical fuqaha as a means to strictly limit ikhtilaf. Aware that his suggestion would leave him open to the charge of advocating changes in the shariah, Masud explains:
'We cannot appreciate the reforms introduced in the Quran and the Sunnah without relating them to the social context when they were introduced. The jurists also interpreted the shariah with reference to their social contexts. Today, when the social context has again changed, we need to reinterpret the shariah in these new social contexts.' 'Islam Beyond Patriarchy Through Gender Inclusive Quranic Analysis' is the title of a provocative paper by the well-known American Islamic scholar Amina Wadud. Reiterating a point made by the other contributors to this volume, she stresses the distinction between shariah and fiqh, highlights numerous instances of patriarchal prejudice in the corpus of fiqh and pleads for reforms in the fiqh rules so as to make them consonant with what she argues is the insistence on the ontological equality of men and women as envisaged in the Islamic shariah. This would mean, she suggests, equal access to the public space and decision-making processes for both women and men, for both, she says, have the potential to fulfill their common human destiny as upholders of moral agency or khilafah, as potential khalifas or trustees of God, entrusted with the task of fulfilling God's will on earth.
In this regard, Wadud persuasively argues that patriarchy or any other force that compels abject submission of one human being to another is akin to shirk or associating partners with God, the only sin that God would never forgive. 'The foundational idea of gender equality, she stresses, 'is derived from the Qur'anic worldview.' Hence, she insists, '[E]qual human rights for women have their confirmation in this Qur'anic worldview.'
Khaled Abou El Fadl's paper, titled 'Human Rights Commitment in Modern Islam' critiques contemporary Islamist thought for its obvious indifference to basic human rights of women and non-Muslims, discusses major points of tension between the Islamic tradition and modern conceptions of human rights and explores the possibility of reconciliation between the two.
El Fadl rightly points out the failure of both the apologetic and what he calls the 'defiant' or 'exceptionalist' Islamic responses to modern or Western critiques of Islam, that took the form of assertions that Islam had itself invented modern human rights norms or else that its norms were, in fact, far superior to modern conceptions. These, however, he points out, failed to provide an adequate defence of human rights, primarily because, they sought to defend the inherited fiqh tradition, which he regards as indefensible. Rather than representing a serious commitment to human rights, these responses were meant simply to counter Western criticism, and, as El Fadl puts it, 'affirming self-worth, and attaining a measure of emotional empowerment'. This led, he says, to 'an artificial sense of confidence, and an intellectual lethargy that neither took the Islamic tradition nor the human rights tradition very seriously.' These responses were thus 'far more anti-Western than […] pro-Islamic.'
El Fadl stresses the need for a reconstruction of contemporary Islamic discourse, grounded in human-rights commitments and based on what he terms as 'a rethinking of the meaning and implications of divinity, and a reimagining of the nature of the relationship between God and creation.' Such a reconceptualisation should be based, he suggests, on the notion of God, not as a brutal and vengeful dictator, as Islamists conceive Him to be, but as the epitome of beauty, love, mercy, justice and goodness. This would be reflected in an understanding of the divine will being manifested in human acts based on these values. This would represent, El Fadl says, nothing less than a 'serious paradigm shift in Islamic thinking.'
Obviously, seen from this perspective, numerous rules contained in the corpus of traditional fiqh that relate to women and non-Muslims and that rob them of basic fundamental rights, would be regarded as negating God's will. This new paradigm could then possibly help usher in a reconciliation between Islamic discourse and contemporary human rights standards. In her paper, Amira El-Azhary Sonbol traces the overlapping of fiqh-based laws, customary laws and colonial laws in shaping personal status codes in a range of Muslim countries and communities. Her basic point is that, contrary to what is commonly asserted, many of the personal laws today applied in Muslim contexts are not based simply on the Islamic shariah. As such, they should not be regarded as immutable and as beyond reform.
Pre-colonial shariah courts, Sombol writes, were considerably more flexible than their counterparts that developed in period of European colonial rule over most of the Muslim world and that have continued thereafter. Judges were not bound, unlike today, by codified rules, and had considerable discretion to make decisions, including resorting to customary laws (urf or adat) and other schools of fiqh and considering the specific conditions of specific cases to reduce hardship to litigants. This often worked to the advantage of women.
In several respects, Sombol claims, the Muslim personal laws that came to be constructed in the colonial period worked against the interests of women by doing away with the flexibility and maneuverability of the pre-colonial shariah courts and imposing a single, centralized code on the entire Muslim populace. This was exacerbated by the 'Victorian' patriarchal worldviews of the colonial administrators. In several Muslim countries under European rule, this was reflected in the new standardized marriage contracts which defined the husband as the head of the family, and did not provide-in contrast to pre-colonial marriage contracts-for brides to specify conditions to the marriage in order to protect their rights.
Sombol perhaps risks making a untenably broad generalization when she argues that under the colonial state 'the very act of codification [of 'Islamic' family laws] entrenched discriminatory gender relations', but her point that, while these patriarchal laws could be found in the corpus of fiqh, they could, in the past, be contested on the basis of maqasid-e shariah ('aims of the shariah') or maslahah (public interest), principles familiar to scholars of fiqh, is well taken.
In other words, Sombol stresses, the codified Muslim Personal Laws that operate in many Muslim contexts today cannot be seen as identical to the shariah, contrary to what conservative ulema and others might believe. This recognition opens the way for reforms in these laws or their replacement by others that can better serve the core Quranic principles of justice (including gender justice) and public interest (al-masaleh al-mursalah).
One of the most active groups at the international level today working for gender justice in Muslim contexts is the London-based Women Living Under Muslim Laws Network. In her piece, Cassandra Belchin, the coordinator of the Network, makes a broad survey of the strategies that have been used by women's groups in different countries to bring about legal reforms in Muslim personal laws to ensure justice and equality for Muslim women. Increasingly, she points out, secular feminist groups working with Muslim women are now joining hands with newly-emerging Muslim women's groups that articulate their demands for gender justice from within an Islamic framework and as precisely an Islamic mandate. The latter represents, she points out, an emerging generation of Muslim women confident in their ability to study, reflect on and contextually interpret the Islamic scriptural tradition on their own, challenging the monopoly over religious exegesis of the patriarchal male ulema. These women see themselves not as radical feminists, but, rather, as believing Muslims who are struggling to revive a long-lost tradition of women Islamic scholars that they trace back to the time of the Prophet and immediately after.
In articulating a gender-just vision of Islam and in critiquing the patriarchal prejudices of the fiqh tradition, these women seek to reclaim the right to ijtihad, and also resort to takhayyur and talfiq, selecting context-appropriate interpretations from across the various schools of law as a basis for positive family law reform, a practice frowned upon by many conservative ulema who insist on taqlid or the rigid following of just one school of fiqh.
Some of these efforts by these women scholar-activists have met with success in instituting legal reforms, as in Morocco and Iran, but, Balchin writes, in the face of the continuing influence of conservative ulema and the menacing clout of fiercely patriarchal Islamist groups, much more needs to be done.
The concluding essay of the book, by Kamala Chandrakirana, Chairperson of the Indonesian National Commission on Violence Against Women, provides a broad summary of the lived realities of Muslim women today, in the context of which, she argues, strategies for reform, including legal change, have to be considered. She argues that these realities 'compel us to acknowledge that gender equality and justice in the Muslim family have become undeniable necessities'.
Millions of Muslim women, Chandrakirana points out, now work out of their homes and in public spaces; educated Muslim women, although still a minority, are now increasingly vocal about their rights and unwilling to accept the subjugation to which the traditional ulema seek to confine them; many Muslim women are now the sole breadwinners of their families; a large proportion of internally displaced people and refugees are Muslims, many of them women. These realities demand, Chandrakirana persuasively argues, that fiqh-based laws that continue to deny women physical mobility, higher education, employment opportunities, access to decision-making processes and institutions and equality within the family are no longer tenable. So, too, are laws that allow Muslim men unrestrained rights to enter into polygamous marriages and to divorce their wives at will.
Given the new realities of Muslim women's lives today, she warns, 'a stubbornly unchanged vision of Islam that regards women as inferior to men and therefore undeserving of a life of equal worth and dignity, could lead to the religion losing its relevance for men and women of the future.' Hence, she stresses the need for 'a new vision of Islam which affirms women's humanity and articulates itself in the form of gender-sensitive laws.'
Taken together, the essays contained in the book make a passionate and persuasive case for urgent reforms in existing Muslim personal status laws. The crucial point that the contributors make is that their advocacy for legal reforms is itself an Islamically-legitimate demand, rather than, as their traducers would allege, a deviation from or subversion of Islam. Turning the tables on their detractors, they go so far as to suggest that it is the patriarchal fiqh-based laws that militate against gender justice (which many conservative ulema and Islamists uphold as authentically 'Islamic') that actually represent a cruel betrayal of the basic principles of the Islamic faith and tradition.