Voices of Islam (252 page)

The new ‘‘Reformist’’ thinking is still evolving and it is too early to outline the contours of its gender discourse. But it clearly differs from that of the Neo-Traditionalists in three major ways. First, Reformist discourse does not see the
fiqh
notion of gender as sacrosanct or its rulings as above critical evalu- ation. Second, in contrast to Neo-Traditionalist authors such as Maududi and Mutahhari, who introduce questionable Western sources and ‘‘scien- tifi ’ and naturalist theories to explain and justify the disparity between men and women’s rights in the Shari‘a, Reformist thinkers return to Islamic sources to argue for the necessity of a new reading of these sources in line with changed conditions and the principles of justice and equality that are now agreed to be an essential part of Islam’s message. Finally, and most importantly in my view, the Reformists are more or less silent on women’s sexuality, a silence which is important as it not only enables them to promote an Islamic jurisprudence where women can be treated as social rather than merely sexual beings but also in time can sever the link (implicit in classical
fiqh
rulings) between constructions of gender and theories of sexuality. It is this link that underlies the inability of Neo-Traditionalist writers to go

Islam and Gender Justice
103

beyond old
fi h
notions of gender rights, despite their success in making equality between sexes in the spiritual realm an undisputed element of contemporary gender discourses.
48

SOME ANSWERS?

Let me end this chapter by suggesting some answers to my opening questions, which I would now rephrase as: How and why were classical con- structions of gender in Islamic law premised on such a strong theory of inequality that they came to by-pass the values and objectives of the Shari‘a? Can there be an equal construction of gender rights in Islamic law?

I explored the first question in the context of the classical
fiqh
discourse on gender. The gist of my argument was that the genesis of gender inequality in Islamic law lies in the inner contradictions between the ideals of the Shari‘a and the norms of Muslim societies. While Shari‘a ideals call for freedom, justice, and equality, their realization was impeded in the formative years of Islamic law by Muslim social norms and structures. Instead, these social norms were assimilated into
fi
rulings through a set of theological, legal, and social theories and assumptions that reflected the state of knowledge of the time, or were part of the cultural fabric of society.
49
In this way, Islamic legal tradition became the prisoner of its own theories and assumptions, which in time came to overshadow the ‘‘ethical’’ voice of Islam and its call for justice and reform, thus negating the spirit of the Shari‘a.

I raised the second question—the possibility of achieving gender equality within an Islamic framework—through a discussion of two new legal discourses that emerged in the twentieth century. The Neo-Traditionalists succeeded in rounding some of the harsher edges of classical
fi h
notions of gender, but their defensive and apologetic approach left them in an intellec- tual cul-de-sac. The Reformists, who emerged in the closing years of the cen- tury as part of an internal response to political Islam, display a refreshing pragmatic vigor and a willingness to engage with nonreligious perspectives. They have also sheltered feminist voices and feminist scholarship, which are shifting the old and tired debate on ‘‘women’s rights in Islam’’ onto new ground.
50

These feminist voices in Islam, in my view, are in a unique position to bring about a much needed paradigm shift in Islamic law. They are exposing the inequalities embedded in current interpretations of the Shari‘a, not as mani- festations of the divine will but as constructions by male jurists. This exposure has important epistemological and political consequences. Taken to its logical conclusion, this argument demonstrates that some rules hitherto claimed as ‘‘Islamic’’ and part of the Shari‘a are in fact merely reflections of the views and perceptions of some Muslims, and are rooted in social practices and norms that are neither sacred nor immutable but human and changing.

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Voices of Change

The political consequence is both to free Muslims from taking defensive positions and to enable them to go beyond old
fi
dogmas in search of new questions and new answers.

Both these feminist voices and the reformist Islam of which they are a part are still in a formative phase, and their future prospects are tied to political developments all over the Muslim world—and to global politics. Their hope of redressing the gender inequalities in orthodox interpretations of the Shari‘a depends on the balance of power between Neo-Traditionalists and Reformists, and their ability to organize and participate in the political process and to engage with the advocates of each discourse. They have already started to make their impact, as evidenced in the trend of family law reforms in the new millennium, notably the 2004 Moroccan family code that establishes equality in marriage and divorce between spouses within an Islamic framework.
51

NOTES

1. This chapter draws on and expands the argument of Mir-Hosseini (2003a and 2006). An earlier version was presented in the Ertegun Open Seminar Series at Princeton University in November 2005. I am grateful to Elizabeth Frierson for invit- ing me to Princeton, and to other participants in the seminar, in particular Christine Stansell for her comments as discussant, and Michael Cook for criticism that helped me to clarify my argument. My warmest gratitude goes to Richard Tapper who read the chapter in its various incarnations and helped in the process of writing.
   

2. A clear statement of position is important, as the literature on Islam and women is replete with polemic in the guise of scholarship, see Mir-Hosseini (1999: 3–6).
   

3. Among current scholars of Islamic law, Kamali (1989: 216) and Abou El Fadl (2001: 32–35) use this distinction; An-Na‘im (2000: 33–34) does not.
   

4. For a discussion of conceptions of justice in Islamic texts, see Khadduri (1984). In brief, there are two schools of theological thought. The prevailing
   Ash‘ari
   school holds that our notion of justice is contingent on religious texts: whatever they say is just and not open to question. The
   Mu‘tazili
   school, on the other hand, argues that the value of justice exists independent of religious texts; our sense and definition of justice is shaped by sources outside religion, is innate and has a rational basis. I adhere to the second position as developed by Abdolkarim Soroush, the Iranian reformist philosopher. According to Soroush, we accept religion because it is just, and any reli- gious texts or laws that defy our contemporary sense of justice or its definition should be reinterpreted in the light of an ethical critique of their religious roots. In other words religion and the interpretation of religious texts are not above justice and ethics. In summer 2004, Soroush expounded his argument in a series of four lectures on ‘‘Religious Society, Ethical Society,’’ delivered in Amir-Kabir University, Tehran (not yet available in print but available as audio cassettes, Tehran: Sarat).
   

5. Kamali (1996: 21).

6. Ahmed (1991: 58).

Islam and Gender Justice
105

1. It is important to note that, as feminist scholarship on religion teaches us, such a tension is present in other scriptural religions. See Gross (1993) for this tension in Buddhism, Ruether (1983) and Schussler Fiorenza (1984) for Christianity, Herschel (1983) and Plaskow (2005) for Judaism.
   

2. For differences among the
   fiqh
   schools, see Ali (2002), Maghniyyah (1997).
   

3. Ghazali (1998: 89). For another rendering of this passage, see Farah (1984:120).
   

10. Hilli (1985: 428).

1. Ruxton (1916: 106). Jorjani, another Maliki jurist, defi marriage in the following terms: ‘‘a contract through which the husband acquires exclusive rights over the sexual organs of woman’’ (quoted by Pesle 1936: 20).
   

2. For similarities in the juristic conceptions of slavery and marriage, see Marmon (1999) and Willis (1985).
   

3. For these disagreements see Ali (2003: 70–82); for the impact of these dis- agreements on rulings related to
   mahr
   and the ways in which classical jurists discussed them, see Ibn Rushd (1996: 31–33).
   

4. For differentiation by Hanafi jurists between social and commercial exchange, and the valorization of the human body, see Johansen (1995, 1996).
   

5. For a discussion, see ‘Abd Al ‘Ati (1997); the last purpose takes the prime place in the writings of radical Islamists such as Maududi (1983, 1998).
   

6. In Shi‘a law a man may contract as many temporary marriages (
   mut‘a
   ) as he desires or can afford. For this form of marriage, see Haeri (1989).
   

7. Many terms commonly used today in different countries for ‘the veil’, such as
   hijab, parda
   (‘purdah’),
   chador, burqa,
   are not found in classical
   fi h
   texts. For a discussion of
   hijab
   in
   fiqh
   texts, see Mutahhari (1992).
   

8. Some (‘Abd Al ‘Ati 1997, Esposito 1982) argue that the advent of Islam weakened the patriarchal structures of Arabian society, others (Ahmed 1992, Mernissi 1991) that it reinforced them. The latter also maintain that, before the advent of Islam, society was undergoing a transition from matrilineal to patrilineal descent, that Islam facilitated this by giving patriarchy the seal of approval, and that the Qur’anic injunctions on marriage, divorce, inheritance, and whatever relates to women both reflect and affirm such a transition. Both base their conclusions on the work of William Robertson Smith. For concise accounts of the debate, see Smith (1985), Spellberg (1991).
   

19. Esposito (1982: 14–15).

20. Of more than 6,000 verses in the Qur’an, only six treat men and women differently; four of these concern marriage and divorce (Qur’an 2: 222, 228 and 4: 3, 34). For a discussion, see Sardar Ali (1998). For egalitarian interpretations of these verses, see Barlas (2002), Guardi (2004), Mubarak (2004), Umar (2004), Wadud (1999, 2004).

21. See Mernissi (1991), El Guindi (1999: 152–7), Abou El Fadl (2001: 209– 263), Stowasser (1997).

1. There are two important recent studies of this. Hajjaji-Jarrah (2003) shows the infl of social forces on the way in which the
   hijab
   verses were understood in the works of two commentators (Tabari and Razi). Clark (2003) shows the lack of concern with women’s covering in the Hadith literature, and no explicit reference
   

   106
   Voices of Change
   

   to the covering of hair; there are more
   hadith
   on men’s dress and covering their
   ‘awra
   

   than on women’s dress.
   

2. As Abou-Bakr (2004) shows, women remained active in transmitting religious knowledge, but their activities were limited to the informal arena of homes and mosques and their status as jurists was not officially recognized.
   

24. Sachedina (1999b: 149).

25. See Barlas (2002), Hassan (1987, 1996), Mernissi (1991), Wadud (1999,

2004).

1. See Mernissi (1985), Mir-Hosseini (2004), Sabbah (1984).
   

2. This rationale is found in many contemporary texts on women in Islam; an explicit example is Maududi (1998).
   

3. Sachedina (1999a: 29); emphasis added.
   

4. Here I am concerned with the theory of Islamic law, not with its practice. It is essential to note that, while at the theoretical level the
   fuqaha
   claim that Islamic law is immutable, at the level of practice, flexibility and adaptability are two of its salient features, which have enabled it to be meaningful in a variety of cultural and social contexts from the outset. For an insightful discussion of the ways in which women in premodern times related to Islamic law, see Rapoport (2005) and Sonbol (1996, esp. Introduction); for contemporary examples, see Mir-Hosseini (1993), Welchman (1999).
   

5. For a discussion of such writings in the Arab world, see Haddad (1998), Stowasser (1993); for Iran, see Mir-Hosseini (1999); for Muslims living in Europe and North America, see Roald (2001); texts in English include Abusulayman (2003), Badawi (1995), Chaudhry (1995), Doi (1989), Khan (1995), Maududi (1983, 1998), Mutahhari (1991, 1992), Rahman (1986), Siddiqi (1952), Al- Sadlaan (1999).
   

6. For a concise discussion of the terms of the marriage contract and their adoption by legal codes in Arab countries, see El Alami (1996).
   

7. See Nasir (1990:125–142). For reforms and codification of family law in the Muslim world, see Anderson (1976), Mahmood (1972), El Alami and Hinchcliffe (1996).
   

8. See Mir-Hosseini (1993: 10–13).
   

9. Maududi (1983).
   

10. Badawi (1995); a short version of the booklet is posted on several Islamist websites.
    

11. Mutahhari (1991), Maududi (1998); both books are available in English and Arabic and have gone through many editions; for a reading of their texts, see Shehadeh (2003).
    

12. ‘Allama Tabataba’i, the renowned Shi‘i philosopher, was the first to advance this theory in his monumental Qur’anic commentary known as
    Al-Mizan,
    written in Arabic between 1954 and 1972; see Mir-Hosseini (2003b).
    

38. Ibid., 274.

39. Ibid., 297.

40. Ibid., 298.

1. I elaborate this in Mir-Hosseini (2006).
   

   Islam and Gender Justice
   107
   

2. There is now a growing literature on Islamic feminism; see, for instance, Afshar (1998), Badran (2002), Fernea (1998), Mir-Hosseini (1999, 2006), Mirza (2000, 2006), Paidar (1996), Roald (1998), Shaikh (2003), Yamani (1996).
   

3. For the textual genealogy of this thinking, see Kurzman (1998).
   

4. Although Soroush himself, in line with many other religious intellectuals in Iran, does not subscribe to the gender equality perspective, his ideas have not only laid the foundation of what later became known in Iran (following President Muhammad Khatami’s election in 1997) as the Reform Movement, but enabled religious women like those of
   Zanan
   magazine to reconcile their faith with their feminism. For Soroush’s ideas on gender and my debate with him, see Mir-Hosseini (1999: Chapter 7); for selections of his writings in English, see Soroush (2000).
   

5. Soroush (1996).
   

6. For his work, see Mir-Hosseini (1999: Chapter 8).
   

7. Kadivar (2003).
   

8. Mir-Hosseini (2004).
   

9. See also Masud (2001).
   

10. Many of these scholars still avoid the term ‘feminist’ and instead call them- selves Muslim women scholars or activists (see Webb 2000). A large majority of them have focused their scholarship on Qur’anic interpretation: Barlas (2002), Hassan (1987, 1996, 1999), Jawad (1998), Mernissi (1991), Shaikh (1997), Wadud (1999, 2004). The following deal directly with
    fi :
    Al-Hibri (1997, 2000, 2001), Ali (2002, 2003), Mir-Hosseini (1999, 2003a), Sardar Ali (1998). Abou El Fadl (2001), An-Na‘im (2000), Engineer (1992) and Esack (2001) are prominent among male scholars who have written on women’s rights.
    

11. For the new code see Foblets and Carlier (2005), and for related debates and political context, see Buskens (2003).