WUNRN
CHALLENGIG THE PATRIARCHAL ETHICS OF
MUSLIM LEGAL TRADITION
Author Ziba Mir-Hosseini is a legal anthropologist and a
founding member of Musawah Global
Movement for Equality and Justice in the Muslim Family. She is lead editor of
the just-published book “Gender
and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal
Tradition” ( I B Tauris).
13
May 2013 - One lesson from the 1979 Iranian revolution and the 2011 Arab
revolutions is that activists seeking to promote women’s rights, human rights
and the transition to democracy must challenge patriarchy from within the
Muslim legal tradition.
Islam’s textual sources (the Qur’an and
Sunna, the practice of the Prophet) are the source of Muslim ethical values and
norms. They have been articulated, since the beginning, mainly by Muslim
scholars. Central to these values, and to the philosophy of law in Islam, is
justice, which the classical jurists endeavoured to translate into legal
rulings. But the rulings that have come down to us rest on pre-modern
conceptions of justice, gender and rights, which entitled individuals to
different rights on the basis of faith, status and gender.
These rulings continue to be regarded as the
established interpretations of the Shari‘a. In the course of the 20th century
they came to be confronted by modern conceptions of justice and rights, and the
ideals of universal human rights, equality and personal freedom. In this
encounter some Muslims came to see these rulings as unjust and discriminatory,
and the textual sources on which they were justified as hypocritical, or at
best contradictory.
The Core Problem
A widening gap has opened between
contemporary ideas of justice and those that informed the jurists’ rulings and
dominant interpretations of the Shari‘a. This is nowhere more evident than in
the area of Muslim family laws, which are imbued with a strong patriarchal
ethos and continue to be the source of family law in Muslim contexts. For
instance, take these two statements:
" The fundamentals of the Shari’ah are rooted in
wisdom and promotion of the welfare of human beings in this life and the
Hereafter. Shari’ah
embraces Justice, Kindness, the Common Good and Wisdom. Any rule that departs
from justice to injustice, from kindness to harshness, from the common good to
harm, or from rationality to absurdity cannot be part of Shari’ah."
" The wife is her husband’s prisoner, a
prisoner being akin to a slave. The Prophet directed men to support their wives
by feeding them with their own food and clothing them with their own clothes;
he said the same about maintaining a slave."
Both statements were made by the same
scholar, Ibn
Qayyim al-Jawziyya, a 14th-century jurist and one of the great reformers of
his time, who became the source of inspiration for many 20th-century Islamists.
But through modern eyes the two statements seem poles apart. The first, which
depicts the ideal of Shari‘a as the divine and just law, speaks to all
contemporary Muslims, and both advocates of gender equality and their opponents
often use it as an epigraph. The second statement reflects how marriage and
gender relations came to be defined by medieval jurists. The idea of a wife as
prisoner or slave of her husband seems incompatible with a law that embraces
justice, kindness, and wisdom. Consequently, Muslim legal tradition and its
textual sources have come to appear hypocritical or at best self-contradictory.
This faces those who struggle to reform
Muslim family laws with difficult questions: What really is the notion of
justice in Islam’s sacred texts? Does it include the notion of equality for
women before the law? If so, how are we to understand those elements of the
primary sources of the Shari‘a that appear not to treat men and women as
equals?
Can gender equality and Shari‘a-based laws go together? Such
questions are central
to the on-going struggle for an egalitarian construction of family laws in
Muslim contexts, and have been vigorously debated
among Muslims since the late nineteenth century. They are at the core of a new
book – Gender and Equality in Muslim Family
Laws – that offers a new framework for rethinking the old
formulations so as to reflect contemporary realities and understandings of
marriage, justice, ethics and gender rights. Based on fieldwork in family
courts, and illuminated by insights from scholars and clerics from Morocco,
Egypt, Iran, Pakistan and Indonesia, as well as by the experiences of human
rights and women’s rights activists, the book identifies several approaches
that resolve and transcend what many still regard as an irreconcilable conflict
of ideas and practices.
A ‘Newly-Created Question’
Gender equality is a modern ideal, which only
recently, with the expansion of human rights and feminist discourses, has
become inherent to generally accepted conceptions of justice. In Islam, as in
other religious traditions, the idea of equality between men and women was
neither relevant to notions of justice nor part of the juristic landscape. To
use an idiom from Muslim juristic tradition, gender equality is a ‘newly
created issue’, that is, an issue for which there are no previous rulings.
Simply put, gender equality is a problem that Muslim jurists did not have to
address until the 20th century.
In other words, the idea of gender equality
created an epistemological
crisis in Muslim legal tradition that Muslims have been trying to meet,
with varying degrees of success, since the late 19th century. The
break-through, however, came in the second part of the 20th century with the
emergence of new reformist and feminist voices and scholarship in Islam that
have challenged
the patriarchal ethics of Muslim family laws.
This challenge needs to be placed in two
related contexts. The first is the encounter between two radically opposed
value systems, one rooted in pre-modern conceptions of justice, gender and
rights, as embodied in classical jurists’ rulings that sanction discrimination
on the basis of gender, the other shaped by the contemporary ideals of human
rights, equality and personal autonomy, based in international human rights
standards and documents and advocated by feminism. This encounter has produced
a dialogue between proponents of Muslim law and international human rights law
that is undermining
the patriarchal understandings of Shari‘a.
The second context is that of 20th-century
shifts, both globally and locally, in the politics of religion, law and gender,
and the changed relations between fiqh
(Islamic jurisprudence), state and social practice in the Muslim world. Here, a
number of developments were important.
The partial reform and codification
of fiqh rulings
in many Muslims countries in the first part of the century led to the creation
of a hybrid family law that was neither classical fiqh nor Western. Codes and statute books
took the place of fiqh manuals;
family law was no longer solely a matter for private scholars – the fuqaha – operating within
a particular fiqh
school, rather it became the concern of the legislative assembly of a particular
nation-state.
In practice this worked against
women, as patriarchal interpretations of the Shari‘a acquired a new life and
unprecedented power; they could now be imposed through the machinery of the
modern nation-state, which had neither the religious legitimacy nor the
inclination to challenge them. Confined to the ivory tower of the seminaries,
Islamic legal theory became more and more scholastic, as jurists lost touch
with changing political realities and were unable to meet the epistemological challenges
of modernity, such as the idea of gender equality. The religious tone of those
areas, notably family law, where fiqh
remained the basis was reinforced as they turned into the last bastion of
Islamic legal tradition, to be guarded at all costs.
With the rise of political Islam in
the late 20th century, Islamist political movements became closely identified
with patriarchal notions of gender drawn from classical fiqh. Political Islam and
its slogan of ‘Return to Shari‘a’, which in practice amounted to little more
than translating into policy pre-modern juristic rulings on gender relations
and the family, provoked criticism and spurred women to increased activism.
Islamists’ defence of patriarchal rulings as ‘God’s Law’, as the authentic
‘Islamic’ way of life, brought the classical fiqh
books out of the closet, and unintentionally exposed them to critical scrutiny
and public debate. This opened a space, an arena, for an internal critique of
patriarchal readings of the Shari‘a that was unprecedented in Muslim history. A
growing number of women came to question whether there was any inherent or
logical link between Islamic ideals and patriarchy. By the early 1990s, many
women (and some men) had acquired a new consciousness, a new way of thinking
about gender, and were arguing for equality for women on all fronts within the
framework of Islam. This new approach has been nurtured by reformist and
feminist scholarship in Islam that is both uncovering a hidden history and
rereading textual sources to unveil an egalitarian interpretation of the sacred
texts.
At the same time, the expansion of
human rights ideals and instruments, in particular the Convention on
Elimination of all forms of Discrimination Against Women (CEDAW), gave women’s
rights activists what they needed most: a point of reference, a language and
organizational tools for their struggle to resist the regressive policies of
political Islam. The 1980s saw the rise of an international women’s movement,
and women’s NGOs with international funds and transnational links gave women a
voice in policymaking and public debate over the law.
Further, new approaches to Islamic
legal tradition have been facilitated since the late 20th century by the rapid
spread of new technologies, notably the internet. Now, both recognized
religious authorities and those with other interpretations and agendas, not
least women scholars and lay people, are engaging in debate and criticism of
interpretations, old and new, of texts and legal concepts; and these new
technologies regularly show their potential for the mobilization of campaigns
for change. New and egalitarian readings of Islam’s sacred texts have
challenged patriarchal dogmas, which are losing their theological validity and
their power to convince.
In short,
20th century developments not only made gender equality inherent to widely
accepted conceptions of justice, but also made the intimate links between
theology and politics increasingly transparent. This led to the emergence of
feminist voices and scholarship in Islam, which by the new century came to
constitute an internal critique of the patriarchal ethics of Muslim legal
tradition that cannot be ignored. They are forcing
the tradition to assimilate an idea that until recently was considered
alien: the idea of gender equality.
The Iranian
revolution of 1979 and the Arab revolutions of 2011 clearly demonstrated that
in Muslim contexts women’s rights are vulnerable to local power struggles
between forces with other priorities. Islamist elements that tend to win
popular support in times of upheaval are almost always motivated by
traditionalist patriarchal assumptions and policies. To challenge them
effectively, defenders of women’s rights, and, in turn, human rights and the
transition to democracy, must engage with the Muslim legal tradition on which
these assumptions are founded.
One of the main contributions of feminist voices and scholarship in
Islam is to unmask the power politics that are defended in the guise of
religious values and Shari‘a; in doing so they are creating a public voice that
can break down ideological polarizations such as those between ‘secular’ and
‘religious’ feminism, and between ‘Islam’ and ‘human rights’, and point us to
the main battleground, which is that between patriarchy and despotism on the
one hand, and gender equality and democracy on the other.
Gender
and Equality in Muslim Family Law: Justice
and Ethics in the Islamic Legal Tradition, edited by Ziba Mir-Hosseini, Kari
Vogt, Lena Larsen and Christian Moe (London, IB Tauris) was launched on 27
April, 2013 at SOAS. The book results from the project 'New
Directions in Islamic Thought and Practice' of the Oslo Coalition on Freedom of
Religion or Belief.