Voices of Islam (248 page)

5
‌

I
SLAM AND
G
ENDER
J
USTICE

•

Ziba Mir-Hosseini

For a century or more, one of the ‘‘hottest’’ areas of debate among Muslims has been the ‘‘status of women in Islam.’’
1
The debate is embedded in the history of polemics between Islam and the West, and the anticolonial and nationalist discourses of the first half of the twentieth century. With the rise of political Islam in the second half of the century, and the Islamist political slogan of ‘‘Return to Shari‘a,’’ the debate took a new turn and acquired a new dimension. It became part of a larger intellectual and political struggle among Muslims between two understandings of their religion and two ways of reading its sacred texts. One is an absolutist, dogmatic and patriarchal Islam that makes little concession to contemporary realities and the aspirations of Muslims. The other is a democratic, pluralist and rights-based Islam that is making room for these realities and values, including gender equality.

In this chapter I trace the political and textual genealogy of this ‘‘rights- based’’ Islam, and explore its potential for addressing the gender inequal- ities embedded in prevailing interpretations of the Shari‘a. I ask two prime questions: If justice and equality are intrinsic values in Islam, as many con- temporary Muslim jurists claim and Muslims believe, why are women treated as second-class citizens in Islamic jurisprudential texts? If equality has become inherent to conceptions of justice in modern times, how can it be refl in the laws that defi the rights of men and women and regulate relations between them in contemporary Muslim societies?

I begin with a note on my own position and conceptual background; then proceed to an examination of notions of gender rights as constructed in classical jurisprudential texts and as debated, deconstructed and recon- structed in the vast twentieth-century literature on ‘‘Women in Islam.’’ I end by outlining an emerging gender discourse that is feminist in its aspira- tions and demands and Islamic in its language and sources of legitimacy.

86
Voices of Change

CONCEPTUAL BACKGROUND

I approach these questions not only as a trained legal anthropologist but also as a believing Muslim woman who needs to make sense of her faith and her religious tradition.
2
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. These distinctions are made by all Muslim jurists and have been upheld in all schools of Islamic law, but have been distorted and obscured in modern times, when modern nation-states have created uniform legal systems and selectively reformed and codifi elements of Islamic family law, and when a new political Islam has emerged that uses Shari‘a as an ideology.

The first distinction is between Shari‘a, revealed law, and
fiqh,
the science of Islamic jurisprudence.
3
This distinction underlies the emergence of various schools of Islamic law and within them a multiplicity of positions and opinions. Shari‘a, literally ‘‘the way,’’ in Muslim belief is the totality of God’s will as revealed to the Prophet Muhammad.
Fiqh,
jurisprudence, literally ‘‘understanding,’’ is the process of human endeavor to discern and extract legal rules from the sacred sources of Islam: that is, the Qur’an and the Sunna (the practice of the Prophet, as contained in
Hadith,
Traditions). In other words, while the Shari‘a is sacred, eternal, and universal,
fi
is human and—like any other system of jurisprudence—mundane, temporal and local. It is essential to stress this distinction and its epistemological and political ramifications.
Fiqh
is often mistakenly equated with Shari‘a, not only in popu- lar Muslim discourses but also by specialists and politicians, and often with ideological intent: that is, what Islamists and others commonly assert to be a ‘‘Shari‘a mandate’’ (hence divine and infallible), is in fact the result of
fi ,
juristic speculation and extrapolation (hence human and fallible).
Fiqh
texts, which are patriarchal in both spirit and form, are frequently invoked as a means to silence and frustrate Muslims’ search for this-worldly justice—to which legal justice and equality in law are intrinsic. I contend that patriarchal interpretations of the Shari‘a can and must be challenged at the level of
fi h,
which is nothing more than the human understanding of the divine will— what we are able to understand of the Shari‘a in this world at the legal level. In short, it is the distinction between Shari‘a and
fi
that enables me—as a believing Muslim—to argue for gender justice within the framework of my faith.
4
Throughout this chapter, then, the Shari‘a (as contained in the Qur’an and the Prophetic Traditions) is understood as a transcendental ideal that embodies the justice of Islam and the spirit of the Qur’anic revelations; while
fiqh
includes not only the vast corpus of jurisprudential texts but also the pos- itive laws and rulings that Muslim jurists claim to be rooted in the sacred texts. My second distinction, which I also take from the Islamic legal tradition,

is that between the two main categories of legal rulings (
ahkam
): between

‘ibadat
(ritual/spiritual acts) and
mu‘amalat
(social/contractual acts).

Islam and Gender Justice
87

Rulings in the first category,
‘ibadat,
regulate relations between God and the believer, where jurists contend there is limited scope for rationalization, explanation, and change, since they pertain to the spiritual realm and divine mysteries. This is not the case with
mu‘amalat,
which regulate relations among humans and remain open to rational considerations and social forces. Since human affairs are in constant change and evolution, there is always a need for new rulings, based on new interpretations of the sacred texts, in line with the changing realities of time and place. This is the very rationale for
ijtihad
(literally, ‘‘self-exertion,’’ ‘‘endeavor’’), which is the jurist’s method of finding solutions to new issues in the light of the guidance of revelation.
5
Most rulings concerning women and gender relations belong to the realm

of
mu‘amalat,
which means that Muslim jurists consider them social and contractual matters, and thus open to rational considerations. My objective in this chapter is to show that discriminatory rulings on women are the products of juristic reasoning and sociocultural assumptions about the nature of relations between men and women. In other words, they are ‘‘man-made’’ juristic constructs, which are shaped by, reflect, and change with the reality on the ground.

There are three interconnected elements to my argument. First, assump- tions about gender in Islam—as in any other religion—are necessarily social/cultural constructions, thus historically changing and subject to negotiation. The idea of gender equality is among the ‘‘newly created issues’’ (
masa’il mustahdatha
), to use a
fiqh
idiom; that it is to say, it was not an issue that concerned premodern jurists as it was not part of their social experience. Second, Islamic legal traditions do not contain one concept of gender, but rather a variety of inconsistent concepts, each resting on different theological, juristic, social and sexual assumptions and theories. This, in part, refl a tension in Islam’s sacred texts between ethical egalitarianism as an essential part of its message and the patriarchal context in which this message was unfolded and implemented.
6
This tension enables both proponents and opponents of gender equality to claim textual legitimacy for their respective positions and gender ideologies.
7
Third, gender rights as constructed in classical
fi h
—and reproduced in dominant contemporary discourses—are neither tenable under contemporary conditions nor defensible on Islamic grounds; not only are they contrary to the egalitarian spirit of Islam, but they are also now being used to deny women justice and dignified choices in life.

GENDER IN CLASSICAL
FIQH

In classical
fi
texts, gender inequality is taken 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. Biology is destiny: a woman is

88
Voices of Change

created to bear and rear children; this is her primary role and her most impor- tant contribution to society. The notion of ‘‘women’s rights’’—as we mean it today—has no place and little relevance in the world of these texts.

The classical
fi h
notion of gender is encapsulated in two sets of rulings: those that define marriage and divorce, on the one hand, and women’s cover- ing and seclusion, on the other hand. Not only do they contain the core of the patriarchal logic, but they should be seen as two sides of the same coin: they deny women choice or voice, restraining them in the public domain by veiling and seclusion, and subjugating them in private through family law. These rulings legitimated and institutionalized the control and subjugation of women throughout the history of the Muslim world, and continue to do so in modern times. In these matters, the various
fi h
schools all share the same inner logic and patriarchal conception. If they differ, it is in the manner and extent to which they have translated this conception into legal rules.
8
An examination of these rulings can tell us something of the genesis of gender inequality in the Islamic legal tradition, which, as we shall see, is rooted in the social, cultural, and political conditions within which Islam’s sacred texts were understood and turned into law.

Marriage: Union or Dominion?

Marriage, as defi ed by classical jurists, is a contract of exchange whose prime purpose is to render sexual relations between a man and a woman licit. Patterned after the contract of sale, which served as a model for most contracts in Islamic jurisprudence, it has three essential elements: the offer (
ijab
) by the woman or her guardian (
wali
), the acceptance (
qabul
) by the man, and the payment of dower (
mahr
), a sum of money or any valuable that the husband pays or undertakes to pay to the bride before or after consummation.

The marriage contract is called
‘aqd al-nikah
(literally ‘‘contract of coitus’’). In discussing its legal structure and effects, classical jurists often used the analogy of the contract of sale and alluded to parallels between the status of wives and female slaves, to whose sexual services husbands/owners were entitled, and who were deprived of freedom of movement. Ghazali, the great twelfth-century Muslim theologian, in his monumental work
Revival of the Religious Sciences,
devoted a book to marriage, where he ech- oed the prevalent view of his time:

It is enough to say that marriage is a kind of slavery, for a wife is a slave to her husband. She owes her husband absolute obedience in whatever he may demand of her, where she herself is concerned, as long as no sin is involved.
9