Inside the Gender Jihad: Women's Reform in Islam (27 page)

toward the

implementation

of such egalitarianism in the

context of real families will be instrumental to the survival of the
ummah
. In his early twentieth-century work,
Kinship and Marriage in Early Arabia
,

Robertson Smith looks at “family” before and during the lifetime of the Prophet.
19
His use of the word “kinship” in the title alerts readers to the speci-

ficity of his references without deluding anyone into thinking there was some agreed-upon, static, or ideal form of “family.” Attention is more easily dir- ected toward two functional aspects underlying all families: (1) the formulas for establishing and maintaining conjugal relations or marriage; and (2) the more expansive construction of relationships, the bonds of kinship, formed around those eligible conjugal configurations for survival. Relationship is the key component characterizing “family.” Family is a construction of relationships. Paramount in this construction is the procreation, protection, and care of offspring.

The principal basis underlying the construction of conjugal ties or procreative relations is the social understanding of the roles of males and females. Women as biological child-bearers must be joined with men or male sperm in order to fulfill their child-bearing capacity. Although I do not

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deal here with the significance of women as child-bearers to the determi- nation of reproductive rights, such a matter also bears upon the social construction of family.

Some of the conjugal forms that existed in pre-Islamic Arabia were main- tained under the new social–moral order of Islam. Others were condemned by actual practice during the Prophet’s Islamic mission, or simply became obsolete as a result of adaptation and change. For example, at that time, the woman was the only progenitor whose relationship to the unborn child could be proven. There was no means available to determine with certainty the paternity of a child, when the father might have been any one of a number of men with whom a woman had had sexual intercourse. In turn, certain child-rearing patterns were adapted. Smith focuses on historical implica- tions that lineage was maintained through the female line in pre-Islamic Arabia. “The word
ab
, commonly translated as ‘father,’” referred to the

“
one who acted as guardian and provided nourishment.
”
20
Here, the

emphasis “was not primarily a matter of blood,” since adopted children and blood children were considered the same, and thus prohibited from marriage or forming certain conjugal relations.
21

Elsewhere, the practice of
adat perpatih
in certain areas of Southeast Asia is a cultural tradition with a matrilineal and matrifocal emphasis. Thus, the maternal line was given greater attention. These historical examples indicate the ways in which family constructs respond to ethical–

spiritual, social–intellectual, and economic systems at hand.
22
This is not

for the sake of judging or comparing these systems with our current know- ledge and/or human civilizational context and development. I can use them here, to provide additional information important for understanding how

“ideologies of motherhood (and family) are persistent and adaptable.”
23

Although emphasis was on maternal relations when there was no certainty in identifying the biological father of any particular progeny, still, caring for the offspring, the other aspect of human survival, was necessary. The mother’s people took this up. The human species must procreate to survive, but short of that basic necessity, there is no single form or consistent model for the construction of “family” or kinship that allows for care and protection of the young. The sustenance of the children in early Arabia was formed around the female progenitor, not like the patriarchal systems we have justified as natural or ideal.

But we now see that before this [paterfamilias] state of things, there must have been one in which there was indeed a family system in which the center of the family was a materfamilias. The house and the children were

132 inside the gender jihad

hers, succession was through mothers and the husband came to the wife, not the wife to the husband.
24

Remember the two key features of “family” cited above: conjugal relations and the construction of extended relationships for child upbringing. Conjugal relations result in procreation – even when that is not deemed the only reason for such relations – as in the case of Islamic law. Procreation can also result in uncaring situations like rape, as in camps of Bosnian Muslim women in Croatia, or after the transatlantic slave trade. It is women, however, who always fulfill procreation in the form of reproduc- tion. In this respect, women’s role in procreation is basic and fundamental. However, systems for the protection of and care for those procreated are always contextually or culturally motivated.

The historical focus on Arab women as progenitors and on the woman’s tribe, clan, or group including genealogical and material inheritance was one means for securing the future of that people. How long this formula existed or whether it was the only solution is not as much of concern here as using this for evidence of the ways “family” and “motherhood” as constructs have evolved. An Islamic ideal evolved to grant equal protection to the fathers’ paternal rights as biology had protected the mothers’ rights to claim their children. Attaining mutual parental rights could have been the basis for the construction of some aspects in Islamic law, like the prohi- bition of polyandry.

While the Qur’an restricted polygyny, it is self-evident

that,

before

modern medical technology, it was impossible to mutually recognize and thus protect the father’s paternal rights when a woman had more than one conjugal partner. “The modern patriarchal family was created so that each

man would ‘own’

a woman who would reproduce for him. He then had to

control the sexuality of

‘ his’

woman, for how else could he be sure that

‘his’ child was really his
?”
25
(emphasis mine). However, the maternity of a child is still evident even when a man has more than one wife. Hence, although the Qur’an limited the number of wives a man could marry, mere biology does not provide precedent, motivation, or moral
–
social rationale.

The prohibition of polyandry was one of a few

substantive

changes

between Islam and pre-Islamic Arabian kinship groups. Another change surrounded the understanding of foster children and is a significant indicator of the social and historical construction of “family.”

According to Smith, at the time of Muhammad’s birth, “group” law meant the force of custom. Variant group ties of extended sizes or sub- divisions of blood relations existed. Wide kinship grouping was advantageous

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as it increased power and resources against the harsh desert lifestyle. “Kinship then among the Arabs means a share in the common blood which is taken to flow in the veins of every member of the tribe – in one word, it is the tribal bond which knits men of the same group together and gives them common duties and responsibilities from which no member of the group can withdraw.”
26
Men cut off from their tribe would seek protection

from a tribe they encountered. Such protected strangers (
jar
) “were freely admitted . . . and in the insecure life of the desert a strong tribe or a strong chief could not fail to gather a great number of dependents.”
27
In a similar

fashion freed male slaves “were often adopted by their patrons . . . In like manner refugees were frequently admitted to the tribe of their protector by adoption.”
28
However, “to preserve the doctrine of tribal homogeneity it

was feigned that the adopted son was veritably and for all effects of the blood of his new father.”
29
As mentioned above, such foster children and blood children were considered the same, with marriage prohibited

between them.

Pre-Islamic Arabian “familial” construction bears upon Islamic changes

in the rules of inheritance. Women had no right of inheritance.

Only those

who took part in battle, seized booty, and protected property were eligible to inherit. Three things were of common interest: blood feud, inheritance, and booty.
30
Thus merely attributing greater parental rights to women was not the same as considering women greater than or even equal to men. Women were vulnerable, in part because they could bear children, and if she were kidnapped or fell victim to the constant wars and raids between

tribes, a woman was absorbed into her kidnapper’s tribe with whatever children she bore belonging to that tribe.

Inheritance in Islam reflects the old tribal system in so much as there are fixed shares for near relations and afterwards a gratuity for kinsmen

present. However, the definition of kinsman changed from
‘asabah
(those “who battle together”)
3
,
1
where membership is utilitarian, based around the

three common interests mentioned above, to a more literal blood relation when faith in Islam became the common interest. In this new system of Islam bloodline was alternatively emphasized for greater egalitarian, as was the share of inheritance allotted to women.

Islam changed the emphasis to one of blood bond from one whose “purpose . . . [was] to unite men in offense and defense.”
32
So, by the time

of Muhammad, the son

followed

the father and the father’s tribe.

And the Qur’an exhorts, “Your adopted son is not like your son” (33:5). A distinction is given to biological blood ties as the exclusive basis for

134 inside the gender jihad

constructing “family” by determining which conjugal relations are permis- sible as well as who is eligible for inheritance. Although Muslims, united as believers in Allah and His Prophet, form a single
ummah
– a word which incidentally comes from the same root as the word for mother – it is clear in

the Qur’an that blood relations,

also sometimes discussed in terms of

“relations to the ‘womb’” (4:1), are more distinctively emphasized over particular manners of certain pre-Islamic bonds.

The absorption of offspring in pre-Islamic Arabia into

one tribe or

another reminds us of the two principal components of “family” already mentioned: reproduction or procreation; and protection of offspring. Quite naturally, procreation or reproduction is indispensable for the survival of the species. In the animal kingdom some males fight for the opportunity to mate with available females. In some species, the dominant male will kill the offspring of other males,either to establish his claim over the available females, who will no longer lactate and then go into heat ready to mate with the king to have his own offspring to protect his line of descendents, or simply to reflect territorial dominion and leave precious resources more readily available for his offspring.

As human beings, we are capable of both moral excellence and degra- dation or abomination unknown in the animal kingdom. Not mere subjects of biological determinism, we construct mores, norms, and laws as part of civil society to ensure the continuity of the race/species. The emphasis then is that we do participate in the deliberate conceptualization and construction of conjugal forms, procreative choices, and systems of care and protection

that facilitate survival and continuity.
33
To pretend that we do not do this

consciously, or to ignore the intentional aspects of our family concepts, reduces us to an animal-like state of mere biological reproduction.

In short, “family” is no epiphenomenon that occurs naturally. To suppose this is to pretend that all that is needed is physical survival – that there is no need to honor the rules of civilization or to acknowledge the Islamic ethos with its goal of forming a just social system in order to facili-

tate the

voluntary surrender of the human will to

the will of Allah.

Overlooking the conscious intent in social constructs means there is no need to obey the limits set by Allah. On the contrary, as human beings we are created vicegerent or trustee over nature,
not
mere subjects of “nature.” Biological determinism is not the moral basis of Islamic society, so why should it be for family? This historical look demonstrates the conscious organization of human kinship arrangements and family.

As elsewhere in this book, this discussion is premised upon certain ideas

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135

about history and development, Islamic and otherwise. Let us examine other significant global phenomena affecting the construction of family in modernity: the industrial revolution; colonialism; post-colonialism; and the advantages and disadvantages of extended and nuclear family constructs as affected by these phenomena.

COLONIALISM AND POST-COLONIALISM

The term
ummah
(or community) was applied to a united Muslim empire until 1924 with the end the Ottoman Empire. Since that time, any mention of
ummah
is more symbolic and sentimental in focus. The
ummah
was once a genuine political realm or empire, but now it is a social and psychological realm up against the global establishment of the nation-state. At the same time as the
ummah
empire ended, Western colonialism rapidly expanded. Many of today’s Muslim nation-states came under colonial rule. Those not under direct military or political rule are surely under the ideological and economic influence of the colonial West.

The colonial process within these newly formed Muslim nation-states included the wholesale borrowing from Western legal systems for matters of tort, criminal procedure, and family law, as well as the more important matters of political law, economics, and constitution. One trend in the post-colonial Islamization movements reflects the failure of various Muslim nation-states that had wholeheartedly adopted Western positive law. To offset the effects of feeling this failure, and to demonstrate the a priori prominence of Islamic tradition, many Muslims are seeking the re-estab- lishment of Islamic law. This is especially true in the areas of family law, personal status law, and the
hudud
ordinances, or penal codes derived from the Qur’anic articulation of harsh punishments for certain crimes. Again,