Last update: 2021-03-29 11:24:10
In many Muslim countries, modernization of legal systems did not affect the gender inequalities embedded in classical jurisprudence. This generated two conflicting dynamics: on the one hand, an effort at overcoming sex inequality; on the other, an emphasis on traditional normativity as a bulwark against Western cultural imperialism. A group of women has searched for an alternative approach, empowering women through a fresh understanding of Islam’s sacred texts.
Articulation of the ethical values and norms to be found in Islam’s textual sources (the Qur’an and hadith) has been the responsibility of Muslim scholars (‘ulamā’). Classical jurists (fuqahā’) endeavoured to translate these values and norms into legal rulings (ahkām). These rulings still constitute established interpretations of the sharia, which reflect pre-modern conceptions of justice, entitling individuals to different rights on the basis of faith, status and gender. In the course of the twentieth century Muslims were confronted by the ideals of universal human rights, equality and personal freedom; this was nowhere more evident than in the area of gender rights.
This article has two aims. First, I outline how the confrontation with “modern” ideals gave rise to a new discourse within the Islamic tradition which challenges the basis of traditional discourses and argues for gender equality. Secondly, I focus on the work of Muslim feminist scholar-activists in pursuing this argument. I write as a founding member of Musawah,[i] a global movement for equality and justice in the Muslim family. Musawah was launched in February 2009 at a gathering in Kuala Lumpur hosted by the pioneering Malaysian pressure group, Sisters in Islam.[ii] It links scholarship with activism to bring fresh perspectives on Islamic teachings, with the objective of contributing constructively to the reform of family laws and practices.
A word on my own position and approach is in order. I am a Muslim woman, and a committed participant in the debates over—and the struggle for—gender equality in law. My approach and analysis are those of a trained legal anthropologist; but I do not claim to be a detached observer. Since the early 1980s my research has centred on the laws regulating gender relations in the Islamic legal tradition. I examine these laws from a critical feminist perspective, and attempt a kind of “ethnography” of the juristic constructs on which the whole edifice of gender inequality in Islamic legal tradition is built. In 2000, I crossed the line between academic research and activism and began working with women’s groups like Sisters in Islam.
Sharia and the Reform of Family Laws
In the first part of the century, much of the Muslim world saw the rise of nation-states, the expansion of secular education, the retreat of religion from politics, and the secularization of laws and legal systems. Most Muslim-majority states put fiqh (Islamic jurisprudence) aside in all areas of law, apart from family law, where classical fiqh rulings were selectively reformed, codified and grafted onto new, unified legal systems inspired by Western models. The reforms that were introduced were limited, and did not directly confront the patriarchal construction of marriage. They focused on increasing the age of marriage, expanding women’s access to judicial divorce, and restricting men’s right to polygamy.
I have written at length about the consequences of the codification of fiqh provisions on family law.[iii] It transformed the interaction between Islamic law and social practice, and created a hybrid family law that was neither classical fiqh nor Western. Codes and statute books took the place of classical fiqh 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. In codifying family law, governments introduced reforms through procedural rules, which in most cases left the substance of the classical laws more or less unchanged.
All these gave pre-modern interpretations of the sharia new legal force, and led to the emergence of what I call “Neo-Traditionalist” apologetic literature on “Women in Islam,” in effect rejecting the challenge of gender equality. At the same time, as fiqh and its practitioners were increasingly confined to the ivory tower of the seminaries, they lost touch with changing social and political realities and became unable to meet the epistemological challenges of modernity. It is crucial to remember that, until the nineteenth century, Islamic law granted women better rights than any Western law. For instance, Muslim women have always been able to retain their legal identity and economic autonomy in marriage, while in England it was not until the passage of the Married Women’s Property Act in 1882 that women acquired the right to retain the ownership of property after marriage.[iv]
The last two decades of the twentieth century saw the rise of Islam as both a spiritual and a political force. Political Islam had its greatest triumph in 1979 in the popular revolution that brought clerics into power in Iran. Yet this was also the year when the United Nations General Assembly adopted CEDAW (the Convention on the Elimination of all forms of Discrimination Against Women), which gave gender equality a clear international legal mandate.
Two Conflicting Dynamics
The decades that followed saw the concomitant growth, globally and locally, of two powerful but seemingly opposed forces. On the one hand, in the 1980s the international women’s movement expanded; CEDAW gave women’s rights activists what they needed most: a point of reference, a language and the tools to resist and challenge patriarchy. On the other hand, Islamists—whether in power or in opposition—were invoking “sharia” in order to dismantle earlier efforts by modernist governments at reforming and/or secularizing laws and legal systems for instance in Iran and Egypt, and Pakistan’s introduction of the Hudood Ordinances that extended the scope of fiqh to certain aspects of criminal law.[v] Tapping into popular demands for social justice, the Islamists presented this dismantling as “Islamization” and as the first step to bringing about their vision of a moral and just society. Yet in practice this amounted to little more than legislating and enforcing laws and regressive gender policies, such as imposing dress codes, gender segregation, and the revival of cruel punishments and outdated patriarchal and tribal models of social relations.
Political Islam’s drive for “Islamization,” however, had some unintended consequences. A new wave of Muslim reform thinkers started to respond to the Islamist challenge and to take Islamic legal thought onto new ground. Using the conceptual tools and theories of other branches of knowledge, these thinkers expanded on the work of previous reformers and developed further interpretive-epistemological theories. Unlike earlier twentieth-century reformist thinkers, they no longer sought an Islamic genealogy for modern concepts like equality, human rights and democracy. Instead, they placed the emphasis on how religion is understood, how religious knowledge is produced, and how rights are constructed in Islamic legal tradition.[vi]
Meanwhile, attempts by Islamists to translate anachronistic patriarchal interpretations of the sharia into policy were provoking many women to increasing criticism of these notions, and driving them to new forms of activism. Increasingly, women came to question the link between Islamic ideals and patriarchy, and to reconcile their faith and their struggle for equality. By the early 1990s, there were signs of a new way of thinking about gender that was feminist in its aspiration and demands, yet Islamic in its language and sources of legitimacy. Some versions of this new discourse came to be labelled “Islamic feminism” about which I and others have written and spoken at some length.[vii] It is nurtured by a feminist scholarship that began to uncover a hidden history and re-read Islam’s textual sources, contributing to egalitarian interpretations of the sharia.
These developments, like so much else, were brought up short by the 11 September 2001 attacks in the USA, and by the subsequent politics and rhetoric of the “war on terror,” which many Muslims perceived as a war on Islam. The invasions of Afghanistan and Iraq—both partially justified in the name of “democracy,” “freedom” and “women’s rights”—combined with the double standards employed in promoting UN sanctions, deeply undermined the moral credibility of human rights and feminist discourses.
Musawah: A Movement for Equality and Justice in the Muslim Family
It was then that many of us, as Muslims and feminists, found ourselves in the crossfire. On the one hand, Islamists were denying us equality in the name of sharia; on the other, hegemonic global powers were pursuing a neo-colonial agenda in the name of feminism and human rights. The way out of this predicament, for some of us, was to bring Islamic and feminist frameworks together. The vast majority of women whose rights we championed were believers and wanted to live according to the teachings of Islam; effective change, we believed, could come, not through rejection and confrontation, but only through a meaningful and constructive engagement with those teachings.
To do this we needed to reclaim the egalitarian ethos of Islam’s sacred texts and to create a public voice for our vision of Islam. We faced two different forms of resistance. One came from religious establishments: leaders and groups who claim to know and speak for “authentic” Islam and sharia. They view both international human rights law and feminism with suspicion, and refuse to engage meaningfully with their advocates. But it is their vision of Islam, not ours, that reaches most women, who consequently do not necessarily share our quest for legal equality. The other form of resistance is from some secularist feminist scholars and women’s rights NGOs and activists, who are reluctant to engage with religious perspectives on women’s issues. For many of them, “Islam” itself is the main obstacle in their struggle for equality; they are only comfortable working within a human rights framework.
One of the very few women’s NGOs that are happy to identify as both Islamic and feminist is the Malaysia-based Sisters in Islam (SIS). Since its inception in 1988, SIS has argued for women’s rights and equality from within an Islamic framework, engaging scholars and the media in a public debate on religion. In February 2007, Zainah Anwar, founder and director of SIS, organized a workshop in Istanbul that brought together a diverse group of women’s activists and scholars from different countries. The meeting led to the formation of a planning committee, charged with the task of setting out the vision, principles and conceptual framework of the movement that we called Musawah, with the aim of forging a new strategy for reform.[viii]
Drawing on the new wave of reformist thought and feminist scholarship in Islam, we devised and published a Framework for Action[ix] in which we grounded our claim to equality and arguments for reform simultaneously in Islamic and human rights frameworks. Taking a critical feminist perspective, but most importantly working within the tradition of Islamic legal thought, we invoked two crucial distinctions in that tradition.
The first is between sharia and fiqh—a distinction that underlies the emergence of various schools of Islamic law and, within them, a multiplicity of positions and opinions. Sharia, literally “the way,” is the ideal divine way, which in Muslim belief was revealed to the Prophet Muhammad through the Qur’an. Fiqh, literally “understanding,” is the science of Islamic jurisprudence, as developed by Muslim jurists in order to discern the sharia, through extracting legal rules from the sacred sources of Islam: that is, the Qur’an and the Sunna (the practice of the Prophet, as contained in hadith, Traditions). Fiqh also denotes the “laws” that result from this process; like any other system of jurisprudence and law, it is man-made, temporal and local. Anyone who claims that a specific law or legal rule is sharia, or “God’s law”, is claiming divine authority for something that is in reality a fiqh ruling, a human interpretation. What we “know” of “sharia” is and always will be only an interpretation, an understanding.
The second distinction, which we also take from Islamic legal tradition, is between the two main categories of legal rulings (ahkām): between those that regulate ‘ibādāt (ritual/spiritual acts) and those for mu‘āmalāt (social/contractual acts). ‘Ibādāt concern relations between God and the believer, where jurists contend there is limited scope for rationalization, explanation and change, since they pertain to the spiritual realm and divine mysteries. This is not the case with mu‘āmalāt, which are relations among humans and remain open to rational considerations and social forces; most rulings concerning women and gender relations belong to this category.
These distinctions give us the language, the conceptual tools, to challenge patriarchy from within Muslim legal tradition. Our main objective is to insert women’s concerns and voices into the processes of the production of religious knowledge and legal reform in Muslim contexts. We do this by linking scholarship with activism. In this sense what we are doing is part of the larger struggle for the democratization of knowledge in Islam and for the authority to interpret its sacred texts.
Rethinking Two Central Concepts
In 2010, we initiated a multi-faceted project to rethink two central juristic concepts, rooted in the Qur’an, that lie at the basis of the unequal construction of gender rights in Muslim family laws. These are qiwāma and wilāya, which, as understood and translated into legal rulings by Muslim scholars, place women under male guardianship. Qiwāma denotes a husband’s authority over his wife; wilāya denotes the right and duty of male family members to exercise guardianship over female members (e.g. fathers over daughters when entering into marriage contracts). These concepts, as constructed by classical jurists and reflected in current laws and practices, have played and continue to play a central role in institutionalizing, justifying and sustaining gender inequality in Muslim contexts. And behind these laws and practices lies an ancient idea: Men are strong, they protect and provide; women are weak, they obey and must be protected.
There are two interconnected elements to the Musawah project. The first is the production of new feminist knowledge that critically engages with these concepts and redefines them in line with contemporary notions of justice. The second element of the project involves documenting the life-stories of Muslim women and men in different countries with the aim of revealing how they experience, understand, and contest these two legal concepts in their lived realities.
For the project, we commissioned background papers that expound and interrogate the construction of these two concepts in classical fiqh texts and their underlying religious and legal doctrines, as well as their place and working in contemporary laws and practices. This naturally took us to verse 4:34 in the Qur’an.
Men are qawwāmūn (protectors/maintainers) in relation to women, according to what God has favored some over others and according to what they spend from their wealth. Righteous women are qānitāt (obedient) guarding the unseen according to what God has guarded. Those [women] whose nushūz (rebellion) you fear, admonish them, and abandon them in bed, and adribū-hunna (strike them). If they obey you, do not pursue a strategy against them. Indeed, God is Exalted, Great.
This verse has been the focus of intense contestation and debate among Muslims for over a century. It constitutes the main textual evidence in support of men’s authority over women, and from which the classical jurists derived the concept of qiwāma or male guardianship over women. It is often the only verse that ordinary Muslims know in relation to family law.
There is now a substantial body of literature that attempts to contest and reconstruct the meanings and connotations of the four terms that I have highlighted. The translations I have given approximate the consensus of classical jurists, as reflected in the rulings (ahkām) that they devised to define marriage and gender relations.[x] It is no exaggeration to say that the edifice of family law in Muslim legal tradition is built on the ways in which classical jurists understood this verse and translated it into legal rulings. They defined marriage as a contract that automatically places a wife under her husband’s qiwāma and presumes an exchange: the wife’s obedience and submission (tamkīn) in return for maintenance (nafaqa) by the husband.
Yet, it is critical to know that this is the only appearance in the Qur’an of the word qawwāmūn in the context of gender relations. The abstract term qiwāma, which is based on it, does not appear at all. The closely related term wilāya does occur in the Qur’an in verse 18:44, where it refers to God’s protection of humans, but not in a sense that endorses men’s authority over women, which is the interpretation of the term that is enshrined in classical fiqh. Many other verses speak of the essential equality of men and women in the eyes of God and the world. In relation to marriage, two other terms appear numerous times: ma‘rūf (good practice) and rahma wa mawadda (compassion and love).
In 2015, the first outcome of the project appeared as the collected volume, Men in Charge? Rethinking Authority in Muslim Legal Tradition.[xi] Its main thesis is that male authority over women cannot be supported on religious grounds, that qiwāma and wilāya, in the sense of placing women under male guardianship, are not Qur’anic concepts; they are juristic constructs that in time became the building blocks of patriarchy in Muslim legal tradition. They rest on the assumption that God gave men authority over women, a theological fiction that became a legal postulate, whose main function now is to sustain gender inequality. The contributors are scholars from different disciplines and backgrounds who use their expertise to demystify these terms and re-interpret them from within the Islamic tradition and its core theological and ethical principles. Above all, they ground these understandings in lived realities and women’s experiences, which form the core of Life Stories element of the project.[xii]
Beyond Ideological Polarizations
Musawah is only one among several movements around the Muslim world that are now active in meetings as well as through lively online and social media debates, challenging from within the authoritarian and patriarchal ethics of established interpretations of the sharia and paving the ground for the egalitarian gender discourse from within. But do they stand a chance? Can a feminist discourse that takes its legitimacy from Islam’s sacred texts and has to operate within a closed legal system like fiqh, with little support from the power-base in that tradition—i.e. the Muslim jurists—bring transformation from within? My answer to this question is a qualified “yes”, for the following two reasons with which I end.
First, legal traditions and theories must be understood in the cultural, political and social contexts in which they exist and operate. Gender equality is a modern ideal, which only recently, with the expansion of human rights and feminist discourses, has become inherent to generally accepted conceptions of justice. In Islam, as in other religious traditions, the idea of equality between men and women was neither relevant to notions of justice nor part of the juristic landscape. By the end of the twentieth century this was no longer the case. Legal theory often follows practice; that is to say, when the reality on the ground changes, then social pressure will effect changes in the law. Islamic jurisprudence or fiqh is no exception. In the new century, it has to meet the feminist challenge from within—a challenge that it can no longer ignore.
Secondly, the struggle for gender equality is part of a larger struggle for social justice, democracy and pluralism. In Muslim contexts, this struggle is as much political as it is theological, though it is difficult to draw a line where theology ends and politics begin. A growing popular understanding of the nature of this struggle has been one of many unintended consequences of the rise of political Islam and the politics of the “war on terror.” These developments revealed the extent to which women’s rights in Muslim contexts are vulnerable to local and global power struggles between forces with other priorities. Islamic feminism articulates a public voice that can break down ideological polarizations such as those between “secular” and “religious” feminism, and between “Islam” and “human rights,” to which women’s quest for equality, and in turn the transition to democracy, have remained hostage since the early twentieth century. It points us to the main site of battle, which is between patriarchal and authoritarian structures, on the one hand, and egalitarian, pluralist and democratic ideologies and forces, on the other. The outcome of this battle will determine whether we can aspire to real and meaningful change that can dent the deeply embedded patriarchal assumptions and tendencies that have shaped our religious, cultural and political realities.
To cite this article
Ziba Mir-Hosseini, “An Islamic Way out of Patriarchy”, Oasis, year XV, n. 30, December 2019, pp. 14-24.
Ziba Mir-Hosseini, “An Islamic Way out of Patriarchy”, Oasis [online], published on 30th November 2020, URL: https://www.oasiscenter.eu/en/an-islamic-way-out-of-patriarchy