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Rethinking Men’s Authority over Women: Qiwāma, Wilāya and their Underlying Assumptions



Qiwāma, Wilāya and their Underlying Assumptions

Hassan Yousefi Eshkevari

In Islamic culture and legal tradition, the men in the family (father, husband and, in some instances, brother or even grandfather) have a kind of authority or guardianship right over women. This view is supported by some Qurʾanic verses and sayings of the Prophet and other religious authorities, which will be referred to later. Such a notion has prevailed, in different manifestations, throughout history, in all religions and in all societies, and it still exists, even in more progressive and developed countries; therefore, it is necessary to explore its sociological, historical and epistemological origins in religion and in other areas. Given the interconnection between systems of thought, beliefs, rituals and cultures, an investigation of their origins and analysis of the reasons for their existence will help us to understand this patriarchal view, and the legal tradition that grants men authority over women.

1. The epistemological assumptions of male authority

The assumptions underlying the idea that men have authority and guardianship over women are numerous and varied; here I will only list, in the briefest possible way, the three salient ones.

1. Men are created superior to women and women are evil, possess an evil essence, or can create evil, and must therefore be controlled. Such a belief is reflected in the literature and proverbs of varied peoples and nations. It is both supported by, and the product of, certain assumptions, notably with regard to women’s weakness in reason, the strength of their emotions, their sexuality and its power to corrupt men, and some features of their sexual physiology, such as menses and childbirth, which involve blood and are considered to be polluting.1

2. The patriarchal family is the basic unit of society, and must be protected for its survival. The family, which at first was natural and inevitable and was formed due to necessity, has, in the course of history, gone through many transformations, with the changing conditions of human social life and interaction with many direct and indirect factors. In these changes, assumptions like those discussed here played a role in defining the purpose and philosophy of the family, in developing an intricate set of rules and laws to regulate relations within it, and eventually in giving the institution and its continuation an aura of sanctity. These fundamental beliefs and teachings naturally and openly led to the emergence of a family with a hierarchical structure, with the man in charge, as provider and protector. In Islamic legal tradition this becomes the man’s right of guardianship (wilāya) over the family. The principle is that the family is the basic unity of society and must be protected: how this principle is interpreted can have an important role in defining the position of women and their rights in relation to men (father, husband, brother).

3. Aristotelian justice. Although the Aristotelian notion of proportional justice is no longer as significant as it was with respect to women’s rights and status in the family, its influence on philosophers and religious and social thinkers in the last two millennia has been immense. Aristotle’s ideas and teachings have had an impact on many philosophical, political, social and religious branches of knowledge, including those developed by Muslims. We know that Aristotle believed in the doctrine of essentialism, according to which things and beings have essences that are unchangeable. This doctrine influenced Greek, Christian and Islamic philosophies throughout the Middle Ages. Humans, Aristotle considered, have an unchangeable essence, but are created in different racial and social groups for the fulfilment of certain duties in human society. He believed in a hierarchal, caste-like social order in which slavery was a natural part; humans are born to be masters or slaves. In this framework, justice, which for Aristotle was of great importance, was also interpreted in an essentialist way. That is to say, ‘justice is to maintain everything in its proper place’, and since the place of everything and everybody was fixed and essential, justice meant keeping that place, and treating people accordingly. Injustice meant going against the essence and not granting individuals the rights they were due. According to such notions of humanity and justice, a slave rebelling against a master or a woman rejecting a man’s authority (be it her father’s, husband’s or even her brother’s) threatens the social order and family organisation, and is thus behaving unjustly and is subject to punishment.

These epistemological assumptions, shaped and consolidated over several millennia, became the basis of an authoritarian ethical and legal system that is premised on the notion that, if women fail to obey men in the family and society, justice will be compromised, as both family organisation and social order will disintegrate. It was in such a context that the notions of wilāya and qiwāma found their proper meaning in Islamic language and legal thought, and became the backdrop to a set of rulings that required women to submit to their husbands and to ask their permission for many things, including leaving the house. Numerous restrictive legal rulings in fiqh and religious-based ethics, such as the requirement for women to cover their entire body and not to display their beauties (tabarrūj),2 are premised on such epistemological notions. Other rulings allow polygamy for men; grant the guardianship of minor children to the father, or even the grandfather; prevent women from being judges or political leaders; and ordain different inheritance shares for males and females.

These assumptions, thanks to constant reiteration, now appear to be common sense. But if, for whatever reason, we question them or interpret them differently, it is evident that we must completely transform the laws derived from them.

2. Alternative assumptions

If we admit that (a) the above assumptions play a significant role in determining relations between men and women, (b) they are, in turn, the product of historical and legal legacies, and (c) we must transform the situation in the interest of women and the health of society, then we must modify the assumptions, or at least interpret them in a more humane and beneficial way. In my opinion these assumptions are flawed. In what follows I shall refute them and introduce other principles (in particular from within Islamic legal thought) to create a way of rethinking the issue of women’s rights in Islamic legal tradition.

1. Men and women are created essentially equal. Fortunately there is little need to provide justification for this assertion, as there is no sound argument or textual proof for the absence of essential equality between men and women. On the contrary, in particular in Islam, there is ample textual and rational evidence to support the idea that the two human sexes are essentially equal. This is so self-evident that the burden of proof is on those who deny it. A number of Qurʾanic verses clearly say ‘we have created you from the same nafs (soul)’ (4:1, 6:98, 7:189, 31:28, 39:6). It is noteworthy that there is an entire chapter with the title ‘Women’ (Al-Nisāʾ), which starts with this sentence, and there are a number of hadith to support this. In Qurʾanic ontology, no human is distinct from other humans; neither race, nor colour, nor status brings distinction, as clearly stated in a famous verse (49:13). Salvation, as the ultimate objective of religion, depends only on righteousness (taqwā) and righteous action (ʿamal ṣāliḥ); men and women have the same potential and qualifications for salvation (4:124), and are addressed as male (mūʾminūn) and female (mūʾmināt) (e.g. 9:71–2). This assertion is endorsed by what humans have gained through knowledge and experience; among these important gains are Articles 1 and 2 of the Universal Declaration of Human Rights (adopted by the UN in 1948) that fortunately have been ratified by almost all peoples and nations, making this a universal consensus.

2. Women are not inherently weak in reason or ruled by their emotions. If we pay attention to the arguments of those who are against women participating in political and social matters, serving as judges, or even having the right to the custody of their own children, we see that they are generally based on the proposition that women are weak in reason and are controlled by emotions; thus they do not have the required capacity for such tasks, which can only be performed by men, who are rational and not emotional.

The fact is, such a belief is a historical construct, the product of the age of men’s domination and the fading of women’s role in society. Such a historical mindset also influenced the religious sources and traditions after the Prophet’s time. Many traditions were fabricated and then attributed to the Prophet or other religious personalities,3 as is attested by rigorous research on the history and genealogy of such traditions. In recent years, with the expansion of Western natural sciences in Muslim countries, some base their views about women’s inferior rationality on arguments drawn from science; for instance, they say that women are inferior to men because their brains weigh less than men’s, or because they are physically weaker than men. However, there is no rational or scientific basis for assuming women to be mentally inferior; rather, in the course of history, women generally had fewer opportunities than men for intellectual and rational growth. This, in turn, was the product of men’s historical domination, which, in practice, gave fewer opportunities to women, who were secluded and marginalised in social and political life. It has nothing to do with men’s or women’s natural abilities. From ‘what is’, an ideological and eternal ‘ought’ cannot be derived. Experience (also in our time) shows that once women have enough room to grow, to become aware, to acquire the knowledge and skill to assume responsibility, they have proven their capacity to do so.

This does not mean that men and women are identical in creation and have exactly the same attributes. Certainly their bodies, as sexual and physical structures, are different, and these differences inevitability lead to certain differences in individual, collective or sexual behaviour. But the point is that men and women are created as ‘humans’ and are equal in humanity (i.e. none is more human than the other); more importantly, natural and genetic differences (even if it were true that men and women differ in their capacity for reason or emotion) are not the basis of the rights of men and women or the family organisation.

3. The family is a joint enterprise. The question of the ‘family’ is a sensitive and important one. There is no doubt that it emerged as an institution and went through various forms and fundamental changes over time. The concept of the family as we know it, and laws governing relations among its members, have been through many changes and, as already stated, are the product of socio-historical processes. But they are premised on certain assumptions that are no longer valid. Therefore, we now need to rethink these assumptions, to correct the theoretical and practical errors in them, and to come up with a new definition and a new set of rulings.

If we take into account the primary principles of Islam (the universal and general principles taken from the Qurʾan and valid Sunna), there is no doubt that this religion has stressed the importance of the family and its integrity. Islam brought important transformations to family organisation and customs among the Arabs in the Hijaz. On the one hand, it reformed and restricted some areas of laxity and promiscuity in relations between men and women; on the other, it removed some restrictions. On the whole, it enhanced women’s position in the family and society, and gave them more rights.

We are now at a very different historical juncture, but, arguably, there is still a need to preserve the family as the basic unit of society and the prime locus of socialisation and education. We can even claim that the ‘Islamic family’ can provide a good model; but what we cannot provide is a reasonable Islamic defence for those archaic traditions and rulings whose time is past. This is the case because these rulings – whether they are Shariʿa-based (aḥkām sharʿī) or attributed to the Shariʿa – are compatible with neither our theological and epistemological assumptions nor contemporary notions of justice. Justice, which is one of the fundamental principles of Islam, cannot have a fixed and unchanging meaning and expression. In seventh-century Arabia, family organisation had a pyramid-like structure, with the man as the head; he had authority over women and children. Family members were naturally assigned rights in accordance with the patriarchal ethos on which the social order was based. This was the case in most societies then, and continued to be so more or less everywhere.

Since we need laws regulating the family and relations among its members, I suggest the following. That is, we admit, as a general presumption and a religious principle, that the realm of the family is a joint enterprise (mulk mushāʿ) in which no one – husband, wife, children or others – is distinct from the others in essence or natural rights. In effect, the rights of each member should be decided according to what is accepted as good practice in our time and cumulative human reasoning (which includes the joint interests of husband and wife as the two main elements of the family). These rights should also be consistent with a definition of justice that is both local and contemporary. In the Qurʾan, many social and family matters are referred to maʿrūf, which in Qurʾanic language denotes the best accepted practices of the time (ʿurf al-zamān); these are not necessarily covered by religious law.

The intention is not to elevate the best practice of the time, but to suggest that laws and social systems in different human societies carry weight because they represent the sum of collective knowledge and accumulated experience of successive generations. For this reason, they are not only less prone to error than the impulsive ideas of an individual, but provide a better basis for continuity, reform and gradual change in society. There is no other way to bring about change of any kind or extent than to build on the customs and practices of the time. This is what all the prophets did. This kind of appeal to tradition or ʿurf does not, of course, mean the blind following of, or submission to, ancestral traditions; the Qurʾan has given numerous interdictions of ignorant imitation of past traditions. However, reflecting on the causes of the revelation of these verses indicates that the Qurʾanic interdictions largely related to the realm of dogma, tawḥīd (the unity of God) and polytheism. A large majority of religious laws are in fact imḍāʾī (endorsed) – those that endorse already existing practices. In short, what we have in mind by appealing to ʿurf is based on four elements: (1) awareness of ʿurf (etymologically ʿurf means ‘the known’); (2) critique of ʿurf; (3) a rational approach to ʿurf; and (4) a search for better alternatives. But we should not forget that this is an ongoing and fluid process; therefore, in the course of time maʿrūf practices are transformed, and what was commended and optional (mamdūḥ wa mukhtār) can become the opposite: abhorred and proscribed (madhmūm wa munkar).

In a religious society, laws and practices that can be defended in the name of religion can also be part of socially accepted customs. In practice, of course, a division of labour and responsibilities in the family is unavoidable, but what is important is that, in the theory of the family as a joint enterprise, it is the collective logic and custom of the time that determines rights within the family, not a set of fixed and immutable laws.

4. No one should dominate another. If we go back in history, we clearly see that the phenomenon of patriarchy (like other types of supremacy) and the notion of men’s authority over women stem from a crucial belief that we now call the ‘right of dominion’ (haqq-e solteh). The belief that certain persons, groups, races or families are inherently superior to others, was part of common sense in the past; thus men’s ‘right of dominion’ and authority over women was presumed to be natural and common sense. But if we reject this presumption as unnatural, and start from the notion that no individual or group should dominate another, then we prevent the emergence of any social or family organisation based on the notion of the intrinsic superiority of one person over the other. In fact, such a notion was clearly stated and stressed in the Abrahamic and monotheist religions. In Islamic thought any submission apart from submission to God is a heresy. If we take into consideration numerous Qurʾanic verses and hadith, and the whole logic of the principle of tawḥīd (unicity, monotheism), negation of any type of domination becomes an undeniable religious tenet. The same sources also indicate that the meaning of submission to God is not merely an abstract theological notion, but is manifested in concrete, social affairs.

How are we to understand notions such as wilāya and qiwāma in a way that is compatible with the principle of tawḥīd? If we look at the kinds of family structure and relations between men and women in Muslim cultures and societies, we see that at least some of the laws that are attributed to God and the practice of the Prophet, in effect require the submission of one human being to another; they require a woman to submit to her husband’s desires. In Islamic legal discourse a woman is considered as property that can be possessed and occupied; terms such as tamlīk (possession) and tamattuʿ (enjoyment) in the marriage formula (ʿaqd), and taṣarruf (conquest) in referring to consummation, speak of an androcentric mindset in which a woman is the object of male pleasure.

5. Women enjoy economic autonomy.

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