Justice, Equality and Muslim Family Laws (by Dr Ziba Mir-Hosseini)

Justice, Equality and Muslim Family Laws (by Dr Ziba Mir-Hosseini)

If justice and equality are values central to Islam, why have women been treated as second-class citizens in Islamic legal texts and in Muslim societies? If equality has become inherent to conceptions of justice in modern times, how can it be reflected in the laws that define the rights of men and women and regulate relations between them in contemporary Muslim societies?

These are not new questions; they have been raised in different formulations and in different settings and occasions, for over a century. Tackling them unavoidably takes us to the domain of family law and the rules that Muslim jurists devised to regulate marriage and its termination. It is through these rules that the control and subjugation of women have been legitimated and institutionalised throughout the history of the Muslim world. It is also through these rules that gender inequality is sustained in contemporary times.

These questions have also been the centre of my research since the early 1980s. I approach them not only as a trained anthropologist, but also as a Muslim woman who needs to make sense of her own religious tradition. I believe in the justice of Islam, and place my analysis within the tradition of Islamic legal thought by invoking two crucial distinctions in that tradition by invoking one of its main distinctions, which underlies the emergence of the various schools in the tradition, and, within them, a multiplicity of positions and opinions; that is, the distinction between Shari’ah and fiqh.

Shari‘ah, which literally means ‘the path, the way’, in Muslim belief is God’s will as revealed to the Prophet Muhammad. Fiqh, jurisprudence, literally ‘understanding’, is the process of human endeavour to discern and extract legal rulings from the sacred sources of Islam, that is, the Qur’an and the Sunnah (the practice of the Prophet, as contained in Hadith, Traditions).

This distinction has been distorted and obscured in modern times, when modern nation-states have created uniform legal systems and selectively reformed and codified elements of Islamic family law, and when a new political Islam has emerged that uses Shari’ah as an ideology. Thus it is crucial to revive, because it enables us to separate the legal from the sacred, and to ask basic questions such as, how do we know what is Shari’ah? How do we know what Islamic law says or mandates?

Gender in Classical Fiqh

Classical Fiqh Texts

By ‘classical’ I mean the period between the emergence of the fiqh schools, almost a century and half after the Prophet’s death, and the early 20th century, take gender inequality for granted, a priori, as a principle. It reflects the world in which their authors lived, a world in which inequality between men and women was the natural order of things, the only way to regulate relations between them.

Legal Foundations of Gender Inequality

We must suspend judgement when dealing with past tradition, but this does not mean that we cannot deal with tradition critically. Questioning becomes even more crucial if we accept - as I do - the sincerity of the classical jurists’ claims that their findings are derived from the sacred sources of Islam and that they reflect the justice that is an indisputable part of the Shari’ah.

There are two sets of related answers. The first set is ideological and political, and has to do with the strong patriarchal ethos that informed the classical jurists’ readings of the sacred texts and their exclusion of women from production of religious knowledge, and women’s consequent inability to have their voices heard and their interests reflected in law. The further we move from the time of revelation, the more we find that women were marginalised, their voices silenced and their presence in public space curtailed. Women were among the main transmitters of the hadith, but by the time the fiqh schools emerged, women’s critical faculties were so far denigrated as to make their concerns irrelevant to law-making processes.

The second set of answers is more theoretical, and concerns the ways in which patriarchal social norms were sanctified, and then turned into fixed entities in fiqh. The space does not allow me to elaborate, but suffice it to say that the genesis of gender inequality in Islamic legal tradition lies in an inner contradiction between the ideals of the Shari’ah and the patriarchal structures in which these ideals unfolded and were translated into legal norms. Islam’s call for freedom, justice and equality was submerged in the patriarchal norms and practices of seventh-century Arab society and culture and the formative years of Islamic law.

The classical jurists’ conceptions of justice and gender relations were shaped in interaction with the social and economic and political realities of the world in which they lived. In this world, patriarchy and slavery were part of the fabric of society; they were seen as the natural order of things, the way to regulate social relations. In their understanding of the sacred texts, these jurists were guided by their outlook, and in discerning the terms of the Shari’ah, they were constrained by a set of gender assumptions and legal theories that reflected the social and political realities of their age. The concepts of gender equality and human rights—as we mean them today—had no place and little relevance to their conceptions of justice.

The Encounter with Modernity

For Muslims, however, the encounter with modernity coincided with their painful and humiliating encounter with Western colonial powers, in which both women and family law became symbols of cultural authenticity and carriers of religious tradition, the battleground between the forces of traditionalism and modernity in the Muslim world—a situation that has continued ever since.

The first part of the twentieth century, with the rise of modern nation-states, saw the expansion of secular education, the retreat of religion from politics, and the secularization of law and legal systems. In many such Muslim states, while classical fiqh was put aside in all other areas of law, provisions on the family were selectively reformed, codified and grafted onto unified legal systems inspired by Western models. Codes and statute books took the place of classical fiqh texts, family law was no longer solely a matter for Muslim scholars (ulema) operating within particular fiqh schools, but became the concern of the legislative assembly of a particular nation-state, which had neither the legitimacy nor the inclination to challenge pre-modern interpretations of the Shariah. As fiqh and its practitioners were confined to the ivory tower of the seminaries, they lost touch with changing social and political realities and were unable to meet the challenges of modernity.

These developments not only transformed the interaction between Islamic legal tradition and social practice but also led to the creation of a hybrid family law that was neither classical fiqh nor Western. Putting aside fiqh as the source of other areas of law had the indirect result of reinforcing the religious tone of those provisions that related to gender rights and the family. It is then that we witness the emergence of a new genre of literature and discourse that I call fiqh-based. The male (at least until very recently) authors of this literature aim to shed new light on the ‘status of women’ in Islam, and to clarify Islamic laws of marriage and divorce. They see gender equality as an imported Western concept that must be rejected. Instead they put forward the notion of complementarity or balance in gender rights and duties. This notion, premised on a theory of the naturalness of Shari’ah law, goes as follows: though men and women are created equal and are equal in the eyes of God, the roles assigned to men and women in creation are different, and classical fiqh rules reflect this difference.

In the second part of the twentieth century, with the rise of political Islam, these fiqh-based texts and their gender discourse became closely identified with Islamist political movements, whose rallying cry was ‘Return to the Shari’ah’ as embodied in fiqh rulings. The Islamists brought the classical fiqh texts out of the closet and - unintentionally - exposed their patriarchal ethos to critical scrutiny and public debate. Some of them defended the fiqh rulings as God’s will and the authentic ‘Islamic’ way of life, but attempts to translate them into policy provoked many women to increasing criticism and greater activism. Paradoxically, this opened a space, an arena, that has allowed the articulation of an internal critique of patriarchal readings of the Shariah that is unprecedented in Muslim history.

Gender Equality and Islamic Feminism

By the early 1990s, there were clear signs of the emergence of a new consciousness, a new way of thinking, a gender discourse that is ‘feminist’ in its aspiration and demands, yet ‘Islamic’ in its language and sources of legitimacy. Some versions of this new discourse came to be labelled ‘Islamic feminism’—a conjunction that is unsettling to many Islamists and some human rights activists. A brand of feminism that takes Islam as the source of its legitimacy has the potential and holds the promise to challenge both the hegemony of patriarchal interpretations of the Shari’ah and the authority of those who speak in the name of Islam.  This places feminist voices and scholarship in Islam in a unique position to expose the inequalities embedded in current interpretations of the Shari’ah, as constructions by male jurists rather than manifestations of divine will. This exposure can have important consequences. If it is taken to its logical conclusion, then it can be argued that some rules that until now have been claimed as ‘Islamic’, and part of the Shari’ah, are in fact only the views and perceptions of some Muslims, and are social practices and norms that are neither sacred nor immutable but human and changing. And it can both free Muslims from taking a defensive position and enable them to go beyond old jurisprudential dogmas.

It is then that the egalitarian voice of the Qur’an can be heard and can guide us in finding the trajectory, the direction to justice as the prime objective of Shariah. Understandings of justice and injustice are time-bound, and it is not our task to define what justice is, but to cry out when women face and experience injustice and discrimination because of their gender. We can claim, with the full certainty of our faith and awareness of our Islamic heritage, that some elements of Muslim family laws as formulated by classical jurists and reproduced in modern legal codes have become empty legal shells and are no longer in line with the justice of the Shari’ah.  This is so because, in our time and in our context, there can be no justice for women without equality in the family.

(This article is drawn from ‘Towards Gender Equality: Muslim Family Laws and the Shari‘a’, in Zainah Anwar (ed.) Wanted: Equality and Justice in the Muslim Family, Musawah: An Initiative of Sisters of Islam, 2009, accessible at http://www.musawah.org/wanted-equality-and-justice-muslim-family-english)