Muslim Women’s Rights in the Global Village:
Opportunities and Challenges (Excerpts)
Dr. Azizah Y. al-Hibri
Islam is very much like Einstein’s theory of relativity. Everyone talks about it, but very few truly understand it. So, I start by introducing the fundamentals of Islam, a religion based on the Qur’an, the revealed word of God.
The fulcrum of all Islamic faith is the unicity of God. To deny this unicity is to engage in shirk, that is, positing another deity with God, an unforgivable sin in Islam. From that follows all of Islamic law, and in particular the superiority of God’s will to our own whims, whether personal or cultural.
God created all humans from a single male and female who in turn were created from a single nafs (soul). No human is more favored in the sight of God than another except by virtue of one’s piety. As the Prophet puts it, people are equal like the teeth of a comb.
Unfortunately, according to the Qur’an, Satan did not understand these basic facts. In the story of the fall of Satan, God created Adam and ordered Iblis (Satan) to bow to Adam. Satan refused. His reason was simple. How could he bow to Adam if he is better than Adam? This Satanic logic, rooted in arrogance, caused Satan to disobey God and incur his wrath. By disobeying God, Satan set his own will as equal or superior to divine will. He thus violated the basic principle of Islam, namely the unicity of God, and the superiority of God’s will. He fell into shirk.
The medieval jurist al-Ghazali concludes that a rich person who thinks he is better than a poor one, or a white who thinks he is better than a black or red person, or, I add, a man who thinks he is better than a woman, is guilty of Satanic logic. For after all, the Qur’an is clear about the basis for the divine preference of one person over another. It is piety.
Incidentally, In the Qur’an, Eve was not responsible for Adam’s fall. Rather, both Adam and Eve were seduced by Satan to eat from the tree of power and eternity. This represents yet one more building block in the egalitarian ontology of Islam.
We now turn to duties and obligations of Muslim men and women. In matters of worship (ibadat) and related matters, generally Muslim women have equal rights to men, including the right to pray in a mosque, perform pilgrimage (Hajj), interpret the Qur’an, engage in jurisprudence, and even give fatwahs. Women have been engaged in one or more of these types of activities for centuries, from ‘Aisha, the wife of the Prophet, to al-Dahma’ of Yemen, to Kulthum Bint ‘Umar of Cairo.
Local custom, however, has increasingly interfered with women’s activities. Today for example, the Taliban have chosen to prohibit women from the robust pursuit of education. Clearly Afghan women cannot study the Qur’an and interpret it if they cannot read. How can the Taliban square their position with the Qur’anic verse which exhorts Muslims to ask God to increase their knowledge? Or with the fact that the Prophet engaged a teacher for his wife? Clearly, some Muslim countries are rapidly moving backward.
In matters of mu’amalat (transactions and dealings with others), the Qur’an clearly guarantees the woman many rights, such as the right to work, the right to education, the right to participate in the political process, the right to own property and the right to inherit.
The Qur’an asserts that "men have a share of their earnings, and women have a share of their earnings." Thus the Qur’an does not limit the woman’s ability to earn. Rather it treats it as parallel to that of the man. Yet Muslim countries continue to make it difficult for women to work. In Syria, for example, a working woman runs the risk of losing her maintenance, if she works without her husband’s consent. Egypt and Kuwait do not require such consent, so long as the job is "permissible" and does not harm the interests of the family. I am puzzled by this condition. Does Islam permit the husband to take any job, even an impermissible one which harms the interests of his family? If not, why then do we continue to legally burden the woman’s work choices while honoring those of the man? Is not that another form of paternalism?
In many Muslim countries today, women are still negotiating their right to participate in the political process even though it is reported in the Qur’an that the Prophet himself accepted the bay’ah (a form of election) from women. We are told that women cannot be political leaders because they cannot lead in prayer. Yet, we know that the Prophet asked a woman, Um Waraqah, to lead the prayers. Imams Abu Thawr and al-Tabari concluded that a woman may therefore lead men in prayers [Sa’di Hussein Ali Jabr, Fiqh al-Imam Abi Thawr (Beirut: Dar al-Furqan, 1983), p. 225].
But many jurists limited the significance of the incident, while others argued that it was highly specific and cannot be generalized. Closing their eyes to a vibrant history of Muslim female participation in politics, many Muslim societies continue to drag their feet. Perhaps what they need is another Muslim queen, like Queen Arwa of Yemen, to help them settle the issue.
Another fact worth noting is that Muslim women are often being denied by their own families their legitimate right to inheritance. I have heard one too many stories about mothers coercing their daughters into signing away their inheritance share to their brothers. What is needed today in Muslim countries are courts that protect daughters from such coercive behavior.
All these discrepancies between the Qur’an and the practice of Islam in Muslim countries point clearly to the fact that many Muslim countries and societies, while claiming to be bound by Islamic law, are in fact reverting to patriarchal customs, and often using religious claims to justify these customs which were rejected by Islam many centuries ago.
The denial of education has had the particularly pernicious effect of silencing pious women. Unable to distinguish between truly religious mandates and customary patriarchal prejudice, pious women have often opted to remain silent, thus further empowering local patriarchy and participating in their own oppression.
Let us look at other Qur’anic rights of women in action. According to a majority of Muslim jurists (from medieval times), the woman has the right not to enter a marriage without her consent. Yet, various Muslim countries today (not including Tunisia) require the woman to have a wali (guardian) to conclude the marriage contract on her behalf. This is amazing since many of these countries follow the Hanafi school of jurisprudence, and Abu Hanifa recognized the right of the woman to contract her own marriage!
In traditional Islamic jurisprudence, the marriage contract is not regarded as a service contract. Rather it is regarded as a contract for companionship. Consequently, the woman is not obligated to cook, clean or otherwise serve her husband. In fact, her husband is obligated to bring her prepared food.
These facts follow directly from the Qur’anic definition of the relation between spouses as one of mercy, affection and tranquility, not one of domination. Husband and wife are each other’s garments, that is they shield from public view each other’s shortcomings. The husband therefore may not discuss private matters concerning his wife with others. The husband is also instructed to stay with his wife in kindness or part ways charitably ("Imsakon bima’ruf aw tasrihon bi’ihsan"). Muslim divorce cases, in the United States and across the world, show that in many cases husbands violate this basic Qur’anic injunction.
Let me focus on one more right granted to women by Islam. The Muslim woman is entitled to be financially independent. Neither her husband nor father may touch her holdings. Furthermore, the Qur’an engages in affirmative action on behalf of women to help them accumulate wealth in a patriarchal world. For example, the woman is not ever obligated to spend any of her own money to support herself. The obligation usually rests on the shoulder of some male in her family. Of course, she may decide to waive the obligation, but then that is up to her.
While the woman does not need to spend her own money for maintenance, she may accumulate money through a variety of ways: such as work, marriage and inheritance. It has been often argued that the Qur’an gives the Muslim woman half the inheritance of the man. This is false. The relevant verse speaks only of siblings, and the rationale for giving the sister half of what the brother inherits is missed by looking at the verse in isolation as opposed to studying the whole Qur’anic financial/ social system. Given the totality of this system, what the sister inherits is net income to her. The brother’s share is a gross income which he uses to meet his maintenance obligations towards his children, elderly parents, wife and others. The woman has none of these obligations regardless of her financial status.
Unfortunately, some men use their maintenance obligation to turn the woman into a ward. They hang that on a particular Qur’anic verse which states in part that "men are qawwamun over women." Men have traditionally interpreted this verse to mean that men are in charge of women, or even superior to them. This gross misreading conflicts both with the Qur’anic principle of equality and the purpose of the affirmative action specified in the Qur’an.
Taking a closer look at the verse, we find at least two things [for a detailed and footnoted version of this argument, see "Islam, Law and Custom," American University Journal of International Law, vol. 12, no. 1, 1997, pp. 1-44, esp. 25-34.]:
First, that the word qawwamun means "to advise or take care of." Second, the verse states a limitation upon not a permission for men. It limits their advisory function to cases where two conditions are simultaneously satisfied:
First, the man is supporting the particular woman he is purporting to take care of or advise, and
Second, he has a greater edge in the subject matter of the advise.
The male’s status as qawwam thus does not extend by virtue of his gender to all women. This is exactly what the verse came to deny and limit. More importantly, if the woman is better informed about the topic of the advice, the male has no standing to offer his. Thus he may advise the woman on financial matters if she is naive about money, but not if she has an MBA, regardless of whether he is supporting her or not. It is perhaps for this reason that men tried to confine women to the home so that they will be dependent on the male’s advice about the real world.
In short, Qur’anic verses protect women’s rights. But some have been given a patriarchal interpretation, while others are not even applied. The Tunisian Code tried to deal with this problem by adopting egalitarian interpretations. For this reason, some have accused the Tunisian Code of being unduly influenced by the French. In fact, official memoranda detail the Islamic foundation for many of these provisions. In this Tunisia is no longer alone. Other countries are making good attempts. For example, the Jordanian and Kuwaiti Codes recognize verbal abuse as basis for divorce. Oman has two elected women in its parliament and another two in the Consultative Council. Qatar is seriously studying issues of women’s rights with an eye towards drafting a suitable personal status code. Muslim women are no longer silent. They are demanding their God-given rights, but they are doing it in the Qur’anic spirit.
*Dr. al-Hibri is a professor at the T. C. Williams School of Law, University of Richmond. She presented the foregoing address on September 26, 1999 at a Panel Forum at the Supreme Court organized by the Hannibal Club entitled, "Women in International Law: A Closer Look at the Arab and Muslim World." Dr. al-Hibri may be contacted at <email@example.com>
"Islam and Global Conflict"
Dr. Azizah Yahia al-Hibri
The promise of the Feminist revolution has not been fulfilled. Instead, it has been reduced to a list of demands, and patriarchally-oriented achievements. This is an unfortunate state of affairs. We need to reclaim our revolution and strive for a global vision based not on conflict, force and hierarchy, but on cooperation, harmony and conflict resolution.
The vision of our world today emanate from an assumption that conflict is a natural state of affairs. In fact, it is not. But what we have done through our selective perspective is emphasize the history of conflict in the world, forgetting the real shining moments of harmonious human history.
Let me illustrate. Many think that "Arabs" and "Jews" have always been in conflict. In fact, this is utterly false, so is the dichotomy. For the longest part of human history, Arabs (Muslim and Jewish) lived in harmony. An early shining moment in our history occurred over 1400 years ago when the Prophet Muhammad established the first Islamic state in the city of Madinah. As the head of that state, he executed a charter with both Muslims and Jews of Madinah, establishing a federalist structure and proclaiming a partial bill of rights (supplementing other rights stated in the Qur’an).
The Charter declared all Muslim and Jewish tribes of Madinah (there were no Christian ones there) to be one community. At the same time, each tribe retained its identity, customs and internal relations. Among the rights protected was the right to freedom of religion and the right not to be found guilty because of the deeds of an ally. In a global era when religious intolerance was the rule, the Charter of Madinah stated that the Jews of the community who were party to the Charter were "one people" with the Muslims. Jews were entitled to both succor from and equality with the Muslims. They were also entitled to Muslim loyalty. If wronged, they must be helped. Both Muslim and Jewish signatories had a right to mutual assistance and consultation [For more on this, see Azizah Y. al-Hibri, Islamic and American Constitutional Law: Borrowing Possibilities or a History of Borrowing? 1 University of Pennsylvania Journal of Constitutional Law 492 (1999)].
It is this model that informed the actions of khalifas in Andalusi Spain when they defined their relations to Jews there. Consequently, Jews were able to rise to the level of ministers in an Islamic government, and engage freely in business and scholarship. These were the days of Maimonides, the Arab scholar, the Jewish rebbe.
These are important facts in our human history, but we do not know them. We focus on examples of conflict instead. When we think of Muslim-Christian relations, our conflict ridden model is that of Spain under Ferdinand and Isabella, of the Inquisition. How many of us, however, have heard of another model in another corner of the Mediterranean, namely the Sicilian one? The latter model is one of harmony, despite initial conflict. It is a model that I did not discover until a few weeks ago when I read a recent law review article. The article notes that Sicily was ruled by Muslims for over two centuries, only to be replaced by the Normans. But the Normans did not attempt to destroy the existing culture, or obliterate the identity of the Muslims there. Muslims were able to practice their religion and retain their local customs. The Normans, in fact, adapted to the culture, and benefited from it. The result is that Islamic law may have not only benefited the Normans, but the whole common law tradition on which our American law is based [See John A. Makdisi, "The Islamic Origins of the Common Law," 77 North Carolina Law Review 1635-1739, esp. 1720-26 (1999)].
What we need today is more positive models and less conflict-ridden ones. We need healing, justice and forgiveness, both globally and at home. We need to put forth restorative concepts of justice. Restorative justice aims at healing the victim, the family of the victim and the community at large. It requires for example, reparation and participation. It does not focus only on the offender or on retribution. It is this kind of justice that our faiths advocate [For an example of restorative justice in Islam, see Azizah al-Hibri, The Muslim Perspective on the Clergy-Penitent Privilege, 29 Loyola of Los Angeles Law Review 1723 (1996)]. Unfortunately, we have fallen short of this kind of justice and consequently ended up with a world full of conflict. So, we need to change.
*Dr. al-Hibri delivered this speech on October 15, 1999 at the Washington National Cathedral at an event organized by The International Women’s Forum.
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