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Khalid Chraibi - SaudiDebate.

com
Muslim society issues - Islamic law –

Women cite Qu’ranic rights as Muslim
modernists use law to confront culture of
oppression
Monday, 02 April 2007

By Khalid Chraibi

The status of Arab women underwent a drastic change in the 7th Century, with the advent of
Islam. The new faith liberated them from a situation of tutelage and granted them their full
share of rights and responsibilities within Muslim society. The part they played in family life
and in the community increased markedly, as they acquired the right to inherit property,
conduct business, and have access to knowledge.

But these rights, to this day, aren’t properly implemented in many communities, and the issue
of women’s rights continues to be at the center of a controversy in many countries. Thus,
associations handling the cases of women in difficult situations describe innumerable
instances of oppression, exploitation or mistreatment, with many women living under the
threat of repudiation, polygamy, domestic violence, “honour” killings, and the like. At work,
women suffer from discriminatory practices with regard to employment status, pay scales,
responsibilities, promotion, not to mention sexual harassment.

In recent years, women’s rights have further deteriorated in various areas of the world, as
extremist groups have become increasingly influential in the political and legislative life of
different African and Asian countries. The Taliban regime in Afghanistan illustrated this
development, imposing strict segregation between the sexes, compelling women to wear a
burqa covering them from head to toe, denying them the right to education and to adequate
health care, and preventing them from work. It also instituted lashings and amputations as
forms of corporal punishment.
But the experience of Afghanistan’s women under the Taliban was in no way unique, as
Zainah Anwar wrote of Malaysia : “New shari’a criminal laws were passed [in the 1990s in
Malaysia], designed to ensure that the Muslim lifestyle does not transgress Islamic teachings.
New offences were created, and moral surveillance, strict enforcement and more severe
punishment of Muslims were introduced. The Islamic Family Law, one of the most
enlightened personal status laws in the Muslim world, was amended to make divorce and
polygamy easier for men, and reduce men’s financial responsibilities towards women.”

Women reading the Shari’ah
Until these developments, women's associations throughout the Muslim world had given high
priority to putting pressure on Governments to implement the UN-sponsored international
conventions these countries had signed, concerning human rights in general, and women's
rights in particular. They also wanted them to withdraw the reservations they had expressed
on signing these conventions concerning various provisions – on the grounds that they
“conflict with religion” – since the reservations had the effect of diluting much of the
conventions’ usefulness.

The changed conditions in the Muslim world led these associations to redefine their priorities
and to include a serious study of the Shari’ah, in order to determine for themselves what it
really said, with the objective of developing new tools to oppose the repressive new laws,
policies and amendments to existing laws that were being introduced by Islamic groups.

Says Nora Murat, from Malaysia’s Sisters in Islam organisation: “If, as believers, we want to
live a life according to the tenets of our faith, a simplistic call to return to an idealised golden
age of Islam, that has little bearing on the realities of today’s world, cannot be the answer.
And yet the answers can be found within our faith - if only we have the intellectual vigour, the
moral courage, and the political will to strive for a more enlightened and progressive
interpretation of the Qur’an in our search for answers. For us in Sisters in Islam, this is not
heretical; rather it is imperative, if religion is to be relevant to our lives today.”

Women's associations were further motivated in their study of the Qu’ran and Sunnah by the
realization, in the words of Pakistan’s Riffat Hassan, that “there was a big gap in what the
Qu’ran was saying about women’s rights and what was actually happening in Muslim culture.
So, one has to distinguish between Qu’ranic text and the Islamic tradition. The interpretation
of the Qu’ran from the earliest times till now has been done almost entirely by men. It was
also done in a male-dominated patriarchal culture. So the Qu’ran was interpreted through a
male-centric cultural lens—which obviously has affected women’s rights.”

Women’s study of the Shari’ah convinced many of them, in the words of Nigeria’s Ayesha
Imam, of the need “to distinguish between Islam – the way of Allah – on the one hand, and,
what Muslims do – those who believe in Islam and attempt to practice it – on the other”. In a
paper entitled “Women's rights in Muslim laws”, she explains: “Islam is not questioned. But,
what Muslims (human fallible people) make of Islam can be”.

She observes that, though religious laws draw their inspiration from the divine, they are not
the same as divine laws. They “do rely on human agency to elaborate, implement and enforce
them”. She explains that, in many situations, even the experts do not agree on the definitive
meaning of verses in the Qu’ran. Moreover, it is admitted that “many hadith (accounts of the
life of the Prophet) are apocryphal, motivated by inter-sect and dynastic rivalries”. Several
hadiths of this type seem to have had as their principal aim to put restrictions on women’s
rights, although they do not fit with surahs (chapters) in the Qu’ran or with other hadith.

Ms. Imam adds that many people believe the shari’ah to be the same everywhere, throughout
the Muslim world. But the fact is that it varies significantly from one country to another, as
well as over time. The existence of four main schools of Shari’ah in the Sunni tradition
illustrates the diversity of interpretations. The founders of these schools themselves declared
emphatically, and repeatedly, that their views should not be considered as final or binding on
all Muslims. So, “refusing further ijtihad (personal reflection) is not a religious or divinely
sanctioned act. It is not required in the Qu’ran or by the Sunnah. To the contrary, both the
Qu’ran and hadith refer approvingly to thinking, reasoning and diversity of opinion”.

Though Ms. Imam’s analysis may come as a surprise to readers who have been raised in the
belief of the singularity of Shari’ah in Muslim countries, the facts suggest otherwise, as is
easily verified by a comparison of current Personal Muslim Law in various countries.

Personal Muslim Law also undergoes important changes over time within the same country,
as illustrated, for example, by the evolution of family law in Egypt in the 20th Century. The
reform of Morocco’s Family Law in 2004 illustrates, for its part, the considerable change in
women’s rights that can be achieved over time, through a progressive, but faithful and
equitable implementation of the provisions of the Shari’ah.

Change within the religious framework
Morocco’s Moudawana (Personal Status Law) of 1957, though relatively modern and
equitable in many respects, showed a clear conservative bias in its interpretation of many
provisions of the Shari’ah, putting several undue restrictions on women’s rights. The network
of Moroccan women associations fought for a half-century to obtain its reform.

In methodological terms, the revision was to be based on a very attentive reading of the
Shari’ah, taking into account as faithfully, as fully and equitably as possible, all relevant
surahs and hadiths applicable to every aspect of Muslim personal law. Nevertheless, a major
controversy developed around the project, between modernist groups and conservative
political forces, jeopardizing the whole operation, which was only saved through the personal
intervention of King Mohamed VI.

Acting as Amir al-Moumineen (Commander of the Faithful), and assisted with the advice of
the Council of Ulama, the King of Morocco had the final say on how to resolve difficulties of
a religious nature, and he provided detailed explanations to Parliament on the choices he
made. The Parliament had the final say on non-religious issues.

The reformed Family Law came into effect in 2004. Among other things, it makes the family
the joint responsibility of both spouses, rescinding the wife’s duty of obedience to her
husband. It allows women to be their own guardians, and raises the minimum age of marriage
for women to eighteen years. It puts prohibitive restrictions on polygamy, by requiring the
consent of the first wife, the notification of the second wife of the existence of the first one,
and a judge’s consent to the second marriage – which may be granted if he is satisfied that the
husband will grant equal status to each wife, in every respect. The Law makes polygamy
grounds for divorce by the first wife, and promotes the use of a marriage contract to exclude
the possibility of a second marriage by the husband. It puts repudiation under strict judicial
control, and requires an equitable distribution of the couple’s assets before a divorce can be
final.

The Moroccan Family Law of 2004 may have its shortcomings, but it is unquestionably
rooted in the Shari’ah, in every respect. Nevertheless, thanks to a more modern interpretation
of the stipulations of the Shari’ah, it affords a considerable progress in the situation of women
in Morocco.

Who decides what is Islamic?
Most womens’ associations working in the field of women’s rights understand fully, today, the
usefulness of the strategy of change within the religious framework. Having drawn the lessons
of past experiences, they are better prepared to confront the real issues. This shows clearly in
the following observations by women working in the field.

Asks Zainah Anwar: “If Islam is to be used as a source of law and public policy to govern the
public and private lives of citizens, then the question of who decides what is Islamic and what
is not, is of paramount importance. What are the implications for democratic governance
when only a small, exclusive group of people is accorded the right to interpret the Text and
codify it? Particularly when they do so very often in a manner that isolates the Text from the
socio-historical context in which it was revealed, isolates classical juristic opinion from the
socio-historical context of the lives of the founding jurists of Islam, and isolates the Text from
the context of contemporary society.”

Adds Nora Murat: “Knowledge that the Qur’an supports the universal values of equality,
justice and a life of dignity for women, gives us the courage and conviction to stand up and
argue with those who support discrimination against women in the name of religion. It is this
knowledge that gives us the confidence to tell them that there are alternative views on the
subject and that their obscurantist view, which discriminates against women, is not the only
view in Islam.”

References:
Zainah Anwar: Islamisation and its impact on laws and law making process in Malaysia
Nora Murat: Sisters in Islam: Advocacy for change from within the religious framework
Riffat Hassan: Interview by Samina Ibrahim, Newsline, Karachi, April 2001
Ayesha Imam: Women's rights in Muslim laws
Morocco: Family Law 2004