Justice and equality: changing and contested concepts

One of the central challenges that Muslim women face in their struggle for equality is how to address in a meaningful and coherent way the wide gap that exists between modern notions ofjustice, to which equality is inherent, and the notions ofjustice that underpin established understandings of the Shari 'ah.

While the Neo-Traditionalists admit the gender equality in the spiritual cosmology (cre­ation and afterlife), when it comes to the social realm, they basically adhere to the classical fiqh model of gender relations according to which women, because of their ‘nature’, are in need of protection. Their main argument goes as follows: equality amounts to a denial of the differences between men and women, and to give them equal rights would be against not only the laws of nature but also the requirements ofjustice.

Such a notion of justice, reflecting the Aristotelian idea of proportional equality, was profoundly challenged during the 20th century by the expansion of the human rights frame­work. An egalitarian understanding of social justice requires us to go beyond the binary of equality versus difference, to see them not as opposites but as interdependent. As feminist scholarship made evident, creating a binary opposition between the two creates a false choice when it comes to gender relations: ‘between endorsing either “equality” or its presumed an­tithesis, “difference”’. Equality is not the elimination of difference, and difference does not preclude equality.²⁸ We need equality as a principle ofjustice in society, in law, for regulating human relations, including gender relations, precisely because all humans are different in their capacities, access to resources, etc.

This way of thinking about equality and difference is reflected in the shift from ‘formal’ to ‘substantive’ models, which take into account differences between the sexes and the direct and indirect discrimination that such differences can produce.²⁹ A formal model of equal­ity, which advocates gender-neutral laws, does not necessarily enable women to enjoy their rights on the same basis as men. This is because it rests on a false premise: that the starting point and the playing field are the same for men and women.

A substantive approach to equality, by contrast, takes these factors into account. Instead of striving for gender-neutral laws, the emphasis is on the kinds of laws and legal reforms that can ensure equality of opportunity and result; that regulate power relations between men and women in such a way that women are able to enjoy dignity, security and respect in the family, and full participation in society.

It is this substantive model of equality that is advocated by members of Musawah and many other Islamic feminists, who, while not denying differences between men and women, yet strive for just outcomes. Inspired by the Quranic vision of justice and gender relations, they contend, equality can only be achieved with laws that transform power relations in the family and in society in the direction ofjust outcomes. A protectionist approach, on the other hand, by keeping power relations in marriage and society intact, in effect leads to injustice. This is so because it not only perpetuates gender stereotypes, but more importantly it curtails women’s freedom and the sphere of their activities, with the rationale of ‘protecting’ them from harm and wrongdoing. In doing so, it treats them as perpetual minors, which under­mines their human dignity (karamat) and prevents them from fulfilling their potential in both spiritual and social realms.