Gender in Islamic legal tradition

The lively and contentious debate over gender equality and Islamic law, and the vast lit­erature that it has produced, can be grouped around three competing discourses. The first, which I term Traditionalist, is premised on gender inequality as prescribed by clas­sical Muslim jurists, and is still in operation in its unmodified form in only a few Muslim countries, notably Saudi Arabia.

1.1 Traditionalists: gender inequality

Traditionalists take a literal approach to the texts, and their gender discourse is an ahistor- ical and simplified version of that of classical fiqh texts.³ These texts take male superiority for granted, reflecting the world in which their authors lived. Biology is destiny; there is no overlap between gender roles; a woman is created to bear and rear children as her only con­tribution to society; her place is at home. Such a notion of women’s roles and duties informs the ideology and practice of the most conservative Islamist political groups, which take it as the indisputable interpretation of the Shariah.

The gender discourse in classical fiqh was encapsulated in two sets of legal rulings (ahkdm): those that defined the marriage contract and those that regulated women’s dress and access to public space. In these matters, the various fiqh schools all shared the same inner logic and patriarchal bias. If they differed, it was in the manner and extent to which their conception was translated into legal rules. A brief examination of these rulings is in order here, as they are at the centre of the debate about gender equality and Islamic law.

Here, I must stress, I am only concerned with the ways in which classical jurists under­stood and defined gender relations;⁴ whether these rulings corresponded at the time to actual practices of marriage and women’s covering is, of course, another question, and one that recent scholarship in Islam has started to answer. What this scholarship warns us is not to take the classical fiqh texts at face value; in pre-modern times judicial rules and court prac­tices were quite different, and women had better access to legal justice than has been the case in more recent times; they frequented courts to negotiate the terms of their marriages and divorces and were present in public space.⁵

1.1.1 Marriage in classical fiqh

In classical fiqh, marriage is one of the very acts that cross the boundary between its two categories of rulings: those pertaining to ‘ibadat (ritual/spiritual acts) and those pertaining to mu'amalat (social/contractual acts). In spirit, marriage belongs to ‘ibadat, in that Muslim jurists spoke of it as a religious duty ordained by God. In form, it comes under the category of mu'amalat, in that Muslim jurists defined it as a civil contract between a man and a woman such that any sexual contact outside this contract constitutes the crime of zind (fornication), and is subject to punishment.

With the contract, a woman comes under her husband’s 'isma/qiwdma (authority, domin­ion and protection), entailing a set of defined rights and obligations for each party: some with moral sanction and others with legal force. Those with legal force revolve around the twin themes of sexual access and compensation, embodied in concepts of tamkdn/ta'a (submission) and nafaqa (maintenance). Tamkdn (unhampered sexual access) is a man’s right and thus a woman’s duty, whereas nafaqa (shelter, food and clothing) is a woman’s right and a man’s duty. A woman becomes entitled to nafaqa only after consummation of the marriage, and she loses her claim if she is in a state of nushdz (disobedience).⁷ The contract establishes neither a shared matrimonial regime nor identical rights and obligations between spouses: the husband is the sole provider and owner of the matrimonial resources and the wife is possessor of the mahr and her own wealth. The only shared space is that involving the procreation of children, and even here a woman is not legally required to suckle her child and can demand compensation if she does.

A man can enter more than one marriage at a time: up to four permanent ones in all law schools, and in Shi 'i law also as many temporary marriages (mut a)⁸ as he desires, or can af­ford. He can terminate each contract at will: no specific grounds are needed, nor is the wife’s consent or presence required. Legally speaking, talaq, repudiation of the wife, is a unilateral act (iqd '), which acquires legal effect simply by the husband’s declaration.

1.1.2 Hijab in classical fiqh

Unlike rulings on marriage, classical fiqh texts contain little on the dress code for women. The prominence of veiling regulations in Islamic discourses is a recent phenomenon, dating to the 19th-century Muslim encounter with colonial powers. It was then that we see the emergence of a new genre of literature in which the veil acquires a civilizational dimension and becomes both a marker of Muslim identity and an element of faith.⁹

Classical texts — at least those that set out rulings or what we can call ‘positive law’ — address the issue of dress for both men and women under ‘covering’ (sitr) in the Book of Prayer, among the rules for covering the body during prayers, and in the Book of Marriage, among the rules that govern a man’s ‘gaze’ at a woman prior to marriage.¹⁰ The rules are minimal, but clear-cut: during prayer, both men and women must cover their ‘awra, their pudenda; for men, this is the area between knees and navel, but for women it means all the body apart from hands, feet and face. A man may not look at the uncovered body of an unre­lated woman; but a woman may look at an unrelated man.

There are also related rules in classical fiqh for segregation (banning any kind of interac­tion between unrelated men and women) and seclusion (restricting women’s access to public space). They are based on two juristic constructs: the first is the one that defines all of a wom­an’s body as 'awra, pudenda, a zone of shame, which must be covered both during prayers (before God) and in public (before men); the second defines women’s presence in public as a source offitna, chaos, a threat to the social order.

These are, in a nutshell, the classical fiqh rulings on marriage and covering that the Tra­ditionalists claim to be immutable and divinely ordained. They also claim that these rulings embody the Shari 'ah notion of gender, and thereby invoke them to legitimate male domina­tion on religious grounds, thus closing the door to any constructive debate.

1.2 Neo-Traditionalists: equity-complementarity

Neo-Traditionalists take a more pragmatic approach; they recognize that a way must be found of responding to the challenges of the modern world, to changing social and economic con­ditions. While they recognize that classical fiqh conceptions of gender are untenable, they see ‘gender equality’ as a ‘Western’ and alien concept that must be resisted. Instead, they argue for ‘gender equity’ or ‘gender complementarity’, which as we shall see, is reflected in the laws of most Muslim majority countries. The majority of Muslims subscribe to these views, which are also reflected in the vast literature that emerged in the early 20th century under the rubric of ‘women’s status in Islam’.

The roots of this gender discourse can be traced to the Muslim encounter with moder­nity, which coincided with the painful and humiliating encounter with Western colonial hegemony.

The codification of fiqh provisions on family law transformed the interaction between Islamic legal tradition, the state and judicial practice. Codes and statute books took the place of classicalfiqh manuals in regulating the legal status of women in society; family law was no longer solely a matter for private scholars operating within a particular fiqh school, rather it became the concern of the legislative assembly of a particular nation-state. Once it existed in a codified form and was applied by the machinery of the modern nation-state, ‘Islamic law’ itself came to replace the Muslim scholars, the 'ulama, as the main source of legal authority and transferred that power to the state.

All this led to the creation of a hybrid family law that was neither classical fiqh nor West­ern, and a new gender discourse and genre of literature that is neither traditionalist nor modern. Though commonly subsumed under Modernist Islamic discourse, I suggest that ‘Neo-Traditionalist’ is a better term, because this discourse upholds the classical fiqh rul­ings while providing a new rationalization for them. Hence the new genre of literature that emerged in the late 19th century but proliferated in the course of the 20th century. Largely written by men — at least until mid-century — the stated aims of these authors are to shed new light on the status of women in Islam and to clarify what they see as ‘misunder­standings’. They re-read the sacred texts in search of solutions — or more precisely, ‘Islamic’ alternatives — to contemporary problems such as women’s aspiration for equality.

Despite their variety and diverse cultural origins, what these re-readings have in common is an oppositional stance and a defensive or apologetic tone. Oppositional, because their con­cern is to resist the advance of what they see as alien ‘Western’ values and lifestyles; apolo­getic, because they attempt to explain and justify the gender biases which they inadvertently reveal, by going back to classical fiqh texts. However, they have problems responding to the voices of dissent within the Muslim world itself.¹²

They do not see men’s privileges in marriage, such as polygyny and the unilateral right to divorce, as discrimination but as an admission of the differences in male and female natures and sexualities, and between men’s rational and women’s emotional dispositions. They place their focus on the ethical and moral rules that marriage entails for each spouse, drawing attention to those Quranic verses and hadith that affirm the essential equality of the sexes; ignoring the fact that these ethical rules, in effect, carry no legal sanction, they put forward no argument for translating them into law. As for hijab, they see it as a religious obligation whose function is to protect women and to safeguard public morality, while they keep silent on classical fiqh’s construction of women’s body as ‘awra, the sexual zone.

Unwilling to accept that aspirations for gender equality are not just imported from the West but part of 20th-century reality, they find themselves in a contradictory position. On the one hand, they uphold fiqh rulings on marriage and gender relations; on the other, they are aware of and sensitive to current discussions ofwomen’s rights and to criticisms, from both secular and religious women, of the patriarchal biases in Islamic legal tradition. Education and employment, divorce laws and the question of hijab are the main themes through which they address issues of women’s rights and define a range of positions. It is common to find a sin­gle scholar arguing for gender equality on one issue (for example, rights to education and employment), yet rejecting it on another (for example, divorce). In short, in these texts, the inequalities embedded in the classical fiqh construction of marriage and gender relations are defended and rephrased in terms such as ‘equity’ and ‘complementarity of rights and duties’.

With the rise of political Islam in the second part of the 20th century, these Neo­Traditionalist texts and their gender discourse became closely identified with Islamist po­litical movements, whose rallying cry was ‘Return to Shariah’ as embodied infiqh rulings.

1.3 Reformist-Feminists: gender equality

A small but increasingly vocal minority, Reformists hold that the best way to defend Islam in the modern world is by radically re-interpreting the sacred texts, in ways that will be both faithful to the basic principles of Islam and fully take account of time and place, that is of changing and varied social conditions. They do not reject an idea simply because it is Western; they see Islam’s textual sources not as providing a blueprint, an in-built programme of action for the social, economic and political problems of the Muslim world, but rather as giving us ethical guidance and principles for the creation of just laws. The more daring Reformist scholars have offered new interpretations that advocate gender equality; but the principle of gender equality has not yet been fully translated into the legal code of any Mus­lim majority country.¹³

Two parallel developments acted as catalysts for emergence of an egalitarian gender dis­course. The first was the ways in which the successes of political Islam and the ideological use of Shariah transformed relations between religion, law and politics for Muslims. The slogan of ‘Return to Shari 'ah’ in practice amounted to little more than attempts to translate into state policy classical fiqh rulings on gender relations and family and some areas of penal law. In late colonial times and the immediately post-colonial middle decades of the century, activist women in Muslim contexts had increasingly come to identify Islam with patriarchy, and to fear that the removal of the latter could not be achieved under a polity and a legal re­gime dominated by Islam. Towards the end of the century, wherever Islamists gained power or influence — as in Iran, Pakistan and Sudan — their policies proved the validity of these fears. Arguing for patriarchal rulings as ‘God’s Law’, as the authentic ‘Islamic’ way of life, Islamists tried to reverse some of the legal gains that women had acquired earlier in the century; they dismantled elements of earlier family law reforms and introduced morality laws, such as gen­der segregation and dress codes.

But these Islamist measures had some unintended consequences; the most important was that, in several countries, they brought classical fiqh texts out of the closet, and exposed them to unprecedented critical scrutiny and public debate. A new wave of Muslim reform think­ers started to respond to the Islamist challenge and to take Islamic legal thought onto new ground. Building on the earlier reformers, these new thinkers contended that the human understanding of Islam is flexible, that Islam’s tenets can be interpreted to encourage both pluralism and democracy, that Islam allows change in the face of time, place and experience. But instead of searching for an Islamic genealogy for modern concepts like gender equality, human rights and democracy, they placed the emphasis on how religion is understood and how religious knowledge is produced.¹⁴

The second development was the expansion of transnational feminism and women’s groups, and the emergence of NGOs, which led to the opening of a new phase in the politics of gender and Islamic law. Earlier in the century women were largely absent from the process of reform and codification of family law and the debates that surrounded it. But by the end of the century, Muslim women were refusing to be merely objects of the law, but rather claiming the right to speak and to be active participants in the debates and in the process of law making. The changed status of women in Muslim societies, and other socio-economic imperatives, meant that many more women than before were educated and in employment. Women’s rights were by now part of human rights discourse, and human rights treaties and documents, in particular the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), gave women a new language in which to frame their demands.

These developments opened new spaces for activism and debate. Women were now find­ing new ways to sustain a critique, from within, of patriarchal readings of Islam’s sacred texts and the gender biases offiqh texts. By the early 1990s, there were clear signs of the emergence of a new consciousness, a new way of thinking, and critical voices and scholarship that argued for gender equality on all fronts. Some versions of this new discourse came to be labelled ‘Islamic feminism’ — a conjunction that was unsettling to many Islamists and some feminists. Taking Islam as the source of its legitimacy, Islamic feminists began to question both the hegemony of patriarchal interpretations of the Shari 'ah and the authority of those who speak in the name of Islam. Their voices started to draw attention from media and academia, via publications, public meetings and workshops that provided a platform for scholar-activists.

The genesis of gender inequality in Muslim legal tradition, these scholars showed, lies in a contradiction between the ideals of Islam on the one hand, and on the other, the male- dominated structures in which these ideals unfolded and were translated into legal norms. They have produced an impressive body of scholarship to tackle patriarchal interpretations and text-based sources of gender inequalities and to reclaim Islam’s egalitarian message.¹⁵ This literature is extensive and diverse in approach;¹⁶ here I can merely outline the argument as to how and why male dominance came to be embedded in Muslim legal tradition. This was done through two sets of related processes. The first set is ideological and political, and has to do with the strong patriarchal ethos that informed readings of the sacred texts, the exclusion of women from the production of religious knowledge, and their consequent in­ability to have their voices heard and their interests reflected in law.

The second set is more epistemological, and involves the processes through which existing social norms, marriage practices and gender ideologies were sanctified, and then turned into fixed entities and legal concepts. That is, rather than considering them as social, thus tem­poral, institutions and phenomena, they were treated as ‘divinely ordained’, thus immutable.

There is an extensive debate in the literature on this, which I will not enter.¹⁷ But there are two points of consensus. The first is that the revelatory texts outlawed only some of the existing patriarchal practices of the time (such as burying infant girls alive and coercing women into unwanted marriages) and left others intact (such as polygamy and men’s right to unilateral divorce). As with slavery, the institution of patriarchy was not abolished; what the Qur'an and the Prophet did was to set in motion a process to transform them in the direction ofjustice, and to rectify injustices as they were understood at the time. The second consensus is that the further we move from the time of revelation, the more women are marginalized; their voices are silenced and their presence in public space is curtailed and eventually they lose their political clout. Women had been among the main transmitters of the hadith tradi­tions, but by the time the fiqh schools were consolidated, over a century after the Prophet’s death, their critical faculties were so far denigrated as to make their concerns irrelevant to law-making processes.¹⁸ As for hijab, in contrast to Neo-Traditionalists, they do not see it as an obligation but as a right, and defend a woman’s choice whether to adopt it or not. They have shifted the whole premise of hijab, not only the rationale for it.

In short, by re-reading textual sources and recovering a hidden history, Muslim feminist scholars are not only reclaiming the egalitarian message of their faith, but also inserting women’s voices in the production of religious knowledge and the process of law making. To give a concrete example of how they do this, I briefly discuss Musawah and its first major research initiative.

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