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Revisiting Women’s Rights in Islam: ‘Egalitarian Justice’ in Lieu of ‘Deserts-based Justice’

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REVISITING WOMEN’S RIGHTS IN ISLAMc


‘Egalitarian Justice’ in Lieu of ‘Deserts-based Justice’1


Mohsen Kadivar


In traditional Islamic thought women’s rights have been defined on the basis of a ‘deserts-based’ notion of justice (al-ʿadāla al-istiḥqāqiyya), by which individuals are entitled to justice according to their status, abilities and potential. This notion of justice leads to proportional equality, which recognises rights for individuals in proportion to their ‘deserts’. In modern times this notion of justice has encountered enormous problems. Can we reread the Qurʾan and the traditions in the light of an egalitarian notion of justice that is premised on fundamental equality between men and women?


This chapter is an attempt at such a rereading. It is written from the position of an Usuli Shiʿi,2 with the method of ‘ijtihad in foundations’ (al-ijtihād fī al-uṣūl), that is, ijtihād in the theoretical and philosophical foundations of Islamic law. The chapter is based on the following premises: (i) The rulings (aḥkām) on women in the Qurʾan and the traditions (Sunna) strongly defend the principle of justice. (ii) These rulings are explained by arguments and proofs. (iii) Justice is a prior principle to religion, and the definition of justice and justification of the different approaches to it are matters of reason and philosophy. (iv) Some Qurʾanic verses and hadith relating to women are generally based on justice and non-discrimination, others appear (ẓāhir) to be based on a deserts-based notion of justice and proportional equality. (v) Muslim scholars, who (whether exegetists, hadith specialists, theologians, jurists, mystics or philosophers) have been predominantly men, understood and continue to understand justice as deserts-based justice, and equality as proportional equality. (vi) There are undeniable biological and psychological differences between men and women. (vii) The site of discussion is those rulings that grant women, because they are women, greater or lesser rights than men; these rulings are mainly found in the two fields of civil and penal law, so rulings that do not treat men and women differently (those pertaining to worship and commerce and the majority of those relating to matters of belief and ethics) fall outside our discussion.


There are two parts to my thesis in this chapter. First, the notions of egalitarian justice and fundamental equality accord better with the spirit of the Qurʾan and Islamic standards. Secondly, the verses and the hadiths that have been invoked as justifying disparity in men’s and women’s rights are not an obstacle to egalitarian justice and fundamental equality.


The chapter consists of four sections. Section one is a review of the most important rational and textual arguments for legal parity and difference. Section two examines the perspective and arguments of ‘deserts-based justice’. Section three describes those of ‘egalitarian justice’ and ‘fundamental equality’, and explores how they are more in line with the spirit of the Qurʾan and Islamic standards. Finally, section four takes the Qurʾanic verses and hadiths invoked to justify legal differences between men and women, and rereads them in the light of egalitarian justice.


1. The most important textual and rational arguments for legal equality and inequality


In the Qurʾan and traditions we encounter two types of argument regarding women’s rights. The first type treats men and women as equal, entitled to the same human rights without any legal difference. The second suggests that men are superior to women, thus they enjoy more rights but at the same time are charged with protecting women. There are rational arguments, independent of the texts, for the essential goodness of justice and the essential badness of injustice and discrimination. Before engaging in any kind of interpretation, let us examine the most important of these verses and hadiths, and elucidate their rational arguments.


a. Qurʾanic arguments for the legal equality of men and women


The verses indicating equality can be divided into five groups, implying: (i) equality in creation; (ii) equality in the hereafter; (iii) equality in rights and duties; (iv) equality in rewards and punishments in this world and the other; and (v) equality in married life.


(i) This group presents men and women as created from the same essence, and rejects gender-based superiority. Gender does not produce human dignity and closeness to God; how can it produce superiority?


O mankind! We created you from a single (pair) of a male and a female, And made you into nations and tribes, that ye may know each other. Verily the most honoured of you in the sight of Allah is the most righteous of you (49:13).3


Gender, tribe, race, colour, wealth, status and power do not produce superiority; God-consciousness (taqwā) is the measure of dignity and closeness to God. All people, male or female, are descended from a single man and woman (4:1).


(ii) In the afterlife, God treats men and women in the same way. Gender plays no role in salvation, which is determined by belief and righteous action.


Whoever works righteousness, man or woman, and has faith, verily, to him will We give a new life and life that is good and pure, and We will bestow on such their rewards according to the best of their actions (16:97).4


The Qurʾan names ten categories of believing men and women who will receive forgiveness and great reward:


For believing men and women, for devout men and women, for true men and women, for men and women who are patient and constant, for men and women who humble themselves, for men and women who fast (and deny themselves), for men and women who guard their chastity, for men and women who engage in Allah’s praise, for them has Allah prepared forgiveness and great reward (33:35).


Here too gender difference has no place.


(iii) Equality in rights and obligations:


The believers, men and women, are protectors, one of another: they enjoin what is just, and forbid what is evil; they observe regular prayers, practice regular charity, and obey Allah and His messenger. On them Allah pours His mercy (9:71).


This verse recognises that believing men and women have a responsibility to protect each other. The equality of men and women in the important duties of ‘enjoining good and forbidding evil’ and mutual protection leaves no doubt; if women lacked the essential ability, they would never be charged with such responsibilities. This verse provides the basis for understanding the second type of verses (inequality).


(iv) Equality in rewards and punishments in this world and the other. Qurʾan 48:5, 6 and 25, and 57:12–13 treat men and women equally in regard to entitlement to reward or punishment. Likewise, Qurʾan 5:38 and 24:2, 26 and 31 speak of identical worldly punishments for male and female thieves, fornicators and wrongdoers.


(v) Equality in marital life. Qurʾan 2:187 gives a picture of equal shares for spouses in their shared life: ‘They are your garments and you are their garments.’ This picture is repeated in 30:21: the creation of men and women is among the signs of God, and the presence of each is a source of tranquillity, love and mercy for the other. Should not this logical foundation be the basis for understanding other Qurʾanic verses relating to the family?


b. Rational arguments for justice in the realm of women’s rights


Can reason on its own (al-ʿaql al-mustaqill) give a ruling about women’s rights? Let us review some preliminary points here. First, certain acts are either good or evil inherently, that is to say, without a ruling from the Lawgiver. This is the basic claim of the Muslim rationalists (People of Justice, that is, the Shiʿa and the Muʿtazili). Secondly, reason has the capacity, independent of scripture, to decide whether such acts are good or evil; this is the main claim of the Shiʿa Usulis as opposed to the Shiʿa Akhbaris. Thirdly, most Usulis claim that if reason considers something good, religion declares it mandatory, and if reason finds it bad, religion declares it forbidden. Fourthly, sharʿī rulings that are based on the principle of correlation (between reason and Shariʿa) are valid (ḥujja), in the sense that when we are absolutely sure that the Lawgiver has not forbidden it, our rational ruling (based on the principle of correlation) can be counted as a sharʿī ruling. This is the claim of most Usulis as opposed to those who reject the ruling of reason.


Among these four preliminary points, the first and last are important; that is to say, we can settle the question (i.e. whether reason can produce a sharʿī ruling independent of texts), if we can demonstrate the validity of the first point, and if the conditions for the fourth point are present. Now, we can restate the first point as follows: rulings related to women’s rights are in the realm of reason. Legal justice in regard to men and women is a good thing. Reasonable people, as they are reasonable, approve of legal justice. Legal justice is one of the praised ideas and common premises (al-ārāʾ al-maḥmūda wa al-qaḍāyā al-mashhūra). Reasonable people, as they are reasonable, praise those who implement justice, and blame those who neglect it.


Practical reason rules that legal justice is good (and injustice and legal discrimination are bad), because it is consistent with the human soul, which recognises the public benefit (nafʾ ʾamm) in legal justice (and the harm caused by injustice and discrimination). People seek the public good (maṣlaḥa ʿamm) that comes from justice, and resist the corruption stemming from injustice and legal discrimination. People recognise that this is a public, not a personal matter; indeed that it is a universal matter, of interest (maṣlaḥa) to the whole human species. This interest is necessary for the protection of order in human society and for the survival of the human species. The basis of this recognition is the rational faculty. So all reasonable people, as they are reasonable, praise it. By the same token, legal discrimination is a great cause of corruption (mafsada) to humanity, therefore all reasonable people disapprove of it, finding it unwholesome and evil.


When reasonable people, as they are reasonable, collectively agree that justice is good and deserves to be praised, and that legal discrimination is evil and deserves to be blamed, on the grounds that they are, respectively, beneficial and harmful to the public interest, then Shiʿi Usulis will consider it to be a rational ruling.5 Legal justice reflects the perfection of human societies, and legal discrimination the imperfection of them. Reason perceives such perfection and imperfection in a general way: perfection is in the interest of humankind while imperfection leads to injury. People of reason, as they are reasonable, make this judgement in order to obtain beneficial consequences and to reject harmful consequences for humanity. The Lawgiver necessarily concurs with reasonable people, because it is a basic principle of the ‘People of Justice’6 that the Lawgiver is reasonable and, in fact, is the head of all reasonable people.


Legal justice is a cause of goodness, and injustice and legal discrimination are causes of evil. On this basis, justice and discrimination are essentially good and evil respectively. Reasonable people praise those who stand for justice and blame those who stand for injustice and discrimination. The goodness of justice and the evil of injustice are absolutes that transcend questions of expediency and usefulness.7


c. Textual arguments for the legal superiority of men over women


The most important textual arguments for men’s superiority over women can be found in four verses from the Qurʾan and two hadiths from the Prophet Muhammad and Imam ʿAli.


And women shall have rights similar to men to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. (2:228)


And in no wise covet those things in which Allah has bestowed His gifts more freely on some of you than on others; to men is allocated what they earn, and to women what they earn; but ask Allah of His bounty. (4:32)


Men are the protectors and maintainers of women because Allah has given the one more than the other, and because they support them from their means. (4:34)


Is then one brought up among trinkets, and unable to give a clear account in a dispute (to be associated with Allah)? (43:18)


A sound hadith from the Bukhari collection:


When I was in doubt whether the supporters of ʿAʾisha were in the right and whether or not I should join them in their fight, God helped me by a saying from the Prophet and saved me from falling into the trap. When the news was brought to him that the daughter of the Persian king Kasra had assumed the throne, the Prophet said: People who entrust their affairs to women will never know prosperity and find salvation.8


From Imam ʿAli’s sermon about women’s defectiveness after the Battle of the Camel:


O people, women are inferior to men in faith, in wealth and in reason. The proof of their deficiency in faith is that they do not pray or fast during their menses, the proof of their deficiency in reason is that the testimony of two of them equals that of one man, and the proof of their deficiency in wealth is that their share in inheritance is half of that of men. So keep away from bad women and be careful with the good ones, and do not give in to them when they are good, so that they do not expect you to obey them when they are bad.9


2. Women’s rights from the perspective of deserts-based justice


In this section I first present women’s rights in the words of the chief proponents of deserts-based justice, then narrate the rational and textual arguments they put forward.


a. Deserts-based justice and women’s rights in the discourse of contemporary thinkers


ʿAllameh Seyyed Mohammad Hossein Tabatabaʾi (d. 1981) clearly sets out his perspective on women’s rights during his interpretation of the above verses. Given his high level of learning and his nearness to us in time, he is one of the most important exponents of deserts-based justice.


In the following paragraphs I summarise his views.


Islam upholds equality between men and women in organising their lives, but woman has been created with two distinctive traits. One is that woman is like soil for the cultivation and growth of the human species; therefore, the survival of the human species depends on women. For this reason, there are rulings for women like those for agricultural land; hence, they are distinct from men. The second trait is that, besides their physical delicacy, women have been endowed with mental weakness, which has a bearing on their social status and duties.


Men and women can have two kinds of superiority. One is specific to men (their share of inheritance) and women (their entitlement to maintenance); the other is not specific to men or women but is based on behaviour and attributes that bestow superiority, such as faith, knowledge, piety (taqwā), and other virtues praised by religion.


All rulings related to worship and social rights treat men and women the same, except in matters that, by nature, require difference. The most important of these are: women cannot lead in political or judicial affairs; in war, they are not required to engage in combat, though medical aid and nursing the wounded is another matter; women’s inheritance share is half of that of men; for women hijab and covering the site of ornaments (zīna) is mandatory; women are required to submit to their husbands in sexual matters. A woman is compensated for her loss in these areas by her lifelong right to maintenance by her father or husband. The husband is obligated to protect his wife as best he can. The right to raise and care for the children rests with the woman. God has mandated these in order to protect a woman’s life, her (sexual) honour and even her reputation, and she is excused prayer and fasting during her menses. Women must be treated leniently in all conditions.


A woman need not seek knowledge apart from that pertaining to major religious beliefs and practical obligations (i.e. laws regulating worship and social affairs), and she has no other duty than that of obeying her husband and meeting his sexual desires. She is not required to go out to work, to manage the family or to study, though all these activities are advantageous, and not forbidden to women.


According to Tabatabaʾi, equality is a natural prerequisite of social rights and duties, but equality that stems from social justice does not require that all social ranks be distributed among all members of society. The prerequisite of social justice that can be interpreted as equality is for all to have their proper rights. Thus, equality between individuals and classes means only that every person should get what they are entitled to, without conflict between these entitlements. Qurʾan 2:228 stresses equality in men’s and women’s rights and yet admits the natural differences between them.


Women are like men in being endowed with thought, free will, authority and control in all areas of personal and social life (except those mentioned), yet in these areas they differ from men in certain respects. Biologically, the average woman is inferior to the average man in brainpower, heart, veins and nerves, let alone height and weight. For this reason, women’s bodies are softer and weaker and men’s rougher and physically stronger; and women have gentler feelings such as love and tenderness and a greater interest in beauty and self-adornment, while men are more rational than women. Thus, women’s life is emotional and men’s life is rational.

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