Conclusion

The egalitarian position on women’s rights and roles, coming from within an Islamic frame­work, has yet to make its impact by rectifying the inequalities inherent in orthodox in­terpretations of Shari‘ah, and by eliminating social and cultural practices that oppress and discriminate against women in Muslim societies.

I end with two observations. First, the very existence of the debate, and the growing lit­erature on ‘women in Islam’ that has emerged since the early years of the 20th century, are signs of the passing of an era. Available in a variety of languages (and much of it now on the internet) and ranging from sound scholarship to outright polemics, this literature displays different positions and different gender perspectives, from those who endorse the classical fiqh rules, to those who seek their modification in the idea of ‘complementarity of rights’, to those who advocate gender equality on all fronts. Irrespective of their position and gender perspective, all contributors to this literature agree that ‘Islam honours women’s rights’, and that justice and fairness are integral to the Shari ‘ah; they disagree on what these rights are, what constitutes justice for women, and how to realize it within an Islamic framework. The intensity of the debate, and the diametrically opposed positions taken, are indications of a paradigm shift in thinking about gender rights, Islamic law and politics. We become aware of the old paradigm only when the shift has already taken place, when the old rationale and logic, previously undisputed, lose their power to convince and cannot be defended on ethical grounds. Feminist voices and scholarship in Islam herald the coming of an egalitarian legal paradigm that is still in the making.

Second, legal systems and theories are embedded in the cultural, political and social con­texts in which they exist and operate. The old fiqh paradigm, with its strong patriarchal ethos, as well as the new feminist readings of the Shariah, should be understood in this complex double image, as both expressing and shaping socio-legal norms and practices. It is important to remember that legal theory or jurisprudence develops in interaction with social practices, political, economic and ideological forces and people’s experience and expectations. In other words, most often law follows or reflects practice; that is to say, when social reality changes, then social practice will effect a change in the law. Islamic legal tradition is no exception — as attested by the way both legal systems and women’s lives and social experiences have been transformed in the course of the last century, and in the new one by the feminist challenge from within to patriarchal interpretations of the Shari ‘ah.

Notes

1 This chapter draws on and expands my arguments in Ziba Mir-Hosseini, ‘The Construction of Gender in Islamic Legal Thought and Strategies for Reform’, Hawwa 1(1) (2003): 1—28; ‘Towards Gender Equality: Muslim Family Law and the Shari "a, in Wanted: Equality and Justice in Muslim Family Law, ed. Zainah Anwar (Kuala Lumpur: Sisters in Islam, 2009), http://www.musawah.org/ sites/default/files/Wanted-ZMH-EN.pdf. My warmest gratitude goes to Richard Tapper for his support in the process of writing.

2 Such a tension is present in other scriptural religions, as revealed by feminist scholarship. See, for example, Rosemary Radford Ruether, Sexism and God-Talk: Toward a Feminist Theology* 2nd edn (Boston, MA: Beacon Press, 1993) for Christianity; and Susannah Herschel (ed.), On Being a Jewish Feminist: A Reader, 2nd edn (New York: Schocken Books, 2005) for Judaism.

3 By classical fiqh texts I intend those produced before the late 19th century.

4 For such a discussion, see Kecia Ali, Marriage and Slavery in Early Islam (Cambridge, MA: Harvard University Press, 2010) and Yossef Rapoport, Marriage, Money and Divorce in Medieval Islamic Society (Cambridge: Cambridge University Press, 2005).

5 See, for instance, Amira El Azhary Sonbol (ed.), Women, Family and Divorce Laws in Islamic History (Syracuse, NY: Syracuse University Press, 1996); Judith Tucker, In the House of Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 2000); Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (Oxford: Oxford University Press, 2011).

6 For a concise discussion of the terms of the marriage contract in classical fiqh texts, see Kecia Ali, ‘Marriage in Classical Islamic Jurisprudence: A Survey of Doctrines’, in The Islamic Marriage Con­tract: Case Studies in Islamic Family Law, ed. Asifa Quraishi and Frank E. Vogel (Cambridge, MA: Harvard University Press, 2008), 11-45.

7 Nushuz literally means ‘rebellion’ and it implies the abandonment of marital duties. Despite the fact that fiqh sources acknowledged that such abandonment can take place on the part of both spouses, they use the term ndshiza (rebellious) only in the feminine form and in relation to maintenance rights; see Kecia Ali, ‘Religious Practices: Obedience and Disobedience in Islamic Discourses’, in Encyclopedia of Women and Islamic Cultures, vol. 5, ed. Suad Joseph (Leiden: Brill, 2007), 309-13.

8 For this form of marriage, see Shahla Haeri, Law of Desire: Temporary Marriage in Iran (London: I. B. Tauris, 1989).

9 Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven, CT: Yale University Press, 1992), 144-68.

10 Many terms commonly used today in different countries for ‘the veil', such as hijab, parda (‘purdah’), chador, burqa, are not found in classical fiqh texts.

11 For codification, see James Norman Anderson, Law Reforms in the Muslim World (London: Athlone, 1976); for reforms, see Fazlur Rahman, ‘A Survey of Modernization of Muslim Family Law’, Inter­national Journal of Middle East Studies 11 (1980): 451-65.

12 For a discussion of such writings in the Arab world, see Yvonne Yazbeck Haddad, ‘Islam and Gen­der: Dilemmas in the Changing Arab World’, in Islam, Gender and Social Change, ed.

13 The 1956 Tunisian and the 2004 Moroccan family codes come close.

14 In this respect, the work of thinkers such as Khaled Abou El Fadl, Nasr Hamid Abu-Zayd, Moham­mad Arkoun, Mohammad Iqbal, Mohammad Khalid Masud, Mohammad Mojtahed-Shabestari, Fa- zlur Rahman, Tariq Ramadan, Abdolkarim Soroush and Amina Wadud are of immense importance and relevance. For introductions and samples of the work of Muslim reform thinkers, see Charles Kurzman (ed.), Liberal Islam: A Sourcebook (Oxford: Oxford University Press, 1998) and Katajun Amirpur, New Thinking in Islam: The Jihad for Freedom, Democracy and Women’s Rights (London: Gingko Library, 2015); for a critical historical analysis, see Nasr Hamid Abu-Zayd, Reformation of Islamic Thought: A Critical Historical Analysis (Amsterdam: Amsterdam University Press, 2006).

15 See, for instance, Aziza Al-Hibri, ‘A Study of Islamic Herstory: How did We Get into this Mess’, in Islam and Women, Special issue of Women’s Studies International Forum 5(2) (1982): 207-19; Riffat Hassan, ‘Equal before Allah? Woman-man Equality in the Islamic Tradition’, Harvard Divinity Bulle­tin 7(2) (Jan-May 1987), http://www.globalwebpost.com/farooqm/study_res/islam/gender/equal_ riffat.html (accessed 1 January 2014); Fatima Mernissi, Women and Islam: An Historical and Theological Enquiry, trans.

16 For recent assessments of this literature, see Omaima Abou-Bakr (ed.), Feminist and Islamic Perspec­tives: New Horizons of Knowledge and Reform (Cairo: Women and Memory Forum with the Danish- Egyptian Dialogue Institute and the Danish Center for Research on Women and Gender, 2013); Fatima Seedat, ‘When Islam and Feminism Converge’, The Muslim World 103(3) (2013): 404-20; Marcia Hermansen, ‘New Voices of Women Theologians’, in Muslima Theology: Voices of Muslim Women Theologians, ed. Ednan Aslan, Elif Medeni and Marcia Hermansen (Frankfurt-am-Main: Peter Lang, 2013), 11-34; Adis Duderija, ‘Toward a Scriptural Hermeneutics of Islamic Feminism’, Journal of Feminist Studies in Religion 31(2) (2015): 45-64.

17 Some argue that the advent of Islam weakened the patriarchal structures of Arabian society, oth­ers that it reinforced them. The latter also maintain that, before the advent of Islam, society was undergoing a transition from matrilineal to patrilineal descent, that Islam facilitated this by giving patriarchy the seal of approval, and that the Qur’anic injunctions on marriage, divorce, inheritance and whatever relates to women both reflect and affirm such a transition. For concise accounts of the debate, see Jane Smith, ‘Women, Religion and Change in Early Islam', in Women, Religion and Social Change, ed. Yvonne Yazbeck Haddad and Ellison Banks Findly (Albany, NY: SUNY Press, 1985), 19—35; Denise Spellberg, ‘Political Action and Public Example: 'A’isha and the Battle of the Camel', in Women in Middle Eastern History: Shifting Boundaries in Sex and Gender, ed.

18 Women remained active in transmitting religious knowledge, but their activities were limited to the informal arena of homes and mosques and their status as jurists was not officially recognized, as Abou-Bakr, ‘Feminist and Islamic Perspectives', and Asma Sayeed, Women and the Transmission of Religious Knowledge in Islam (Cambridge: Cambridge University Press, 2013) show.

19 Collectif 95 Maghreb-Egalite, Guide to Equality in the Family in the Maghreb. Women's Learning Partnership for Rights, Development and Peace, 2005, http://learningpartnership.org/guide-to- equality (accessed 24 July 2018).

20 Zainah Anwar (ed.), Wanted: Equality and Justice in the Muslim Family (Kuala Lumpur: Sisters in Islam, 2009).

21 See Framework for Action, available in five languages, http://www.musawah.org/about-musawah/ framework-action (accessed 24 July 2018).

22 The project built on an earlier one, ‘New Directions in Islamic Thought', hosted by the Oslo Coalition for Freedom of Religion or Belief, in which some of us were involved. See Ziba Mir- Hosseini, Kari Vogt, Lena Larsen and Christian Moe (eds), Gender Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Tradition (London: I. B. Tauris, 2013).

23 Kecia Ali, ‘Muslim Sexual Ethics: Understanding a Difficult Verse, Qur’an 4:34', http://www. brandeis.edu/projects/fse/muslim/mus-essays/mus-ess-diffverse.html (accessed 1 January 2014).

24 Masaji Chiba (ed.), Asian Indigenous Law in Interaction with Received Law (London and New York: Kegan Paul International, 1986).

25 Qawwamun appears in two other verses (4:135 and 5:8), where it has a very different, positive and gender-inclusive meaning. See Asma Lamrabet, ‘An Egalitarian Reading of the Concepts of Khal- ifah, Wilayah and Qiwamah', in Men in Charge? Rethinking Authority in Muslim Legal Tradition, ed. Ziba Mir-Hosseini, Mulki Al-Sharmani and Jana Rumminger (London: Oneworld, 2015), 65-87.

26 Wildya appears in Verse 18:44, where it refers to God's protection of humans. However, words de­rived from it, such as wali, appear in many verses as an attribute of God or to describe human beings in particular contexts and stories in the Qur’an. More importantly, none of the verses on which the jurists based the doctrine of wilad ya in regard to marriage guardianship (2:221, 2:232, 2:234, 2:237, 4:2, 4:3, 4:6, 4:25, 24:32, 60:10, 65:4) use the term wali or wiladya; see Mohammad Khalid Masud, ‘Gender Equality and the Doctrine of Wilaya', in Mir-Hosseini et al. (eds), Gender Equality in Mus­lim Family Law, 132-3.

27 Mir-Hosseini et al. (eds), Men in Charge?

28 Joan Scott, ‘Deconstructing Equality-versus-Difference: OR, the Uses of Poststructuralist Theory for Feminism', Feminist Studies 14(1) (1998): 33-50.

29 For instance, Sandra Fredman, ‘Providing Equality: Substantive Equality and the Positive Duty to Provide', South African Journal of Human Rights 21 (2005): 163-90; Ratna Kapur, ‘Unveiling Equal­ity: Disciplining the ‘Other' Woman Through the Human Rights Discourse', in Islamic Law and International Human Rights Law, ed. Anver M. Emon, Mark S. Ellis and Benjamin Glahn (Oxford: Oxford University Press, 2012), 265-90.

Selected bibliography and further reading

Abou-Bakr, Omaima (ed.). Feminist and Islamic Perspectives: New Horizons of Knowledge and Reform (Cairo: Women and Memory Forum with the Danish-Egyptian Dialogue Institute and the Danish Center for Research on Women and Gender, 2013).

Abou El Fadl, Khaled. Speaking in God's Name: Islamic Law, Authority and Women (Oxford: Oneworld, 2001).

Al-Hibri, Aziza. ‘A Study of Islamic Herstory: How Did We Get into this Mess'. In Islam and Women, Special issue of Women's Studies International Forum 5(2) (1982): 207-19.

Ali, Kecia. Sexual Ethics and Islam: Feminist Reflections on Quran, Hadith and Jurisprudence (Oxford: Oneworld, rev. edn, 2016).

Barlas, Asma. Believing Women in Islam: Unreading Patriarchal Interpretations of the Qur'an (Austin: Uni­versity of Texas Press, 2002).

Mir-Hosseini, Ziba. ‘The Construction of Gender in Islamic Legal Thought: Strategies for Reform'. Hawwa: Journal of Women in the Middle East and the Islamic World 1(1) (2003): 1—28.

Mir-Hosseini, Ziba, Lena Larsen, Christian Moe and Kari Vogt (eds). Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Tradition (London: I. B. Tauris. 2013).

Mir-Hosseini, Ziba, Mulki al-Sharmani and Jana Rumminger (eds). Men in Charge? Rethinking Author­ity in Muslim Legal Tradition (London: Oneworld, 2015).

Shaikh, Sa'diyya. ‘In Search of “Al-Insan”: Sufism, Islamic Law and Gender'. Journal of the American Academy of Religion 77(4) (2009): 781-822.

Wadud, Amina. Qur'an and Woman: Rereading the Sacred Text from a Woman’s Perspective (New York: Oxford University Press, 1999).