The subject of women's status, their legal position, and their rights and obligations under Islamic law has attracted over the years heated debates and has stirred multiple controversies. These debates manifested in the past, and continue to manifest not infrequently, deep−rooted misunderstanding, confusion, and distortions shared by many Muslims and non−Muslim critics alike.
I wish to share with you only some general observations on a number of preliminary, but basic, issues pertaining to the subject, which I believe need clarification.
A Definition of Islamic Law
When we speak of Islamic law or Sharia, we must understand the precise meaning of the term. Islamic Law or Sharia refers to the total sum of legal rules and injunctions embodied in the Koran, the Holy Book of Islam, and in the Sunnah, or the Traditions of the Prophet of Islam, as well as other legal rules derived from sources
complementary to these two principal sources. These include consensus of jurists, analogy, the general interest of the public, juristic preference, and custom and usage.
Note 147
This mere enumeration makes it abundantly clear that not every rule of Islamic law is of divine origin nor is it necessarily directly or indirectly derived from a divine source. Many rules of Islamic law were developed by jurists in their quest to respond to the changing needs of the time and place. And in developing and formulating such rules jurists were, in many instances, influenced by their respective local environments, by prevailing custom and usage, and by considerations of public interest under the attending conditions.
Take for example a basic issue of the law of marriage, that is, the right of an adult and mentally sound woman to contract marriage. This issue was subject to divergent opinions between the two leading centers of jurisprudence that emerged in the eighth century (second Muslim Century): the school of Medina (in Hijaz, in the Arabian Peninsula)—which later became the Maliki School of jurisprudence, and the School of Kufa in Iraq—which later became the Hanafi School of jurisprudence.
In Medina, society remained strongly attached to the traditional concepts of Arabian tribal law under which male members of the family enjoyed the prerogative of arranging marriage alliances. No woman therefore could contract a marriage on her own behalf but had to be given by her guardian. In Kufa, on the other hand—a town in Iraq that started as a military encampment—diverse ethnic groups existed in a predominantly Persian
environment, a cosmopolitan atmosphere, to which the standards of a closely knit tribal society were alien.1 Women enjoyed a better position and, in particular, had the right to conclude their own marriage contracts without the intervention of their guardians.
The point here is that neither the Medina rule nor the Kufa rule has a divine origin. Nor can any claim to their immutability be made. They were merely a product of the time and place, and as such they can be modified. Legal reformers in some Muslim countries demonstrated healthy awareness of this fact, especially in the area of family law, which had always been the stronghold of the Sharia, where commendable reforms were introduced in the last four decades or so, reflecting the views and approaches of leading Muslim Reformists, voiced as far back as the late nineteenth century by reformists like Jamal ad−Din al−Afghani, Muhammad Abduh, and Rashid Rida, and their disciples.
The primary task of modern jurisprudence, as one learned western authority noted, therefore, [is] to ascertain the precise limits of the original core of the divine revelationOnce the limits have been ascertained, it is axiomatic that these precepts of the divine revelation must form the fundamental and invariable basis of any system of law which purports to be a manifestation of the will of God.2
Generally speaking, the Koranic precepts are broad enough to support modern legal structures capable of varying interpretations to meet the particular needs of the time and place.
The Islamic Approach to the Position of Women.
All issues pertaining to women and their status in an Islamic framework are not conceived or treated on the basis of an assumption of conflict between men and women and of infringements against women's rights. They are to be conceived from the perspective of the family, its internal relationships and inner dynamics, and the respective roles of its members. This reveals two fundamental features of the Islamic approach: first, the early and clear emphasis on the family as a basic social and educational unit, as the repository of love, affection, and compassion, and as the primary and continuous field of experience and interaction with human relationships; second, the mutual relationships
between women and men in the framework of the family are relationships of cooperation, complementarity, and integration and not of conflict, contradictions, and collision.
The Islamic Approach to the Position of Women. 148
An Observation on the Word Gender
The word gender as we use it in our present context has no corresponding current and used term in the Arabic language, the language of the Koran. The word gender is general, and reference in the Koran to men and women is made by use of the word sex, which is value free. The Koran bears evidence to the foregoing in its reference to the story of creation where it purposely employs gender−neutral terms: O Mankind! Be conscious of Your
Sustainer, who created you out of one living entity, and out of it created its mate, and out of the two spread abroad a multitude of men and women (Al−Nisa [Women], Chapter 4, 1).3
Thus the creation was made out of one living entity, it is neither male nor female. And out of that entity, its mate or spouse was created, who could be either male or female.
Issues of Equality between Men and Women
In prescribing all duties, in enumerating all virtues, and in providing for reward and punishment, the Koran carefully refers to men and women, thereby doubly emphasizing the principle of equality both in value and accountability.
One could appropriately recall here the dialogue that took place in Abyssinia in the court of its Christian King Negus (Najashi) between Jafar b. Abi Talib—the leader of the Muslim migrants from Mecca who were granted asylum—and Amr ibn. Al−As, the then pagan Arab leader who had gone there to demand their return:
Said Jafar: Muhammad teaches us to protect women from misuse. He says God has created women as proper companions to men. Though different from men they are equal to them.
Amr retorted: Equal! We buy them, feed them, clothe them, use them and discard them. Women equal to us?! He laughed!
The Koran repeatedly emphasizes the principle of equality:
I shall not loose sight of the labour of any of you who labours [in My way], be it man or woman: each of you is an issue of the other (Al−Imran (The
House of Imran)− Chapter 3, 195).
Verily, for all men and women who have surrendered 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 true to their word, 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 in charity, and all self−denying men and self−denying women, and all men and women who are mindful of their chastity, and all men and women who remember God unceasingly: for [all of] them has God readied forgiveness of sins and a mighty reward (Al−Ahzab [The Confederates], Chapter 33, 35).
In the framework of the family the Koran establishes the principle that the rights of the wives [with regard to their husbands] are equal to the [husbands'] rights with regard to them (Al−Baquarah [The Cow], Chapter 2, 228). The Koran further emphasizes: Men shall have a benefit from what they earn, and women shall have a benefit from what they earn (Al−Nisa [Women], Chapter 4, 32)
Women were charged just as men with the foremost public duty underlying the very concept of an Islamic state:
the duty to enjoin what is right and to forbid what is wrong.
An Observation on the Word Gender 149
And [as for] the believers, both men and women—they are close to one another [are the protectors [or friends and protectors] of one another], they [all] enjoin the doing of what is right and forbid the doing of what is wrong, and are constant in prayer, and render the purifying dues [Zakat] and pay heed unto God and his Apostle
(Al−Tawbah [Repentance], Chapter 9, 71)
Education is not only a right but a duty of both men and women. Women were given full legal capacity to enter into civil transactions, full capacity to own and dispose of property, and so on. Even on the question of dress, both men and women are required to dress modestly.
Islamic Culture and Islamic Legislative Approach
Islamic Culture and Islamic Legislative approach are different from their Western counterparts in that they do not reject the existence or the recognition of differences between men and women based, in some instances, on biological differences, and in others, on differentiation of roles. This does not and should not involve a difference in value. The consequences of these differences should be very carefully and precisely defined without excess.
Many Muslim moderate intellectuals therefore
argue that the modern Western vision, which does not recognize these differences, is neither scientific nor objective.
What must be emphasized is that the Islamic approach draws a clear distinction between discrimination and classification, and while the fundamental principles of Islam condemn discrimination against women, they do allow for limited classification based on recognizable differences. (Military service for example is compulsory for men but optional for women.)
This is an issue, however, that I believe modern legislators have to approach with the utmost of caution because the dividing line between discrimination and classification may in some instances be very thin.4
Call for Caution
In evaluating the attitude of Islamic law on issues of gender we must not commit one or both of two common gross errors.
The first error is perceiving the existing conditions in some Arab or Muslim countries as the only and the correct expression of the position of Islam and Islamic law. The truth is that the legal and regulatory framework in Muslim countries is primarily an expression of complex political and social circumstances and conditions of the individual country, which may be at variance to a large or small extent with the fundamental directives and guiding principles of the Sharia. More often such laws and regulations are codifications of local customs and traditions which are not based on, or connected with, Islam or Islamic law. In other words, the assumption that religion is the prime determinant in the position of women in a Muslim society is one that I personally find highly questionable. For there are other determinants that are operating, and quite often religion is used to bolster
nonreligious arguments and conflicts.
The second error is to select a specific detailed legal rule in isolation from its general context and without the necessary awareness of its connection with the general principles and directives of the legal system, and then to proceed with comparing it with other detailed rules belonging to another legal system with different principles and a different code of values. This error is frequently a product of a condescending approach which is not
scientifically warranted nor is it acceptable in the field of comparative legal studies. In an age of globalization and internationalization, such an approach constitutes an obstacle to healthy cultural dialogue. A dialogue that ought to be based on mutual understanding and recognition of others and on cooperation in areas of commonalities
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while accepting the differences as a product of pluralism.
Conclusions
A general review of the constitutions of Muslim countries will reveal on the whole an equal treatment between men and women in matters of rights and obligations.
Nevertheless, we still find gaps and deficiencies in employment and labor laws and some family laws as well as other detailed legislation. And equally importantly, we find that women are treated in a variety of respects as second−class citizens suffering de facto discrimination, which frustrates the full exercise of some of their basic human rights whether political, economic, or social. We still find those who use the defense or pretense of tradition and cultural specificity to legitimize the oppression of women. We hear voices rising in the name of Islam to effectively negate the liberating voice of Islam.
Can legal reform rectify the inequities from which women suffer and continue to suffer in Muslim as well as non−Muslim countries? The answer to this question is that legal reform is a necessary first step. But we have to be mindful of the fact that securing full and equal rights for women is a process and not merely a decision. The decision is necessary to start the process and to give it the necessary legitimacy. But much more is needed.
Faithful and rigorous enforcement is needed. Conscious and persistent efforts are needed to place women in position to enforce their rights. A key to this accomplishment is education and economic empowerment, without which the rights granted by laws and regulations will remain mere theoretical abstractions for to the majority of women. The role of civil society is critical in this respect; it should join forces with modern jurisprudence to restore to Muslim women the rights guaranteed to them by the Koran and the Sunnah of the Prophet.
Notes
This text was presented by Sherif Omar Hassan, Assistant General Counsel, Operations, World Bank Legal Department, at the Regional Conference, October 1997, Addis Ababa, Ethiopia.
1. Coulson, N. J. 1991. History of Islamic Law. Edinborough: Edinborough University Press (30).
2. Coulson 1991, p. 224
3. All citations of Koranic texts are taken from Muhammad Asad, 1984, The Message of the Qur'an. Gibraltar:
Dar Al−Andalus.
4. The U.S. Supreme Court noted in this respect although in a different context, that the ultimate test of validity is not whether (there are differences between the different groups classified) but whether the differences between
them are pertinent to the subject with respect to which the classification is made (Metropolitan Casualty Insurance Company v. Brownell 294 U.S. 580, 1935).
Classification must be reasonable—it must regard real resemblance and real differences between things and persons and class them in accordance with their persistence to the purpose in hand. (Troux v. Corrigan 257 U.S.
Conclusions 151
312, 1921).