The Concepts of Justice through the Ages: The Example of Gender Relations

Muslim feminists and others frequently argue on this basis?™ For instance, a prominent Iranian jurist interprets the rule on guardianship over minor children (wilaya), which is in principle restricted to men, as a merely personal relation­ship between the guardian and the child; other ‘protective measures’ for children were not covered by this term.^{[252] [253] In consequence, the wilaya is separated from legal relations — in contrast to the predominating understanding — with the ef­fect that the protective role can also be attributed to females.}

One characteristic example of the freedom of interpretation which courts in the Islamic world allow themselves in particular is a judgement on appeal by the Bangladesh High Court in the matter of Hefzur Rahman v. Shamsun Nahar Begum et al. of 9 January 1995.^u2 The point at issue was whether divorced wives may claim alimony from their husbands beyond the three-month period of waiting (4dda). One of the major works of classical legal literature, the Hana-

fite scholar al-Marghinani’s (1135 -1197) Hidaya, which has had a particular im­pact on the Indian subcontinent and to which the verdict refers,^[254] is against this.

The conclusion is determined by the interpretation of sura 2:241 which says (in Arberry’s translation): “There shall be for divorced women provision honour­able — an obligation on the godfearing.” The nub of the problem is the interpre­tation of the phrase ‘appropriate goods’ (mata^, bi-l-ma^,ruf): does this refer to household utensils and suchlike, or does it refer to continuing alimony for needy wives after the end of the marriage? In the end the court went with the opinion which translates the passage as ‘maintenance on a reasonable scale’ and consequently agrees to the continuing claim to alimony (up to a possible re­marriage).

The court started by saying that in God’s own words the Qur’an is easy to understand.

A civil court, they argued, is consequently authorised to follow Qur’anic law and disregard everything else, even if the latter was argued by early, much-re­spected jurists and observed for a long time.

The time-oriented reinterpretation can be found in a wide range of individ­ual issues below the threshold of general reinterpretation. The short weighting of female testimony in Qur’an 2: 282 (the declaration of two women is equal to one male testimony) is one example. This regulation is set in the context of a proving documentation of certain financial transactions. The modern opinion can now argue that the rule requires a lack of female versatility facing such points. But if women were also well informed, their testimony would be equal to the male.^{[255] [256] [257]}

On the other hand extreme patriarchal cultural traditions may be perpetuat­ed, or even re-instituted, with the support of traditionalist sharia scholars. In her impressive study on women and Islam in Bangladesh the Bangladeshi scientist Taj Hashmi examined among other things the activities of rural arbitration courts (‘Salish courts’). She says that the myth of the connection between the judgments of rural mullahs, ‘self-styled guardians of Islam’, and sharia law must be destroyed. She describes even non-practising and non-believing men in­sisting on so-called Sharia law being applied in order to deprive their relations, usually sisters, of an inheritance to which the latter have an equal claim. The mullah (supporting this) should be seen as nothing more than the assistant and collaborator of powerful village elders, but due to his position as interpreter of the Sharia he has great influence with the populace.^u6 ‘The bulk of the peas­ant and non-peasant population favour patriarchy and both “islamists” and “secular” Bangladeshi Muslims ardently legitimise the subjection and depriva­tion of women in the name of Islam (...) In sum, (...) patriarchy has been the main stumbling-block in the way of the empowerment of Bangladeshi women.

Approaches improving women’s rights culminating in equality are currently developed especially in the geographical periphery of the Islamic world, such as in Turkey and in Southeast Asia, but also in Tunisia or Morocco as well as in Iran, and meet massive resistance in particular within the Arab world and from the current Iranian regime. Some pioneers have fled from threats and coer­cive measures to the West. Their opponents are not only Islamists, but also with­in a broad spectrum of the traditionalist mainstream among the scholars. While they only accept de facto the implemented reforms without resistance, they put up massive resistance to completely new interpretations. The former Pakistani minister of justice, Brohi, is worth quoting here: ‘In the Islamic world, research on the field of the law must assert itself against the intolerance of the so-called ulama (.) as well, who see themselves as the guardians of the faith. They will also, and this is worse, note the smallest possible deviation in writings by aca­demically trained authors on the subject of law and institutions of the law, and then brand the writers responsible as heretics. As a result there are hardly any contributions worth mentioning from the pen of thinkers in Muslim countries on the literature of Islam; only in non-Muslim countries do we find a few at­tempts at supporting a re-establishment of Islamic thought, law and institutions of the law.'ii⁸