Justice, Equality and Muslim Family Laws: New Ideas, New Prospects

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JUSTICE, EQUALITY AND MUSLIM FAMILY LAWS

New Ideas, New Prospects¹

Ziba Mir-Hosseini

Contemporary notions of justice, informed by the ideals of human rights, equality and personal freedom, depart substantially from those that underpin rulings in classical fiqh (Islamic jurisprudence) and established understandings of the Shariʿa. This disjunction is a central problem that permeates debates and struggles for an egalitarian family law in Muslim contexts.

For instance, take the following two statements:

The fundamentals of the Shariʿa are rooted in wisdom and promotion of the welfare of human beings in this life and the Hereafter. Shariʿa 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 Shariʿa.²

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.³

Both statements are by Ibn Qayyim al-Jawziyya (1292–1350), a fourteenth-century jurist and one of the great reformers of his time.⁴ The first statement speaks to all contemporary Muslims, and both advocates of gender equality and their opponents often use it as an epigraph.⁵ But the second statement, which reflects classical fiqh conceptions of marriage, goes against the very grain of what many contemporary Muslims consider to be ‘Justice, Kindness, the Common Good and Wisdom’. Consequently, Muslim legal tradition and its textual sources have come to appear hypocritical or, at best, contradictory. This presents those who struggle to reform Muslim family laws with a quandary and a host of questions: what 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 Shariʿa (Qurʾan and hadith) that appear not to treat men and women as equals? Can gender equality and Shariʿa-based laws go together?

These questions are central to the ongoing struggle for an egalitarian construction of family laws in Muslim contexts and have been vigorously debated among Muslims since the late nineteenth century.⁶ Some consider religion to be inherently patriarchal and any engagement with it to be a futile and incorrect strategy;⁷ others argue that, given the linkage between the religious and political dimensions of identity in Muslim contexts, the path to legal equality for women in those contexts necessarily passes through religion.⁸ This chapter aims to explore these questions and address what often remains neglected in this debate: how Muslim women’s struggle for equality is embedded in the intimate links between theology and politics. My central argument has two elements. First, the struggle is at once theological and political, and it is hard and sometimes futile to decide when theology ends and politics begin. Secondly, in the last two decades of the twentieth century a growing confrontation between political Islam and feminism has made the intimate links between theology, law and politics more transparent. New voices and forms of activism have emerged that no longer shy away from engagement with religion. A new discourse, which came to be known as ‘Islamic feminism’, started to challenge the patriarchal interpretations of the Shariʿa from within.

After a brief examination of the notion of gender justice in classical fiqh texts, I sketch twentieth-century developments in the politics of religion, law and gender in Muslim contexts. This is followed by a discussion of two reform texts that negotiate and bridge the chasm – the dissonance – between contemporary notions of justice and gender rights and those informed by classical fiqh rulings, and that lay the groundwork for an egalitarian family law. These are the book Women in the Shariʿa and in Our Society (1930) by Tunisian religious reform thinker al-Tahir al-Haddad, and the article ‘The status of women in Islam: a modernist interpretation’ (1982) by Pakistani reform thinker Fazlur Rahman. I have chosen to focus on these two texts because they belong to two key moments in the Muslim debate and struggle to define the scope of women’s rights in the twentieth century. Al-Haddad’s book appeared in the context of early twentieth-century debates and the early phase of the codification of Muslim family law; Fazlur Rahman’s article was published when political Islam was at its zenith and Islamists, trumpeting the slogan ‘return to Shariʿa’, were dismantling some earlier reforms. Both thinkers met with a great deal of opposition from the clerical establishments in their own countries at the time, but their ideas, which conservative clerics declared to be heretical, proved to be instrumental in shaping later discourses and developments. Al-Tahir al-Haddad’s ideas informed Tunisian family law, which was codified in 1956, and to this day remains the only Muslim code that bans polygamy. Fazlur Rahman developed a methodology and framework that, by the end of the century, facilitated the emergence of feminist scholarship in Islam. I conclude by considering the implication of this scholarship with regard to changing the terms of reference of the debates over Muslim family law reforms.

1.  Men’s authority over women: qiwāma as a legal postulate

At the heart of the unequal construction of gender rights in Muslim legal tradition lies the idea that men have guardianship or qiwāma over women. Verse 4:34 (from which the idea is derived) is commonly understood as mandating men’s authority over women, and is frequently invoked as the main textual evidence in its support. This verse is often the only verse that ordinary Muslims know in relation to family law. It reads:

Men are qawwāmūn (protectors/maintainers) in relation to women, according to what God has favored some over others and according to what they spend from their wealth. Righteous women are qānitāt (obedient) guarding the unseen according to what God has guarded. Those [women] whose nushūz you fear, admonish them, and abandon them in bed, and aḍribuhunna (strike them). If they obey you, do not pursue a strategy against them. Indeed, God is Exalted, Great.⁹

Since the early twentieth century, this verse has been the focus of intense contestation and debate among Muslims, centring on the four terms I have highlighted. There is now a substantial body of literature that attempts to contest and reconstruct the meanings and connotations of these terms as understood and turned into legal rulings by classical jurists.¹⁰ Recent contributions have been most concerned with the last part of the verse, and the issue of domestic violence.¹¹ Neither this concern nor the contestation over the meanings of these terms is new; they occupied the minds of classical Muslim jurists when they inferred from the verse legal rulings regarding the rights and duties of spouses in marriage.¹² But the nature and the tone of the debates are new. Juristic disagreements were not, as now, about the legitimacy or legality of a husband’s right to beat his wife if she defies his authority; they were about the extent and harshness of the beating he should administer. In classical fiqh texts, the validity and inviolability of men’s superiority and authority over women was a given; the verse was understood in this light, and the four key terms were used to define relations between spouses in marriage, and notions of gender justice and equity. As we shall see, all revolved around the first part of the verse and the notion that men are women’s qawwāmūn, protectors and providers.

Let us call this the qiwāma postulate,¹³ which I shall argue is the lynchpin of the whole edifice of the patriarchal model of family in classical fiqh. We see the working of this postulate in all areas of Muslim law relating to gender rights, but its impact is most evident, as I have argued elsewhere, in the laws that classical jurists devised for the regulation of marriage.¹⁴ They defined marriage as a contract (nikāḥ), and patterned it after the contract of sale (bayʿ). The contract renders sexual relations licit between a man and woman, and establishes a set of default rights and obligations for each party, some supported by legal force, others by moral sanction. Those with legal force revolve around the twin themes of sexual access and compensation, and are embodied in two central legal concepts: tamkīn (submission) and nafaqa (maintenance).¹⁵ Tamkīn, obedience or submission, specifically with regard to sexual access, is the husband’s right and thus the wife’s duty; whereas nafaqa, maintenance, specifically shelter, food and clothing, is the wife’s right and the husband’s duty. The wife loses her claim to maintenance if she is in a state of nushūz (disobedience). The husband has the unilateral and extra-judicial right to terminate the contract by ṭalāq or repudiation; a wife cannot terminate the contract without her husband’s consent or the permission of the Islamic judge upon producing a valid reason. There are numerous moral injunctions that could have limited men’s power to terminate marriage; for instance, there are sayings from the Prophet to the effect that ṭalāq is among the most detested of permitted acts, and that when a man pronounces it, God’s throne shakes. Yet classical fiqh made no attempt to restrict a man’s right to ṭalāq. He needs neither grounds nor the consent of his wife.

There were, of course, differences between and within the classical schools over what constituted and what defined the three interrelated concepts – nafaqa, tamkīn and nushūz – but they all shared the same conception of marriage, and the large majority linked a woman’s right to maintenance to her obedience to her husband. The reason for their disagreement, Ibn Rushd tells us, was ‘whether maintenance is a counter-value for (sexual) utilization, or compensation for the fact that she is confined because of her husband, as the case of one absent or sick’.¹⁶ And it was within the parameters of this logic – men provide and women obey – that notions of gender rights and justice acquired their meanings. Cognizant of the inherent tension in such a construction of marriage, and seeking to contain the potential abuse of a husband’s authority, classical jurists narrowed the scope of this authority to the unhampered right to sexual relations with the wife, which in turn limited the scope of her duty to obey to being sexually available, and even here only when it did not interfere with her religious duties (for example, when fasting during Ramadan, or when bleeding during menses or after childbirth). Legally speaking, if we take the fiqh texts at face value, according to some a wife had no obligation to do housework or to care for the children, even to suckle her babies; for these, she was entitled to wages. Likewise, a man’s right to discipline a wife who was in the state of nushūz was severely restricted; he could discipline her, but not inflict harm. For this reason, some jurists recommended that he should ‘beat’ his wife only with a handkerchief or a miswāk, a twig used for cleaning teeth.¹⁷

Whether these rulings corresponded to actual practices of marriage and gender relations is another area of inquiry, one that recent scholarship in Islam has only just started to uncover.¹⁸ What is important to note here is that the qiwāma postulate served as a rationale for other legal disparities – such as men’s rights to polygamy and unilateral repudiation, women’s lesser share in inheritance, or the ban on women being judges or political leaders. That is to say, women cannot occupy positions that entail the exercise of authority in society because they are under their husband’s authority – and are thus not free agents and not able to deliver impartial justice. Similarly, since men provide for their wives, justice requires that they be entitled to a greater share in inheritance. These inequalities in rights were also rationalised and justified by other arguments, based on assumptions about innate, natural differences between the sexes: women are by nature weaker and more emotional, qualities inappropriate in a leader; they are created for childbearing, a function that confines them to the home, which means that men must protect and provide for them.¹⁹

2. The reform and codification of classical fiqh provisions of family law²⁰

In the course of the twentieth century, as nation-states emerged among Muslim populations, classical fiqh conceptions of marriage and family were partially reformed, codified and grafted onto modern legal systems in many Muslim-majority countries.²¹ The best-known exceptions were Turkey and Muslim populations that came under communist rule, which abandoned fiqh in all areas of law, and Saudi Arabia, which preserved classical fiqh as fundamental law and attempted to apply it in all spheres of law. In countries where classical fiqh remained the main source of family law, the impetus and extent of family law reform varied, but, with the exception of Tunisia, which banned polygamy, on the whole the classical fiqh construction of the marital relationship was retained more or less intact. Reforms were introduced from within the framework of Muslim legal tradition, by mixing principles and rulings from different fiqh schools and by procedural devices, without directly challenging the patriarchal construction of marriage in fiqh.²² They centred on increasing the age of marriage, expanding women’s access to judicial divorce and restricting men’s right to polygamy. This involved requiring the state registration of marriage and divorce, or the creation of new courts to deal with marital disputes. The state now had the power to deny legal support to those marriages that were not in compliance with official state-sanctioned procedures.

All these changes transformed relations between Muslim legal tradition, state and social practice. Codes and statute books took the place of fiqh manuals; family law was no longer solely a matter for private scholars – the fuqahāʾ – operating within a particular fiqh school, rather it became the concern of the legislative assembly of a particular nation-state. Confined to the ivory tower of the seminaries, the practitioners of fiqh became increasingly scholastic, defensive and detached from realities on the ground. Patriarchal interpretations of the Shariʿa acquired a different force; 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.

With the rise of Islam as both a spiritual and a political force in the latter part of the twentieth century, Islamist political movements became closely identified with patriarchal notions of gender drawn from classical fiqh. Political Islam had its biggest triumph in 1979, in the popular revolution that brought clerics into power in Iran. This year also saw the dismantling of some of the reforms introduced earlier in the century by the modernist governments – for instance, in Iran and Egypt – and the introduction of the Hudood Ordinances in Pakistan, which extended the ambit of fiqh to certain aspects of criminal law. Yet this was the year when the UN General Assembly adopted CEDAW, which gave gender equality a clear international legal mandate.

The decades that followed saw the concomitant expansion, globally and locally, of two powerful but seemingly opposed frames of reference. On the one hand, the human rights framework and instruments such as CEDAW gave women’s rights activists what they needed most: a point of reference and a language with which to resist and challenge patriarchy. The 1980s saw the expansion of the international women’s movement, and the emergence of NGOs with international funds and transnational links that gave women a voice in policy-making and public debate over the law. On the other hand, Islamist forces – whether in power or in opposition – started to invoke ‘Shariʿa’ in order to dismantle earlier efforts at reforming and/or secularising laws and legal systems. Tapping into popular demands for social justice, they presented this dismantling as ‘Islamisation’, and as the first step in bringing about their vision of a moral and just society.

In other words, the twentieth century witnessed the widening of the chasm between notions of justice and gender rights found in Muslim legal tradition and those that were being adopted internationally. This chasm, this dissonance, was, as we shall see, as much political as epistemological. I now turn to the texts of al-Tahir al-Haddad and Fazlur Rahman, which try to negotiate and bridge the chasm. They appeared at two critical moments in the twentieth-century politics of modernism: the struggle against colonial powers and the challenges posed by political Islam. At both moments, the issue of gender rights and Muslim legal tradition became part of an ideological battle between different forces and factions.

3. Al-Tahir al-Haddad (1899–1935): a lonely reformer

Al-Tahir al-Haddad’s book Our Women in the Shariʿa and Society is part of a considerable nationalist and reformist literature dating to the early twentieth century and the fierce debate on the ‘status of women in Islam’ ignited by the encounter with Western colonial powers.²³ Two genres of texts emerged. The authors of the first more or less reiterated the classical fiqh positions, and confined themselves to enumerating the rights that Islam conferred on women. Texts of the second genre, the most influential of which was Qasim Amin’s The Liberation of Women (1899), offered a critique of fiqh rulings and proposed reforms to realise women’s rights. They called for women’s education, for their participation in society and for unveiling. One subtext in these works was the refutation of the colonial premise that ‘Islam’ was inherently a ‘backward’ religion and denied women their rights; another was the quest for modernisation and the reform of laws and legal systems as part of the project of nation-building. Without women’s education and their participation in society, the modern, independent and prosperous state for which they were struggling could not be achieved.²⁴

Al-Haddad’s book belongs to the second genre, and is not free of the ambivalence that permeated the nationalist/modernist texts of the time, which have rightly been criticised for their patriarchal undertones.²⁵ But it differs from the rest in two respects. First, in his proposals for reform al-Haddad went much further than other twentieth-century reformers, even arguing for equality in inheritance, an issue that became a priority for Muslim women’s movements only in the next century.²⁶ Secondly, al-Haddad provided a framework for rethinking fiqh legal concepts, and offered a definition of marriage that was premised on mutual affection and responsibility. In that sense, it is indeed a feminist text.

Al-Haddad received only a traditional education, first at Qurʾanic school and later at the Great Mosque of Zaytouna, where he studied Islamic sciences.²⁷