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Islamic Family Law and Justice for Muslim Women

Muslim women in Kabul. (twocentsworth/Flickr)

Muslim women in Kabul. (twocentsworth/Flickr)

Strategies for Reform

The Panel Discussion on Strategies for Reform Through Theology and Fiqh consisted of two presenters (Dr Amina Wadud and Ziba Mir-Hosseni) and one discussant (Dr Amira Sonbol). Amina Wadud presented her paper on “What's Interpretation Got To Do With It: The Relationship between Theory and Practice in Gender Reform”, and Ziba Mir-Hosseini on “The Construction of Gender in Islamic Legal Thought and Strategies for Reform”.

Amina Wadud, Reform and Reinterpretation of Texts
She explained that the work on reinterpretation of the texts is also a part of the reform movement. She positions her thoughts on this topic from her own experience as a theorist exploring theological ideas about gender in the Qur’an.

She stressed the need to understand the relationship between theory and practice. The theory or idea underlying a set of actions needs to be explained in order to understand rationale for the work or action. Islam is a religion that emphasizes both right thought (iman) and right action (amal). This integral relationship means that reform movements are not merely about making changes to policies and procedures and policies, but involve the question of how to re-conceptualize the meaning of Islam.

Language is a special gift given uniquely to humans at the time of creation. The problem, however, is that every word has a wide spectrum of potential meanings. She quotes one scholar, Kenneth Burke, who said that “Human language is insufficient for discussion about the Divine”. For example, the Arabic use of the male gender for the generic does not mean that God is male. “Syams”, the sun, is considered feminine in Arabic and “qamar”, the moon, is considered masculine while the opposite holds true in the English language, i.e. the moon is considered feminine and the sun masculine. Arabic is a gender-specific language; you cannot have a table without it being designated either a “he” or ‘she”. This framework creates a way of thinking about the world that is sometimes taken in a very narrow or literal sense which will naturally create contradictions. In the discourse on the actualisation of gender justice in society, therefore, language and the perception of language influence the understandings, conclusions, implementations and indications that arise from the actual living relationship between the males and females in society. Therefore, understanding both the strengths and shortcomings of language is important in changing restrictive policies and laws. This is not a violation of the integrity of Islam but rather a broadening of the Islamic possibilities.

In the case of gender justice, we have perpetuated within the tradition of Islam for 14 centuries the idea that women and men are distinct beings and that those distinctions indicate values in and of themselves. Our choice is either to live within that limitation or to challenge that limitation as a product of human thinking that is not divine and therefore not only worthy of but in need of challenge until we open up the greater possibilities of what Allah has granted to us as agents.

Amina stated that she has worked with Qur’anic language and semantic usage. The Qu’ran’s own world view to determine the rationale for defeating every form of injustice that is perpetuated on others is that no person is in a status that is greater than, or lesser than, another for the mere reason of their membership in any one category. A category of “gender” cannot be presumed across the board to indicate superiority and inferiority because in fact it violates the very nature of the Qur’anic articulation of our responsibility to act as agents to give service to Allah on behalf of His creation. 

Ziba Mir-Hosseini, Gender Rights
Ziba’s highlighted two main arguments from her paper. Firstly, the conceptions of gender rights in Islamic legal thought are neither uniform nor coherent. Instead they are very contradictory and biased. Secondly, the conceptions of gender rights, as constructed by Islamic jurisprudence (fiqh), not only negate and neglect the basic objectives of the Syariah, but are also unsustainable under the prevailing conditions in Muslim societies today. In fact they bear little relation to the present realities in the Muslim world.

Two main questions are asked in Ziba’s paper. Firstly, if justice and fairness are indisputable objective of the Syariah, should they not be reflected in the laws on the rights each sex as well as the laws regulating the relations between men and women. Why should the notion of justice not be reflected in these laws if it is a part of the Syariah? Secondly, can there be an equal construction of gender rights in Islamic law, and if so, what are the strategies needed to achieve it.

Three preliminary points should be noted: Firstly, the distinction between Syariah and fiqh is emphasized. Syariah is the divine law revealed to the Prophet. Fiqh, however, is not part of revelation but is a legal science that is developed with other branches of science. Fiqh was historically developed by the fuquha for the purpose of extracting and interpreting legal rules from the Qur’an and Sunnah. Secondly, the premise is that gender rights are neither fixed, given nor absolute, but are created (and deconstructed as well) within the social and cultural contexts. Thirdly, Ziba approaches fiqh rules by examining their validity in the light of contemporary gender theories and realities. She also attempts to highlight that the male-centeredness of these rules has caused what has been called an epistemological crisis today

There are broadly three discourses in Islam. The first discourse is the traditionalist (the discourse of classical fiqh texts). The second is the neo-traditionalist discourse (development of legal codes in the 20th century). Both are premised on various forms of gender inequality. The third discourse, the reformist discourse, is still in the process of formation, and is premised on gender equality.

In classical fiqh texts, gender inequality is taken for granted. In contracts of marriage, the logic of the sale underlies the fiqh conception of women’s rights: it is the duty of the husband to pay maintenance to the wife, in return for his rights of access to her sexually. It is important to ask the questions of how and why this logic asserts itself and how fuqaha modelled the family according to this notion.

There are three interacting sets of answers: First, ideological - the strong patriarchal ethos that informs the fuqaha conceptions and reading of the sacred sources. Second, epistemological - the fuqaha came to see the status of women as something fixed in fiqh that is the subject to divine ruling, that couldn’t be changed. Third, political - related to the exclusion of women from production of religious knowledge, their inability to have their voices heard and their interests reflected in the law.

On the ideological side, there was a wide debate about the position of women in pre-Islamic Arabia. The gender relations in the fiqh model were really influenced by the model of pre-Islamic Arabia. For example, the nikah contract is a somewhat modified form of a marriage agreement that existed in pre-Islamic times which was known as “marriage of dominion”. In this type of marriage the woman became the property of the husband, and before marriage she was the property of her father or brother or close male relatives. To accommodate the voice of revelation, certain modifications were made, for instance by giving the dower to the woman instead of to her father, and certain restrictions were made over the men’s dominion over women.

The subjugation of women that is condemned in the Qur’an, is reproduced in fiqh, though in modified terms. In producing their rulings, fuqaha also relied on a number of philosophical and theological arguments that “women are created of and for men”, although there is actually no basis for these arguments in the sacred text of the Qur’an. For instance, the story that the woman was created from Adam’s rib does not exist in the Qur’an, but is often accepted as the basis on the creation of women. There are also a number of theories on women’s greater sexuality and the need for men to control women’s sexuality.

Women’s voices were submerged and by the time the law schools or mazhabs were developed in the Muslim world, women were totally excluded from the intellectual process and the production of knowledge. The further we move form the time of revelation, the more women’s voices were excluded from the political life in Muslim society. We have women reporters on hadith, but not women in the fiqh sphere. By the 19th century, these fiqh conceptions and the model of gender relations came increasingly under serious criticism as they became increasingly irrelevant to modern realities.

The strategies for reform need to be addressed and explored within the new reformist discourse. This new discourse is still in the formative stage and its future depends on the balance of power between the traditionalists and modernists among the Muslims and the ability of women’s organisations to have their voices heard and the role of the civil society in relation to it.

Amira Sonbol, Discussant
The discussant drew attention to the two methodological approaches that are common between Dr Amina’s and Ziba’s papers: She felt that the two papers are important because they pointed out that any change or reform on the lives of Muslim women must come from within the Islamic tradition. Through our reading and understanding of the textual sources, we can promote and develop changes. Even when addressing change in relation to human rights, Muslims will have to find our way to the realization of human rights through the Islamic tradition.

The second important methodology suggested in the two papers is that women would have to become involved. The fact that women had not been involved suggests that this has been the problem all along. Muslim women need to become involved in theology, and in interpreting the Qur’an; they should not merely wait for the men to undertake it.

A third methodology was suggested by quoting an Egyptian proverb, “He who does not remember his past is lost.” It is thus important to study the actual history and discover the practices that existed in the pre-colonial times. We should not simply take the paradigm that the west has given us about our own past. It is up to us to discover our past in order to understand what we are all about. For instance, Amira’s researches have shown some surprisingly progressive attitudes in her society regarding women during some periods in pre-colonial times, and the reinforcement of patriarchal attitudes in the colonial era.

Open Discussion
An Indonesian participant from the floor said that when she asked her seven-year old daughter to describe God, her daughter said that “God is like father”, because according to her teacher “God does not go through reproductive process and therefore must be a man (father)”. In other words, ideas about religion are rooted in the early education of children. In effect, within all the world’s major religions, maintaining a patriarchal notion of God appears to be part of an intentional strategy to prevent women’s full experiences in the religious sphere. In the Qur’an, Allah is both powerful and nurturing, yet in the history of patriarchal thinking among the Muslims, the punitive notion of Allah prevailed and the nurturing notion was neglected.

How Islam is defined through history is a product literally of men’s discourse with other men. Historically, authority has always been regarded as belonging to men. Women who attempt to challenge male interpretations are often viewed with suspicion, and the qualifications questioned and doubted even when those women are qualified with various branches of knowledge and some of the men who challenge them are themselves less qualified with knowledge than these women.

Amina felt that the key to understanding theology is by understanding the whole revelation. Western feminist theology, based on Judaism and Christianity, has different opinions regarding revelations and as such cannot be applied to Islam.

One respondent from the floor highlighted the need for women to be political. She has not seen enough women’s issues being brought forward in the political movement and felt that women are unfortunately reluctant to raise their concerns through political strategies, as they may not wish to be seen as challenging the State establishment.

In respect to equality, equity and fairness, Ziba concludes that in principle it is all about justice. She stressed however, that equality does not necessarily mean “sameness” in the law. (For instance, gender neutral provisions in the law may lead to the result of unintended discrimination against women. Therefore, “equality” is meant to be substantive equality and non-discrimination). As a strategy, it is important to argue for equality and apply the concept because it gives women the legitimacy to pursue their rights. Women of all ages have also played a role in making compromises with patriarchy and in perpetuating patriarchy.

The workshop was an outstanding success and most of the people who attended were impressed by the level of debate, openness and participation. The participants expressed the hope that this kind of workshop would continue in the future for the benefit of Muslim women in particular and of Muslim society in general.