Musawah/Sisters in Islam, Kuala Lumpur (www.musawah.org)
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Muslim family laws have for long been—and continue to be—a hugely controversial subject. Critics contend that these laws seriously militate against basic human rights, especially of women. On the other hand, conservative ulema and Islamist ideologues hail these laws as the epitome of divine justice and refuse to consider any changes therein.
This book—a collection by leading international Islamic scholars and women’s rights activists—advocates a middle-of-the-road position. The contributors to the book claim that while Islam can be interpreted as upholding women’s rights, dignity and equality, Muslim family laws, as they exist in most countries, simply do not. Hence, they argue, the need for urgent changes in these laws—in order not just to provide women the rights that these laws deny but also for these laws to conform to what they regard as the underlying spirit of Quranic teachings, particularly concerning justice and equality.
The papers included in this volume emerged from an international conference on Islam and Gender Justice recently held in 2006 in Kuala Lumpur, Malaysia, at the initiative of Sisters in Islam, a well-known Muslim women’s group that has been in the forefront of articulating Muslim women’s rights and equality within an Islamic framework. The conference led to the formation of a group which was named Musawah (‘Equality’ in Arabic). Its mandate is to coordinate international efforts to promote legal reforms in Muslim countries in family matters in consonance with what it believes to be the basic Islamic principles of justice, equality and dignity for all human beings, including Muslim women and people of other faiths.
The book, the first of a series of publications that Musawah plans to bring out, begins with a detailed statement of the organisation’s basic principles and charter of demands. It sets out the claim that the Quran, if understood in an expansive, and what it regards as an ‘authentic’ manner, is not incompatible with contemporary international human rights standards. Hence, it demands, relations between Muslim women and men, in both the private and public spheres, must be governed by principles and practices that uphold equality, fairness and justice. All Muslims, including women, it stresses, have ‘an equal right and duty to read the religious texts, engage in understanding God’s message, and act for justice, equality and the betterment of humankind within their families, communities and countries.’ In other words, it asserts, the study and interpretation of Islam cannot be considered the sole preserve of the male ulema or Islamic clerics.
Many laws related to personal status and family codes in Muslim contexts are patently unjust to women. Human affairs, it stresses, constantly change and evolve, and so must laws and social practices that shape relations within the Muslim family. This is necessary, so it argues, in order that the laws reflect Islam’s stress on equality, justice, love, compassion and mutual respect between all human beings. Such legal reform, it contends, is by no means a new innovation, for changes in rules for the public interest (maslahah) have always been part of the Muslim legal tradition.
The statement argues the need for a critical re-reading of these laws, not from a secular point of view, but, instead, through the prism of Qur’anic teachings, based on justice (adl), equality (musawah), equity (insaf), human dignity (karamah), love and compassion (mawaddah wa rahmah). These principles, it says, ‘reflect universal norms’ and are ‘consistent with contemporary human rights standards.’ Formulating new laws based on these principles would not, it argues, constitute a deviation from the shariah, the ‘revealed way’, contrary to what is often alleged. It would certainly be a departure from classical fiqh, though, but fiqh, it notes, is distinct from the shariah, being the result of human effort in seeking to interpret and draw rules from the shariah. Hence, being human and fallible, fiqh, unlike the shariah, is also changeable, through resort to ijtihad or independent reasoning. Hence, reforming existing gender-just laws that form a part of the corpus of fiqh, many of which are still enforced, is, the statement claims, fully in accordance with the aims of the shariah rather than constituting a violation of it, as might be alleged. The statement backs this assertion with this approproate quotation from Ibn Qayyim al-Jawziyyah, the noted fourteenth century Islamic jurist: ‘The fundamentals of the shariah are rooted in wisdom and promotion of the welfare of human beings in this life and the Hereafter. Shariah embraces justice, kindness, the common good and wisdom. Any rule that departs from justice to injustice, from kindness to harshness, from the common good to harm, or from rationality to absurdity cannot be part of shariah, even if it is arrived at through individual interpretation.’
The opening essay of the book, authored by the Malaysian scholar-activist Zainah Anwar, head of Sisters-in-Islam and convenor of Musawah, is a trenchant critique of patriarchy in the name of Islam and a passionate advocacy of gender equality as an Islamic mandate. The essay elaborates on the themes contained in the Musawah statement, and calls upon women’s rights activists to seriously engage with the Islamic religious tradition instead of leaving it to die-hard clerics and misogynist Islamists to monopolise.
The second paper, by the noted Iranian scholar Ziba Mir-Hosseini, examines conceptions of gender in Islamic legal thought and the challenges they present to the construction of an egalitarian Muslim family law. She argues that ‘there is neither a unitary nor a coherent concept of gender rights in Islamic legal thought.’ Rather, there is a welter of conflicting concepts that reflect both Islam’s ‘ethical egalitarianism’ and the patriarchal contexts in which classical fiqh emerged and developed. This she relates to the distinction—often ignored by Islamists and conservative ulema—between shariah and fiqh, the former being God-given and eternal, and the latter being a product of human reasoning and thus fallible and amenable to change.
‘Islam Beyond Patriarchy Through Gender Inclusive Quranic Analysis’ is the title of a provocative paper by the well-known American Islamic scholar Amina Wadud. Reiterating a point made by the other contributors to this volume, she stresses the distinction between shariah and fiqh, highlights numerous instances of patriarchal prejudice in the corpus of fiqh and pleads for reforms in the fiqh rules so as to make them consonant with what she argues is the insistence on the ontological equality of men and women as envisaged in the Islamic shariah.
Khaled Abou El Fadl’s paper, titled ‘Human Rights Commitment in Modern Islam’ critiques contemporary Islamist thought for its obvious indifference to basic human rights of women and non-Muslims, discusses major points of tension between the Islamic tradition and modern conceptions of human rights and explores the possibility of reconciliation between the two.
In her paper, Amira El-Azhary Sonbol traces the overlapping of fiqh-based laws, customary laws and colonial laws in shaping personal status codes in a range of Muslim countries and communities.
The concluding essay of the book, by Kamala Chandrakirana, Chairperson of the Indonesian National Commission on Violence Against Women, provides a broad summary of the lived realities of Muslim women today, in the context of which, she argues, strategies for reform, including legal change, have to be considered. She argues that these realities ‘compel us to acknowledge that gender equality and justice in the Muslim family have become undeniable necessities’.
Taken together, the essays contained in the book make a passionate and persuasive case for urgent reforms in existing Muslim personal status laws. The crucial point that the contributors make is that their advocacy for legal reforms is itself an Islamically-legitimate demand, rather than, as their traducers would allege, a deviation from or subversion of Islam. Turning the tables on their detractors, they go so far as to suggest that it is the patriarchal fiqh-based laws that militate against gender justice (which many conservative ulema and Islamists uphold as authentically ‘Islamic’) that actually represent a cruel betrayal of the basic principles of the Islamic faith and tradition.