Voices of Islam, Volume 5

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From Voices of Islam, Volume 5, Voices of Change, edited by Vincent Cornell, Omid Safi and Virgina Gray Henry (Westport, Connecticut and London, 2007), pp. 85-113.
Islam and Gender Justice

Ziba Mir-Hosseini

For a century or more, one of the ‘hottest’ areas of debate among the 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 anti-colonial 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 the 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 inequalities embedded in prevailing interpretations of the Shari‘a. I ask two prime questions: If justice and equality are intrinsic values in Islam, as many contemporary 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 reflected in the laws that define 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 reconstructed in the vast twentieth-century literature on ‘Women in Islam’. I end by outlining an emerging gender discourse that is feminist in its aspirations and demands and Islamic its language and sources of legitimacy.

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 codified 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 endeavour 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, fiqh 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 popular 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 fiqh, 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 fiqh, 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 fiqh 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 positive laws and rulings that Muslim jurists claim to be rooted in the sacred texts.

My second distinction, which I also take from 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). 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’, ‘endeavour’), 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 socio-cultural 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, assumptions 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 pre-modern jurists as it was not part of their social experience. Secondly, 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, reflects 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 Thirdly, gender rights as constructed in classical fiqh – 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.

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