Jura GentiumRivista di filosofia del diritto internazionale e della politica globale
Jura Gentium
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2007 Looking Through Veils - Women's rights in IslamKristina Touzenis Women in the Shari'aOften the suppression of women in Muslim countries is attributed entirely to the Islamic legal system - the question examined here is if that is really reasonable, or if some stereotypes should be put aside and other factors investigated when talking women's rights and their denial. The issue relevant here, is not just how women are treated in the Shari'a, but also if the verses regarding women (as well as other verses that are not immediately relevant here) are eternally true - or if some of them are linked to the period in which they were narrated. This will lay the foundation of analyses of how male interpretation has focused on granting men better rights than women, even when it was perhaps possible to promote equality. Naturally not all verses can be examined here, so it is a representative selection, chosen to illustrate the situation. Before moving on to the treatment of the subject it could be useful to remember - and to keep in mind - that "Islam in itself is no more repressive than Judaism or Christianity with the regard to the position of women. Neither of these religions can be adequately understood without taking the patriarchal social systems which spawned them into account" (1). It is necessary to read and try to understand the Shari'a on the basis of the society in which it came alive, only looked upon like that, is it possible to understand what the place of women are in the Holy Law, because only on that background, one is able to understand if improvements were made for women, and why they do not reach further. Only on that background is it possible to understand some of the verses that taken out of their timely context would make no sense. It is also on that basis one might understand the more abstract intention in the verses - that is if improvements were made for women, it may be that total equality was the intended utopia, but that the social reality put its limits to the realisation of this. There are quite some verses in the Quran that express the view, that men and women are equals. One is pointing out that both sexes are created out of a single soul and that both are of the same kind Quran IV, 1. This is called a "noble and universal message to humanity" and it has been said that "no text...deals with the humanity of the woman ... with such amazing ... depth and originality" (2). There can be no doubt that this is a verse that underlines the non-difference of the sexes and - can it be dared to say? - by that their equality. The dare does not seem completely out of order. It is also well known that in the matter of religious duties and moral and spiritual development women and men are equal (3). Islam does not make distinctions between secular and religious spheres and therefore the religious duties may also be looked upon as the duty to make society work by taking on political, social or economic responsibilities (4). Even further one can argue that this is not possible without education (5)- which then becomes a right/duty for the Muslim women, and by that it becomes a violation of the Shari'a if and when women are denied this. The Quran also made a stop of the terrible use of burying newborn girls alive. Quran XVI, 58,59 and XXCI 8,9 (6). This may seem a small step looked upon with western 21'st century eyes, but it does however show the will to put an and to a custom that highly gave evidence of low regard of women. It is also worth noticing that the legislation against this custom has more than the moral and abstract value of putting baby girls on the same level as baby boys (or at least not so far beneath that they need to be put underground alive). It has the simple meaning of words extremely linked to a custom, practised during this period. It cannot be erroneous to believe that without the practising of burying girls alive a verse against it would not have been. This leads to the further assumption, that this verse is linked to the society and the time in which it was given. It cannot be denied that this legislation is completely and wholly connected with a certain social order and a certain time-period. And if that is so in this case, may it then not be so in others? Also marriage law changed with the new social and legal order. Before Islam there were no restrictions on polygamy - how many wives a man could have was entirely up to him with no restrictions whether he was able to treat them equally and fairly or not (7). In the Quran IV, 3 the number of wives a man may take is limited to four and if the man does not have the capacity to treat these four equally, he must contend himself with fewer women (8). Again one, who looks upon this with western 21' st century eyes only, may think that the progress is only a so-called one. But indeed this verse does improve the actual conditions under which women were living and it does take into consideration that it is only if the man is able to be fair to all wives, that he may have up to four. Before such restrictions were not known. Read in connection with verse IV, 129 that expresses the opinion that "You will never be able to be fair and just between women even if it is your ardent desire" it can be understood that generally polygamy is not legal, since no one is able to fulfil the conditions to treat all wives equally. The two verses have been read together like this by modernists (9) and in some Muslim countries polygamy is abolished altogether (10). It can sometimes be difficult finding positive aspects in some of the verses in the Quran if one is reading it with a feminist eye. Some of the verses are not exactly schoolbook examples of feminist readings. In looking into some of these it will be examined if there are solid grounds for proclaiming their link to surrounding social reality. Quran II, 228 says that "they (women) have rights similar to those of men over them in a just manner and men are a degree above them". This does not strike one as a declaration of equal thinking. The first part of the sentence seems worth to underline as often and as strongly as possible, but quit obviously the last part may cause some difficulty for anyone trying to find fertile grounds for feminism within and based on Islamic belief. It can be argued that this means that men and women have different duties because they have different capacities (11). Then however the question rises why the duties and capacities of men should be considered better than those of women. One view is that the degree referred to is the fact that men due to the Shari'a are obliged to maintain their wives (12). This is supported by the fact that the verse is to be found in a session of the Quran dealing with subjects of daily matters and doings. Then this is no longer a general abstract statement that on all points put women below men, but it is closely linked to a limited sphere of daily life and law. Moreover, if this is the case it is possible to go the step further, that as society changes, the obligation of the man to maintain the family may diminish, if women are maintainers too (since there is no rule that forbids women to seek employment when it is needed (13)and a changing social structure may be conceived as a "need"). If the manly legal obligation to provide for the women loses its factual content so does then the ideology that men are a degree above women. Another significant verse is the 282 of the second Surah regarding witnesses. The female witness does here equals half of the male - it takes two women to equal the testimony of a man, "so that if one forgets, the other may remind her". Does women in general have a bad memory? Or is the female memory only suited for grocery-lists (or perhaps not even that considering the fact that a list is needed)? Time seems to have proven these ideas wrong - ideas might it be added that are by no means Islamic, but in great quantity spread in the West too, and it is not such a long time ago, they were, more or less, done away with - more or less should be repeated. However some brilliant examples of women states-"men" and a lot of everyday managers, workers and artists just to name a few fields on which women have turned out to be quite successful and capable, demonstrate, that holders of these ideas are wrong - completely wrong. Then how explain this verse? It has been expressed as a possible interpretation, that the verse consider the "Scientific fact" that women "fall under psychological strains of the cycle that they have to endure, such as the symptoms during early pregnancy, antenatal and post-natal depression, the phenomenon of menopause and the psychological problems faced after miscarriage (...) We must also not overlook the fact that women are known to be more sensitive and emotional that men" (14). The first thing to note here is that when the first part of the quotation relates to so called scientific facts the last seems to put the knowledge of women's feebleness in the same category. When has it scientifically been proved that men are less sensitive or less emotional when it comes to judging facts (or anything else for that matter)? Assuming that it is so seems to insult men in a most outraging way. The same goes for the mentioning of depression after a miscarriage - does a father not mourn the loss of his unborn baby? Does a man not feel the pain of loosing a child? It looks like one is attributing an extraordinarily insensitivity to men, one they do not deserve. As for the rest it should be said that women are not in a constant state of pre-menstruation or pre/post-natal depression due to the fact that they are not constantly pregnant and that far from every pregnant woman suffers from these symptoms, neither are they in a continuing troublesome menopause - a period that does not cause constantly manifesting symptoms by the way. It might be that in a certain case a witness was a women suffering from psychological strain which makes her less reliable as a witness and then of course this should be taken into consideration, but since women are not constantly under such strain this cannot be the motive for the formulation of the verse. Further more it might as well be that a man is under a lot of psychological pressure, which might make him less reliable. He might have problems at work (as may the woman) he might have lost his new- (or un-) born baby or a lot of other things might preoccupy him. These are generalisations, which everyone may agree are totally and utterly unacceptable, and so are the ones made of women in the quoted passage. As mentioned elsewhere "Rather than criticising women, they are willy-nilly implicating the Creator, and if they believe that there is no defect in the Creation, then they cannot claim that women's emotionality makes them defective, and if they believe otherwise, then we need to enter a discussion on the fundamentals (usul) with them; their views on women are attributable to other belief systems than Islam and knowledge of God" (15). This is a verse hard to read as being favourable to legal equality - but throughout the examination of the legislation that the whole document should be read on the basis of the existing social reality of the time. With this in mind it can be concluded that the verse expresses the idea spread in the Arab world on the time of the Prophet's revelation, that women did not equal men on the political, social or economic fields - an equality that the Quran does not attempt to grant (16). As such the Shari'a does not proclaim equality of the sexes - but when looked upon in the light of the surrounding society it does on a whole try to improve the position of women. It might then be possible to put forward the argument that the overall - utopian - idea was to improve the status of the female sex (dare one suggest even to the point of total equality?) but influenced by the reality this was not put into the law, instead improvements were made where possible within the limits set. An evidence of the rather strong position given to women in the early Islamic period is the fact that they were praised both as disciples and authors of Hadith (17) a more influent position was hard to find at the time. It is beyond doubt that the Shari'a did put women on a better level than they were - at least if the idea of a growing patriarchal society (close to fully grown that is) was the reality in which Islam saw the day. Perhaps it was that changes were made as far as it was possible. When orthodox Muslims claim that the faith and law sees men and women as absolutely equals referring to the 35'th verse of the 33'd Surah (18) they do in fact in some way support what has just been written - undoubtedly however they would not agree on this point - in saying that a verse like this is universal and a guideline for how the rest of the holy law should be understood. That is, as a statement of the intention to make people see the sexes as equals. In underlining this verse they make a point out of how the Quran should be recognised as granting equal rights and obligations to women and men and in doing so, they do also say that verses differing from this line ought to be read in the light of this verse - that is, as evidence of the will to change the social reality to the better for the female sex. It has been risen as a critic of this verse that its formulation is "general and abstract" and that it does not "lay (...) down concrete rules defining equal rights of women with men" (19) and it is claimed that "To examine the real status of women, one should refer to other chapters and passages of the Quran". This view ignores the influence social circumstances may have had on the outcome of the law and instead of seeing the general wish expressed in the passage that can be used to grant women rights which they are currently denied, it dismisses this important opportunity because it is too "general and abstract" - the two exact qualities that makes the verse an universal declaration on men and women equality. It is however true that "The Islamic world is mainly men's world" (20) but this is mainly because at that time the world was the man's world. And it is extremely important not just to dismiss the possibilities that the Shari'a contains for improving the actual status of women in today's world by ignoring the influence the time had upon the creation of the law and by criticising the general paragraphs instead of seeing their opportunities when looked upon as universal truths for the Muslim community. The argument can be taken further by saying that Islam basically is a message of compassion and morals with the legal part taking a second place (21) and by noticing that in this light "the Quran is not primarily a legislative document, but rather the declaration of the fundamental Islamic ethic - the general moral norms it lays down with the regard to women are undoubtedly of equal or even greater importance than its specific legal rules" (22)It can then be claimed that "the idea of adapting the social precepts of seventh century Islam to a later age becomes feasible. Itjihad, interpretation, is an Islamic concept which permits exactly this kind of activity, and there is in theory no objection to it." (23). It does then seem a possibility to consider at least parts of the Shari'a as linked to a time gone by and then proceed by taking guide from the verses that give out moral standards to follow, in an attempt to improve the actual status of women in the 21'st century using Islam and Itjihad in a changing society yet again. The earlier InterpretationsThe problem of the interpretation is a key one when trying to understand why women find themselves in the situation of suppression. It is basically the question of how medieval jurists assigned a role behind veils and walls to Muslim women. The interpretations are thus extremely relevant because they may give an impression of how male power constellations have influenced women's position over centuries. The evolution of the seclusion of women can be traced reading the collections of Hadith. The authenticity of these have been a matter of discussions since far back (24) and it is thus a subject harder to work with than the Quran when the question to be settled is "what is the rights and place of women in the Shari'a?" The problem lies in the fact that not only may we be presented with a source of law that is not fully genuine but also that the Hadiths may be of a later date and thereby not only giving a wrong impression of what the Prophet and his immediate followers wanted to be the law, but also giving a wrong picture of the period, simply by giving the opinion of men from a later time. Studying the Hadith is though even in this case very useful. Perhaps it is not wholly possible to establish the exact date for every part of different collections of Hadiths, but the dating of the collection may help to give an idea of the evolution and change Islam went through over time (25). An example of this is how in the advent of Islam women travelled freely without the company of a male relative (the wives of Muhammad excluded) but by the time of Hanbal (d. 855) (26) this is forbidden (27). The examination of Hadith also shows that there was a vivid discussion of allowing women in the mosques - going from acceptance to disappearance as time went by (28). In the second century of Islam the women do no longer appear on the political and public stage (29). This cannot but be a consequence of the way the interpretation of the Shari'a had taken. A tangible evidence of what men preferred (past time?) is the change there is to be spotted in the role the "front-figure" women had. From being independent political beings, the preferred women became the "Jariya" - a woman bought as a courtesan (30). In the generations just after the Prophet the virtues admired in a woman was physical beauty, pride of being Arab, quick mind and the capability and willingness to challenge her husband (31). The duty of the Jariya is to obey - indeed this is her whole function (32). The Caliphs preferred these women on a personal basis, with the result that the women in public positions, that is women in the upper and political class, were no longer out-speaking strong beings, but bought silences. This may have been due to the personal preferences of the leading class men - but it had a farther-reaching effect, because it can most probably have been one of the facts that brought women away from political life. The ideal shifted and so did the role of the female character. This may have been different if the position of women had been generally stronger on a broader ground from the very start than it was. The society had changed into a patriarchal one for some time and in that light the revelations and ethic of Islam were to be interpreted. During the first centuries of Islam the interpretative activity was impressive - of course the Quran in itself was not extensive enough to regulate the new Muslim Community and juridical work was needed. This is by far an ordinary practise and it is done daily by lawyers and judges in the Western world today. The written word of a paragraph cannot stand alone, that goes for itself and naturally the interpreters have an even more extended task when the law in question offers to change a whole society into a new form. The essential problem with this interpretation was that there was no longer anyone to ask for guidance as when the Prophet was still alive or at least his followers who had seen and heard him and thereby gained some inspiration. It is today considered - by some - that this interpretation and evolving of the law distorted the true message, given by Muhammad, through personal and vested interests (33). Looking at the theory elaborated so far it does seem clear that the ethical message of equality lost its power during this interpretation, and one needs simply look at the factual position women were put in, to see that somewhere along the line something or someone made the moral bid regarding women turn into quite another shape. The crucial factor in this whole area of legal and sociological speculation is that these interpretations have become accepted as law - the views of the scholars have been understood as the commands of Islam instead of the commands of Muslims (34). It is a quite human reaction when encountering new conditions of life to turn towards the known - indeed how can one understand and explore new experiences if not on the background and with the knowledge one has already accumulated during one's past and during one's ancestor's past in the sense that their knowledge has been handed down. It was then understandable when jurists used pre-Islamic criteria in developing Islamic jurisprudence (35). As a consequence of this, the specific rules regarding women in the Quran were naturally followed, but the general moral and ethic rules were not transformed into legally binding rules (36)probably because of the stronger inherit from the customary patriarchal society in which light - or shades as one prefers - the new society was formed. In these circumstances the ideal woman took shape - an ideal that suited the dominating class and their old-fashioned ways of thinking about the female role in the social structure. This could happen because the religious functionaries and jurists worked closely with this leading class and therefore saw it as their best interest not to go too much against them (37). Since women initially kept an acceptable access to the political scene it would be logical to ask where female interpreters were when the status of women slowly diminished. Of course the most known female interpreter is Aish'a and her authority is indisputable - even among male traditionalists. But also others - less famous - are recalled by an acknowledged collector of Hadith from the 14'th century (8'th Muslim century) who underline that he has never heard of a woman accused for falsifying a Hadith (38) - unlike men. Regardless of this there are few female interpreters in the story of Islam and those there are, have been kept in the periphery of legal activity (39). The answer to why this may be can be a very simple one that is that in the already largely patriarchal society the women who were strong enough to make their voices heard in the beginning of Islam had harder and harder conditions. The social development bore towards a male dominated social structure and the women were not enough to fight this, especially since the political elite was quite satisfied with this development and was enforced by interpreters who saw little advantage in going against the men in power. It does seem that the foundations for a feminist reading of the Islamic law is possible - even without much difficulty, technically that is, not socially or politically. The grounds on which to move on must then be the discovery that Islam in its essentials give an ethic and moral message on equality between the sexes, and that it even in its specific passages that may not always seem other than patriarchal, tried to improve the general position of women within the limits that the society of the time set. The impact from the surroundings may have been even greater on the following interpretations of the law with the result that women's status diminished. This can today be used as fertile basis for reinterpreting the Shari'a going back to the primary sources - without reinventing it. Bibliography
Notes1. Fawzi p 4 2. Yamani p 92 3. Yamani p 79,92 +Hussain p 21 4. Yamani p 93 5. Yamani p 93 6. Hussain p 15 7. Hinchcliffe p 13 8. Hussain p 16 9. Yamani p 101 10. Hinchcliffe p 25-35 11. Yamani p 93 12. Yamani p 82 13. Yamani p 94 14. Yamani p 96-97 15. Yamani p 17 of ch. 13 16. Hussain p 18 17. Rebellion p 92 18. Naji p 52 19. Naji p 53 20. Naji p 55 21. Yamani p 81 22. Beck p 37 23. Yamani p 81 24. Afkhami p 62 25. Hussain p 14 26. Coulson p 71 27. Hussain p 35 28. Hussain p 36 29. Rebellion p 83 + Jonas Svensson p 149 30. Rebellion p 85-87 31. Rebellion p 86 32. Rebellion p 87 33. Hussain p 5 34. Yamani 35. Beck p 38 36. Beck p 38 37. Hussain p 5 38. Afkhami p 62 39. Afkhami p 61 |
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