SHARIA LAW AND WOMEN’S RIGHT…Part 1

Saleh writes;

Debate on human rights dates back to the seventh century natural rights theorists. Hobbes in his Leviathan argued that people have natural rights to self-preservation. Once a person is born that instinct presupposes the right of the person to self-preservation. Lock on his part argues that every person is born with a body of rights such as the right to life, liberty, speech, association, property and others. And to Hobbes again, it is to enhance these rights that Governments are set up by the people with the sole mandate to protect these rights.

In contemporary global politics however, concerns with women’s rights has gained enormous attention especially after the Beijing conference, with women calling for the abolition of all forms of discriminations against them. But the campaign against all forms of discriminations against women started for almost three centuries away. In her book, A Vindication of the Rights of Woman, Mary Wollstonecraft argued, that men and women alike shared in the rights bestowed by nature. For her, the rights of liberty and equality applied to both men and women, and fraternity made men brothers, then men must accept that they had sisters as well. Wollstonecraft categorically rejected Rousseau’s contention that women are to please, to be useful to {men}, to make {men} love and esteem them, to educate {men} when young, and to take care of {men} when grown up, to advice, to console {men} and to render {men’s} lives easy and agreeable. Unfortunately, many studies have indicated, that women in the Islamic countries are treated in the exact way Rousseau depicted them, thus painting a dark picture on the Islamic religion.

It is against this backdrop that this paper intends to demonstrate, that Islamic Law, the Shari’a has in fact protected the rights and liberty of women. Based on the six main sources of Islamic Law, the paper will focus on how women’s rights have been protected in relation to marriage, divorce, polygamy, and property ownership. But to avoid confusion, it is important to state ab initio, that there is a big difference between Shari’a and Fiqh (Jurisprudence).
Shari’a refers to the canon law of Islam and it includes the totality of Allah’s commandments. And these commandments are general and specific principles that need to be followed. For Fiqh, it is the process of deducing and applying Shari’a principles and injunctions in real or hypothetical cases or situations.

So in applying the broad principles to specific situations, one reaches the practical application of Shari’a. Thus, it is possible to deduce from these general norms, specific laws pertaining to different fields of laws. And as a matter of fact, in the analysis of Islamic Law, Fiqh is at the core of the debate not Shari’a. The interpretations and practical implementation of the broad norms found in the Qur’ān and Sunna can be diverse and sometimes controversial. In other words, depending on the context and on the tools of interpretation, the same verse of the Qur’ān can be interpreted differently. Yet, it is in the diversity of opinions and flexibility that one can reach an area of compatibility between Islam and international standards of women’s rights.

The sources of Islamic Law are important to analyze because they include tools and methods of reasoning and interpretation, which are essential in understanding the issues of women’s right in Islam. Other than the Qur’ān and the Sunna (the traditions and praxis of the Prophet), the other sources are consensus (Ijmā’a), Analogy (Qiyās), human reasoning (Ijtihad), Public Interest (Maslatu ‘Āma) and custom (‘Urf). These elements are changing and evolving, thus they are the essence of flexibility in Shari’a. If used in a progressive way, one can ensure the protection of women’s rights.

For the Qur’ān, it is the sacred book of Islam believed to have been revealed by God to Muhammad (P.B.U.H). And as indicated by Abdel Haqq, the Qur’ān is not and does not profess itself to be a code of law or a law book, instead, it serves as the cornerstone upon which Islamic Law is based – the primary source for the principles of law – in addition to selected, specific injunctions. There is an overall consensus about the supremacy of the Qur’an over the other sources among Muslim Scholars and the schools of thought. The Sunna represents the second main source of Islamic Law. It is divided into: the sayings of the Prophet (Hadith or Sunna Qawliyya), His acts (Sunna Fi’liyya) and His tacit consent (Sunna Taqririyya).

In cases where the Qur’ān and the Suna fail to answer legal questions, consensus or Ijmā’a is considered as another source of law. Learned scholars of Islam and/or community of Muslims of a particular era come to an agreement on an issue and individual reasoning via several methodologies.

Another source of Islamic law is the Qiyās or Analogy. Nonetheless, this source is subordinate to Ijmā’a. In other words, if consensus has not been made about an issue, then Qiyās would be accepted as a source of legislation. It consists in comparing a case that has a common feature with the case at hand, ‘Illa, and applying the judgment of the former to the latter. Only qualified scholars are entitled to exercise this form of individual reasoning. Other sources include; Istihsān or public interest. The Hanbali School calls it Istislāh, whiles the Maliki School refers to it as Masāleh Mursala. Although slight difference exists in the specific definition of each term, scholars agree that: Istihsān is the process of selecting one acceptable alternative solution over another because the former appears more suitable for the situation at hand, even though the selected solution may be technically weaker than the rejected one. The last source of Islamic Law is ‘Urf (custom). The schools of thought treat custom, as a source of law with different importance. An-Na’im argues, that the Maliki and Hanafi schools recognize it, whiles the Shafi’ school completely rejects the use of custom as a source of Islamic Law.

Considering the discussion above, we can deduce that Fiqh is based on numerous sources. Other than the Qur’ān and Sunna, it has the common feature of engaging human reasoning and interpretation in the articulation of Islamic Law.

With this background, we are now set to demonstrate, as already stated, that the Islamic Law has provided for the rights of women, on equal basis to that of men. On the general basis of Islamic rituals, the Qur’ān addressed both sexes on equal terms. In chapter 33:35, the sacred book stated, that

“{verily, for all men and women who have surrender themselves unto God, and all believing men and believing women, and all truly devout men and truly devout women, and all men and women who are patient in adversity, and all men and women who humble themselves (before God), and all men and women who give charity, and all self-denying men and self-denying women, and all men and women who remember God unceasingly: for (all of) them God has readied forgiveness of sins and a mighty reward}”

In as long as God has promised excellent rewards for both sexes with the above mentioned virtues, in reprimanding them too He addressed them at equal level. So in the verse that immediately follows the above, God said: “{Now whenever God and His Apostle have decided a matter, it is not for a believing men or a believing women to claim freedom of choice in so far as they themselves are concerned: for who (thus) rebels against God and His Apostle has already, most obviously, gone astray}”. It is for this reason, that Mayer postulated, that not only did the Qur’an attack institutions of pre-Islamic that contributed to women’s degraded and vulnerable status, but Islam also conferred rights on women in the seventh century that women in the west were unable to obtain until quite recently; Muslim women for example enjoyed full legal personality, could own and manage property, and according to some interpretation of the Qur’ān, enjoyed the right to divorce on very liberal grounds.

Focusing our attention on specific issues, I wish to begin with marriage and women’s right. In concluding the marriage contract, although exceptions exist, the general rule in Islamic countries consists in denying women their right to consummate their marriage. A Muslim woman needs a Wāli (Guardian) to contract the marriage on her behalf. The justification behind this legal requirement is the protection of women who may be victimized by designing men. As al-Hibri argued, this concern appears reasonable, but it makes sense only if we adopt a patriarchal view of women”. But, a rational independent woman of sound judgment requires no protection (although she may seek advice), she added.

Within Islamic jurisprudence, one can find a support to the above argument. The Hanafi School of thought recognizes the mature woman’s right to contract her own marriage. The base of that view is, that Islamic Law enables women to contract in financial issues. Thus, they have the right to contract their own marriages. This example demonstrates how within different schools Islamic Jurisprudence; one can attain a progressive understanding of women’s rights.

On the subject of Tā’ah, which is her obligation to obey her husband, the Qur’ān in Chapter 4:34 stipulates, that

“{men shall take full care of women with the bounties which God has bestowed on the latter, and with what they may spend out of their possessions. And the righteous women are the ones, who guard the intimacy which God has (ordained to be) guarded}”.

Sadly, this verse has been used and abused to support men’s superiority to women and to justify women’s submission to them. Nonetheless, as al-Hibri noted: the Qur’ān was describing (and not recommending) in this āyah a situation akin to the traditional one existing at the time where some women were financially dependent, in those circumstances, that ayah informs us, God gave the man supporting responsibility (Taklīf, not privilege) of offering the woman guidance and advice in those areas in which he happens to be more qualified or experienced. The woman, however, is entitled to reject both (otherwise the advisory role is no longer advisory).

Derived from the above verse, the idea of a wife’s obedient to her husband is stipulated in numerous legal codes in Islamic countries. But this concept of Tā’ah has been used by men to prohibit their wives from leaving the house with the man’s permission, unless the woman is ready to risk loss of financial support and, in some cases, divorce. And al-Hibri indicated, that this unbelievable oppression is an intolerable violation of Qur’anic and international standards of human dignity. And in support of her argument, she added that: As a husband, the Prophet did not demand “obedience” at home, instead, his private life was characterized by cooperation and consultation, all to the amazement the men who knew about it. This egalitarian model is not the basis of the codes which have departed from this Sunna.

Another bone of contention, that is has been (mis)used by men to give a psychological trauma to women is polygamy. The Qur’ān in Chapter 4:3 states, that

“{And if you have reason to fear that you might not act equitably towards orphans, then marry from among (other) women such as are lawful to you – (even) two, or three, or four: but if you have reason to fear that you might not be able to treat them with equal fairness, then (only) one – or (from among) those whom you rightfully possess, this will make it more likely that you will not deviate from the right course}”

The application of this verse has varied tremendously according to the time and location of the practice. In certain countries implementing Islamic Law, polygamy is a protected right by the law, while in other countries such as Tunisia, polygamy is prohibited. In the latter’s case, the reason behind the probation stems from Qur’ān Chapter 4:129 which reads

“{And it will not be within your power to treat your wives with equal fairness, however much you may desire it}”.

This verse seems to respond to the one above, that it is men’s obligation to maintain equal treatment towards their wives and since that is naturally impossible, then they are obliged to completely refrain from taking a second wife.

to be continued…

Saleh Muhammad Salis

Graduate Student

Let us your Opinion about women’s right in Islam in the comment box below

Ijara

Islam-Life-Confidence

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