Haddad’s Framework and Proposals for Reform

What was it in Haddad’s book that provoked such a reaction from his seminary teachers and colleagues? The book has two parts. The first, ‘Legislative Section: Women in Islam’, contains Haddad’s critique of fiqh rulings and his proposals for reform.

The second part, ‘Social Section: How to Educate Girls to be Wives and Mothers’, is his critique of the current situation and his proposals for socio-cul­tural change. I confine my discussion to the first part, which contains Haddad’s framework for redressing gender inequalities in Muslim legal tradition. Haddad is neither apologetic nor defensive. ‘I am not oblivious to the fact that Shari‘a accorded lower status to women than men in certain situations,’ and that the sa­cred texts ‘make us believe that in essence [Islam] favoured men over women’. But he goes on to argue the need to go beyond the literal meanings of the two main sources of the Shari‘a, the Qur’an and the Prophet’s Sunna: ‘if we look into their aims, we realise that they want to make woman equal to man in every aspect of life’ (p. 104).

There are two related elements in Haddad’s approach to Islam’s textual sour­ces. The first is the distinction between laws that are essential to Islam as a re­ligion, and those that are contingent and time- and context-bound; in his words: We should take into consideration the great difference between what Islam brought and its aims, which will remain immortal in eternity, such as belief in monotheism, moral behav­iour, and the establishment of justice, dignity and equality among people.

The second element in his perspective is what he calls the ‘policy of gradualism’ (siyasa tadrijiyya), which he argues governs the process of legislation in the Qur’an and Sunna. In Islam the ‘highest aim is equality among all God’s crea­tures’, but it was not possible to achieve this aim in the seventh century and dur­ing the lifetime of the Prophet; ‘the general conditions in the Arabian Peninsula forced the legal texts to be laid down gradually, especially those concerning women’ (p. 104). ‘Islam is the religion of freedom’, but it tolerated ‘the selling and buying of human beings as goods, and their exploitation as animals for the duration of their lives’ (p. 48). This toleration was a concession to the socio-economic imperatives of the time. It was not then possible to do away with slavery all together, but the Qur’an and the Prophet encouraged the freeing of slaves, and made it crystal clear that the principle is freedom. For exactly the same reason, gender hierarchy was tolerated then, but the principle in Islam re­mains equality.

Although Islam highlights a number of differences between man and woman in several verses in the Qur’an, this does not in any way affect the principle of social equality between them when the necessary conditions were [to become] present over time since Islam in es­sence aims for complete justice and fairness. It introduced its laws and gradually adapted them according to the capacity of people to obey them. There is no reason to believe that the gradual changes that took place in the life of the Prophet should stop after the passing away of the Prophet.

The Qur’an’s gradual ban on drinking wine, Haddad argues, is a clear example of the ‘policy of gradualism’ in the formulation of legislation that unfolded dur­ing the lifetime of the Prophet. At first, drinking was tolerated; then later verses abrogated the earlier one and the ban was introduced. But he maintains that other issues, such as slavery, polygamy, men’s authority over women, and unilat­eral divorce remained to be resolved later. Slavery was eventually abolished, when societies evolved and humans realised its evil; abolition took place first in the West, Muslim countries followed suit, and Shari‘a-based laws relating to slavery all became obsolete. Now the time has come to honour ‘Islam’s love for equality’ and to abolish unjust and discriminatory laws that have kept women backward and denied them their rights. To do so we must, first, discover the principle and the objective behind Qur’anic laws, and secondly, understand that they were means to an end; they were not meant to be eternal or rigid in form, they are just shells and can be changed when they no longer serve the so­cial objectives of Islam, which are those of freedom, justice and equality. They were revealed to the Prophet so that he could reform and change the unjust val­ues and practices of his time.

With respect to family law, there are again two important elements in Had­dad’s approach. First, he rejects the argument that women are unfit for certain activities and that their primary role is motherhood. ‘Islam did not assign fixed roles to men and women. Nowhere in the Qur’an can one find any refer­ence to any activity — no matter how elevated it may be — whether in govern­ment or society, that is forbidden to woman’ (p. 39). Yes, men and women are different; women give birth and are physically and emotionally suited to care for children, but this in no way means that Islam wanted them to be confined to the home and to domestic roles.

Secondly he breaks away from the transactional logic of marriage in fiqh, and places mutual affection and cooperation at the centre of the marital relation­ship.

Marriage involves affection, duties, intercourse and procreation. Islam regards affection as the foundation of marriage since it is the driving force, as witnessed by the following verse: And among His signs is this, that He created for you mates from among yourselves, that you may dwell in tranquillity with them, and He has love and mercy between your (hearts): Verily in that are signs for those who reflect.^[138]

As for duty, this refers to the fact that husband and wife have to work together to build a life. In this sense, duty both preserves and enhances the emotional ties that exist between them and which enable them to carry out their duty wilfully (p. 57).

Having shifted the focus from Qur’an 4:34 to 30:21, his starting point for discus­sing marriage becomes freedom of choice (hurriyyat al-ikhtiyar). Love and com­passion cannot develop in a relationship that is imposed; women, like men, must have the freedom to choose their spouses and to be able to leave an un­wanted marriage, and this is what Islam mandates. He then goes on to break the link between maintenance and obedience as constructed in classical fiqh texts.

If we look at the origins of the Shari^,a in order to understand the meaning of duty in ma­trimony, we would find that it is incumbent upon the man to support his wife and children financially, on the grounds that they are not able to do so themselves.

The verse to which Haddad refers here (2: 228) goes on to say ‘but men have a degree (of advantage) over them;’^[139] this part of the verse is often invoked in con­junction with Qur’an 4:34 as textual evidence of men’s superiority in order to jus­tify their authority over women. But his reading of these two verses is different from that of the classical jurists. He argues that both verses must be read in the context of marriage and divorce practices of the time, and the privileges that men enjoyed before Islam: both verses aim to restrain these privileges. This becomes clear when we read these verses in their entirety and in conjunction with those that precede and follow them. In verse 4:34, a husband is required to provide for his wife, so that ‘the continued growth of the world’ can be ensured; he was given the right to ‘correct’ his wife’s behaviour in order to prevent a greater ill, divorce. According to Haddad, this verse is not speaking about the rights and du­ties of spouses, but about the course of action to be taken when there is marital discord, and it offers ways to resolve it. This becomes clear in the verse that fol­lows, which reads ‘if you have reason to fear that a breach might occur between a couple, appoint an arbiter from among his people and an arbiter from among her people; if they both want to set things aright, God may bring their reconciliation’ (4:35). Men are addressed because they are the ones who, then as now, have the power to terminate marriage, and the objective was to restrain this power and give the marriage a chance. Likewise, with respect to verse 2:228, which the ju­rists quote to argue for men’s superiority, Haddad maintains that it must be read in its entirety^[140] and in connection with the preceding and following verses, which are all related to marital separation and the protection of women.

After a lengthy discussion of various forms of divorce in fiqh and the acts of injustice and suffering that they entail for women, Haddad concludes that men’s right to talaq (i.e unilateral and extrajudicial divorce) must be abolished:

[T]here is no other way of dealing with matters relating to marriage and divorce cases, ex­cept through the courts so that everything is done in conformity with the spirit and the let­ter of the Shari‘a (p. 72).

Asserting that ‘the Qur’anic text generally sets forth means of achieving justice between man and woman’ (p. 79), Haddad also argues for the abolition of polyg­amy, which he contends ‘has no basis in Islam; it is... one of the evils of the pre- Islamic era which Islam challenged through its gradualist method’ (p. 63). Polyg­amy is unjust, inimical to the very foundation of marriage, which is based on af­fection and harmony between the couple. It was one of those practices that Islam wanted to eradicate but had to tolerate and could only modify. The Qur’an lim­ited the number of wives a man could have to four, and stipulated conditions of just equality among the wives; but made it clear that such justice is impossible to establish, however hard a man tries. Here Haddad quotes Qur’an 4:3, which says ‘Marry such women as seem good to you, two, three, four; but if you fear you will not be equitable, then only one.’ He also rejects the conventional argument that the Prophet himself was polygamous, and thus his practice should be followed:

The fact that the Prophet had many wives does not mean that he legislated for this practice or wanted the Muslim community to follow this path. Indeed he had taken these wives be­fore the limitations had been imposed. It is worth bearing in mind that the Prophet was also a human being, and as such was subject to human tendencies as regards issues that had not been sent down to him as revelation from the heavens (p. 64).

In short, Haddad argues for legal equality for women in all areas, including in inheritance. According to him, the Qur’an’s assignment of a lesser share of inher­itance to women was due to the conditions of the time; it was a concession to the social order. But here again equality is the principle and when we look closely, we find that,

Islam did not allocate a lesser share in the woman’s inheritance compared to that of man as a principle applicable in all cases. It gave her the same share in the case of parents inher­iting from their dead son when there is a male child and if it involves inheritance among blood siblings (p. 47).

In other instances where women were allocated lesser shares, it had to do with the context; the Arabs then would not have accepted equal shares for women, which they would have seen as unjust, as women did not participate in warfare and were under men’s protection. But ‘there is no reason why such a position should remain fixed in time without change.’

Haddad’s ideas and proposals for reform were indeed radical for the time, which to a large extent explains the harsh reaction of the clerical establishment to his book. A year later (1931), one of the officials of Zaytouna, Saleh Ibn Murad, published a book in response, entitled Mourning over al-Haddad’s Woman or Warning off Errors, Apostasy and Innovation. But in 1956, in a changed political context, when the nationalists/modernists had prevailed and Tunisia was an in­dependent nation-state, many of Haddad’s proposals for reform were adopted. Under the leadership of Habib Bourguiba, the modernists embarked on reform of the judiciary, and among their first acts was the codification of family law. The new code made polygamy illegal and gave women equal access to divorce and child custody; though the inheritance laws remained unchanged. All these reforms were of course introduced from above, when women were still not vocal participants in the debate.^[141]