Voices of Islam (250 page)

It is remarkable that even when women transmitters of hadith were admitted in the
‘ilm al-rijal
(‘‘Science dealing with the scrutiny of the reports’’), and
.. .
even when their narratives were recognized as valid documentation for deducing various rulings, they were not participants in the intellectual process that produced the prejudicial rulings encroaching upon the personal status of women. More importantly, the revelatory text, regardless of its being extracted from the Quran or the Sunna, was casuistically extrapolated in order to disprove a woman’s intellectual and emotional capacities to formulate independent decisions that would have been sensitive and more accurate in estimating her radically different life experience.
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This takes us to the second set of mechanisms by which the egalitarian message of sacred texts was bypassed: the sanctification of patriarchy through
fiqh
rulings that ensured that women remained subordinate to men. In pro- ducing these rulings, classical jurists based their theological arguments on a number of philosophical, metaphysical, social and legal assumptions and theories, which in turn shaped their readings of the sacred texts. Salient philosophical/metaphysical assumptions that underline
fi
rulings on gender include the following: ‘‘women are created of and for men,’’ ‘‘God made men superior to women,’’ ‘‘women are defective in reason and faith.’’ While these assumptions are not substantiated in the Qur’an—as recent scholarship has shown
25
—they became the main implicit theological assump- tions determining how jurists discerned legal rules from the sacred texts.

The moral and social rationale for subjugation is found in the theory of difference in male and female sexuality, which goes as follows: God gave women greater sexual desire than men, but this is mitigated by two innate factors, men’s
ghayra
(sexual honour and jealousy) and women’s
haya

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(modesty and shyness). What jurists concluded from this theory was that women’s sexuality, if left uncontrolled by men, runs havoc and is a threat to social order. Feminist scholarship on Islam gives vivid accounts of the working of this theory in medieval legal and erotic texts, and its impact on women’s lives in contemporary Muslim societies.
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Women’s
haya
and men’s
ghayra,
seen as innate qualities defi ing femininity and masculinity, in this way became tools for controlling women and the rationale for their exclusion from public life and their subjugation in marriage.
27
The sale contract, as already discussed, provided the juristic basis for women’s subjugation in marriage, and the legal construction of women’s bodies as
‘awra
(pudenda) and of their sexuality as a source of
fitna
(chaos) removed them from public space, and thus from political life in Muslim societies.

I am not suggesting that there was a conspiracy among classical jurists to undermine women, or that they deliberately sought to ignore the voice of revelation. Rather I argue that, in discerning the terms of the Shari‘a, and in reading the sacred texts, these jurists were guided by their outlook, the social and political realities of their age, and a set of legal, social, and gender assumptions and theories that refl the state of knowledge and the normative values and patriarchal institutions of their time. These rulings— which were all the product of either juristic speculations or social norms and practices—came to be treated by successive generations as though they were immutable, as part of the Shari‘a. This is what Sachedina calls the crisis of epistemology in the traditional evaluation of the Islamic legal heritage.

The Muslim jurists, by exercise of their rational faculty to its utmost degree, recorded their reactions to the experiences of the community:
they created, rather than discovered, God’s law.
What they created was a literary expression of their aspirations, their consensual interests, and their achievements; what they provided for Islamic society was an ideal, a symbol, a conscience, and a principle of order and identity.
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In this way, what were essentially time-bound phenomena were turned into juridical principles of permanent validity, and rulings on ‘‘women’s status’’ and gender relations became fixed entities in
fiqh.
This was achieved, fi t by assimilating social norms into Shari‘a ideals, second by classifying rulings pertaining to family and gender relations under the category of
mu‘amalat
(social/private contracts, where the rulings are subject to rationalization and change) yet treating them as though they belonged to the category of
‘ibadat
(acts of worship where the rulings are immutable and not open to rational discussion). In short, rathar than embodying the principles of justice and equity inherent in Shari‘a ideals, the
fiqh
rulings on marriage and covering must be seen as literal expressions of the classical jurists’ ‘‘ideals’’ of family and gender relations.

Islam and Gender Justice
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The patriarchal ideology of the time, as refl in the
fi
texts, was so entrenched and so much part of the reality of classical jurists’ lives that it left little room for debate and criticism from within. Most women of their time had little diffi in accepting these rulings, as they reflected the way in which their roles were defi , and more importantly they had no choice but to submit. Women who did not accept such rulings could find some legal leeway, such as the insertion of stipulations in the marriage contract, to enable them to acquire a measure of autonomy in marriage.
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Women with property and fi ncial means were certainly in a better position—which points to another paradox in the construction of women’s rights. While classical jurists recognized women’s financial autonomy and right to control property, they denied women the right to control their own bodies or to participate in public life by their rulings on marriage and seclusion.

CONTEMPORARY GENDER DISCOURSES

With the rise of Western hegemony over the Muslim world and the spread of secular systems of education in the nineteenth century, the ideological hold of
fi
on social reality began to wane. At the same time, the colonial encounter turned the ‘‘status of women in Islam’’ into a contested issue, a symbolic political battleground between the forces of traditionalism and modernity, a situation that has continued ever since.

New gender discourses emerged and were aired in the vast literature on ‘‘women in Islam’’ that dates from the start of the twentieth century. Produced by religious publishing houses in both Muslim and Western coun- tries, this literature is available (much of it now on the Internet) in a variety of languages, including English. It consists of highly varied texts, ranging from outright polemic to sound scholarship.
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In terms of their gender perspec- tive, these texts fall into two broad genres. The first, which comprises the majority of available texts and views, I term ‘‘Neo-Traditionalist.’’ Its advo- cates uphold classical
fiqh
rulings and reject legal equality between the sexes as an imported ‘‘Western’’ concept that has no place in an Islamic worldview. Instead they argue for ‘‘complementarity of rights,’’ sometimes called ‘‘gender equity’’ or ‘‘balance,’’ which as we shall see, is a modified version of the classical
fi
gender discourse. The second genre, which I call ‘‘Reformist,’’ argues for gender equality on all fronts. It emerged in the last two decades of the twentieth century, is still in the process of formation, and still constitutes only a small part of the literature.

Gender Balance: Inequality Redefined

The roots of the first new discourse can be traced to the nineteenth century and the Muslim world’s encounter with Western colonial powers, but its

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impact is linked with the emergence of modern nation-states in the twentieth century and the creation of modern legal systems inspired by Western mod- els. It was during this period that, in many nation-states, classical
fiqh
rulings on family and gender issues were selectively reformed, codified, and gradually grafted onto a unified legal system.
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The impetus for reform varied from one country to another. Each Muslim country has followed one of three paths: abandoning Islamic law in all spheres and replacing it with Western-inspired codes (Turkey is the only example); preserving and attempting to apply Islamic law in all spheres of law (the Gulf countries); or retaining and codify- ing Islamic law with respect to personal status law concerning family and inheritance, while abandoning it in other areas of law (the large majority of Muslim countries).

Those governments that codified family law introduced reforms through procedural rules, which in most cases left the substance of the classical
fi h
rulings unchanged. Tunisia was the exception, incorporating the principle of gender equity into its 1956 family law.
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In the process of adaptation, family law moved from being the concern of private scholars operating within a particular
fi
school to the legislative assembly of a particular nation-state. Statute books took the place of
fi

manuals and texts in regulating the legal status of women in society. This not only led to the creation of a hybrid family law that is neither
fi
nor Western but also a new gender discourse that is neither entirely traditionalist nor modern. Though commonly termed Islamic Modernism, I suggest that ‘‘Neo-Traditionalism’’ is a more apt term for this discourse, as it shares the classical jurists’ basic understanding of gender. Where it differs is that, unlike classical jurists, advocates of the new discourse are able to impose their notions through the machinery of a modern nation-state. This has given patriarchal interpretations of the Shari‘a a new force and unprecedented powers.
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The Neo-Traditionalist gender discourse is found not only in the legal codes of Muslim countries but also in a new type of texts that, unlike classical
fi h
texts, neither are necessarily produced by jurists nor are strictly legal in their reasoning and arguments, which makes them more accessible to the general public. Largely written by men—at least until recently—the overt aims of these texts are to shed new light on the status of women in Islam and to clarify what they see as ‘‘misunderstandings about the law of Islam.’’ The main themes through which the authors of these texts address the issue of gender relations and defi a range of positions are women’s covering, marriage and divorce laws, and women’s right to education and employment. Despite their variety and diverse cultural origins, what these authors have in common is an oppositional stance and a defensive or apologetic tone: opposi- tional, because their concern is to resist change and suppress voices of dissent from inside, which they see as ‘‘invasion of Western and alien values’’; apolo- getic, because by going back to classical
fi
and upholding its rulings they

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inadvertently expose—and have to defend—its inherent and anachronistic gender biases.

Unwilling to accept that the aspiration for gender equality is not just an imported (Western) concept but part of modern realities, these authors often fi d themselves in a paradoxical position. On the one hand, they adopt an uncritical approach to classical
fi h
constructions of marriage and gender relations, and on the other hand, they are aware of, and sensitive to, criticisms of patriarchal bias; they begin their texts with abstract and general statements such as ‘‘Islam affirms the basic equality of men and women,’’ ‘‘Islam grants women all their rights,’’ and ‘‘Islam protects and honours women.’’ It is common to find a single text in which the author accepts the principle of gender equality on one issue (usually on women’s education and employ- ment, where classical
fi h
is more or less silent), but rejects it on matters related to covering and family law (where classical
fiqh
is strident).

Neo-Traditionalist texts lack the legal coherence and the sense of real conviction that imbue classical
fi
texts. Keen to distance themselves from overtly patriarchal language and concepts, their authors keep silent on the juristic theories and theological and other assumptions that underlie these rulings in classical
fiqh
texts. For instance, they ignore the parallels in the legal structures of the contracts of marriage and sale, and views such as those of Ghazali (quoted earlier), which see marriage as a type of enslavement for women. Such views are so repugnant to modern sensibilities and values, so alien from the experience of marriage among contemporary Muslims, that no defender of
fiqh
rulings can acknowledge them. Yet the patriarchal logic and the notion of sale, implicit in their texts, come to the surface when they resort to legal arguments, as in the following explanation of why women cannot have equal rights to divorce:

If she were to be given this right, she would grow over-bold and easily violate the men’s rights. It is evident that if a person buys something with money, he tries to keep it as long as he can. He parts with it only when he cannot help it. But when a thing is purchased by one individual, and the right to cast it away is given to another, there is little hope that the latter will protect the interest of the buyer, who invested the money. Investing man with the right to divorce amounts to the protection of his legitimate rights. This is also checks the growth of the divorce rate.
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A large majority of the Neo-Traditionalist texts place the focus on the eth- ical and moral rules that marriage entails for each spouse, drawing attention to those Qur’anic verses and
hadith
that affi the essential equality of the sexes. Yet, they fail to mention that these ethical rules, in effect, carry no legal sanction, nor do they offer any suggestions as to how they can be translated into legal imperatives. Likewise, while rejecting
fi
rulings on seclusion, Neo-Traditionalist texts defend the principle of gender segregation and