Saturday, March 3, 2012

Islamic Law and Women - Part I: Introduction

I'm currently writing a paper on Islamic feminism and Islamic law, and so I'm reading what I find very troubling things in Islamic law, such as early Muslim scholars'/jurists' view of women, particularly in marriage. Understandably, the concept and role of marriage back then were much different than what they are today for at least the western world, and so when we come across views that deem marriage a sort of a kingdom that's headed by the husband (king) and the wife is not the queen but the caretaker of that kingdom (household), we get upset. But this isn't actually what I'm troubled by: it's how the jurists saw me (a woman) as almost completely incapable of making a decision on my own because I lack the intellect to do so. I'll give many examples of this in the upcoming posts, which will be a series of posts on Islamic law and women, but for now, lemme give you a brief intro to what I'm doing and where I'm hoping to get with this.

Some years ago, my sister and a (Muslim) classmate of hers were having a discussion on some aspect of Islamic law. When she expressed a difference of opinion, the classmate asked her, “Have you ever read Islamic law?” – as though Islamic law is a sourcebook that you can turn to, a book at all, or a guide, something that answers all of your questions.

(Un)fortunately, this is not the case: Islamic law is not a sourcebook; it is not published or codified in one text, and it does not have answers to all of our questions. Yes, it may have answers – but if anything, they go like this: “Well, according to Scholar X, this is the case, but according to Scholar Y, this is the case.” In other words, one really can’t argue that there’s one fixed solution or answer to question problem or question. And despite the claim that the doors of ijtihad have been closed since the 10th century (ijtihad = independent reasoning, or re-interpretations of a certain or all Islamic rules/guidelines, even the Qur’an), Muslim scholars have discussed the same issues – and offered different viewpoints, often contradicting each others’ – from the 7th century until today. Yes, the doors to ijtihad are believed to have been closed, but that doesn’t mean the debates have been closed, and many scholars see the illogicality in this claim and thus refuse to submit to it, refuse to let it silence their thoughts. 

Islam’s Sources - what "Islam" actually is
We are always told that Islam = the Qur’an and hadiths, that the Qur’an is the first, ultimate source of Islam and then come the hadiths.  In reality, however, this isn't completely true. The Qur’an plays a very minor role in our lives and in Islamic law, and I think this is because the Qur’an is very ambiguous and extremely difficult to understand. This isn’t to say that the scholars/jurists never did understand it – no, they did. But most of their opinions (which later became Islamic law) are not grounded in the Qur’an, most of the discussions they held among each other and that they wrote down were practical issues that came up and needed to be addressed. Unfortunately for most of those issues, they became the norms of Islamic law and now, one is not allowed to disagree with those opinions of the scholars that became majority at that time.

So, what exactly is "Islam" or Islam's sources? Mostly the early (and partially the medieval) Muslim jurists' opinions, to a lesser extent the hadiths, and to an even much lesser extent, the Qur'an. To believe that Islam = Qur'an is completely untrue, and it's not even mostly hadiths. I cannot and I am not dismissing the merit of these scholars, however: I acknowledge their intelligence, often their humility (but not always), and the extreme care they took while forming opinions. So their opinions aren't "just" opinions -- they are the basis of Islamic law. They are, in fact, facts.

I’ll give many examples in upcoming posts, but for now, consider this.

What does the Qur’an say about the whole “eye for an eye” issue? One would think it’s very clear and easy to comprehend – I mean, all there is to it is that you do onto others what they do onto you (unless you choose to forgive them, which is the better option and God will reward you for your patience and forgiveness), right? Wrong. If that’s so, then why is it an entirely different story in Islamic law? Islamic law looks at the gender, social ranking (class, status), religion, freedom or its lack thereof, age of the person killed. This becomes especially important when the blood money is concerned – i.e., when the victim decides to forgive the perpetrator but still demand some sort of recompense for the damage caused.

You know how the scholars (and ordinary Muslims) tell us that the whole “eye for an eye” doesn’t imply in cases where the effects might be worse for the initiator? For example, if Person A pokes Person B in the eye and his eyeball comes out of the socket, Person B is not allowed to do the exact same thing to Person A because of other results that might ensue from the revenge (such as possible damage that may be caused to the brain or the head). So, how do we know this? Because the scholars figured it. (However, the Qur’an makes it very clear that it’s best to forgive – it’s just that it’s realistic enough to understand that it can’t demand everyone to turn the other check, requiring everyone to forgive their criminals.)


[Importantly, let me point out that the "eye for an eye" verse can be read as a law that was specific to the Jews, since the introduction of that verse should not be ignored. And it's also been argued that that verse is talking specifically about murder cases. More on this later.]

Hence, a slave is not worth the same as a free person; a woman is not worth the same as a man; a homosexual is not worth the same as a heterosexual; a “normal” (heterosexual male/man or female/woman) is not worth the same as an intersex individual or any other sexual minority; a rich person is not worth the same as a poor person; a child is not worth the same as an adult. And so on. (I’m not deciding whether this should be the case or not; I’m only stating what it is according to Islamic law.) Interestingly, the Qur’an does not seem to make any reference to non-female and non-male members of the world, such as inter-sex individuals, and so for one to claim that the Qur’an covers every single topic in the world is an erroneous statement. One wonders, for example, what portion of the inheritance they are to gain, since the Qur’an recognizes only daughters and sons, no sexes/genders that fall in between. (And, contrary to popular opinion, inter-sex individuals do exist, and I’m referring here to those people who have neither or both the male and female reproductive organs.)

So, next time someone tells you that “in Islam, …” ask them what “Islam” refers to in that context. It can mean the Qur’an only, hadiths only, the scholars’ opinions, the consensus, a norm in a Muslim society or Muslim societies, the opinion of only one madhhab or all four, or even some reforms in a Muslim state (e.g., whether a married man can have another wife without his wife’s consent or knowledge).

Coming up in this series:

Part II: Origins of Islamic Law
a) Background/context
Part III: Sources of Islamic Law
Part IV: Women in Islamic Law
a) A woman’s Consent in a Marriage
b) the dower and how Islamic law sees it (caution: the Jurist/scholar al-Shafi, founder of the Shafi School of thought, termed the dower “price of the vulva.” The dower is the gift (usually money or jewelry) that the groom gives to his bride at the time of the marriage, and although it’s supposed to be given before the consummation of the marriage, some scholars say it’s okay if the husband gives it after the marriage. And whereas most Muslims today insist that the purpose of the dower is so that the wife will have enough to live on in case she gets divorced and doesn’t have a job or in case her husband dies and she has no other reliable financial support system, the truth is that, according to the early Muslim scholars, the dower is what gives the husband full control over his wife’s sexuality: he cannot have sex with her until he gives her the dower. Yet, what does the Qur’an say? This: And give unto the women (whom ye marry) free gift of their marriage portions; but if they of their own accord remit unto you a part thereof, then ye are welcome to absorb it (in your wealth). (Qur’an, 4:4) In other words, if the woman does not want to get the mahr/dower from her husband, it’s perfectly all right. But because Islamic law believes that the sole purpose of the dower is for the husband to access his wife at his delight, whenever he wants regardless of whether the wife is in the mood for it or not, it makes it obligatory for the husband to give the wife her dower. But I’ll discuss this in detail when I reach this section of Islamic law.)
c) Divorce
d) Child Custody
e) Punishment for Women Apostates (versus that of men apostates)
f) the jurists on the woman's dress code

Part V: The Role of Islamic Feminism in Interpreting Islamic Law

Feel free to offer your opinions as well as to correct me wherever I am wrong. I will appreciate it!
But bear with me - I have a lot to say, and I need to get it out of my system. I'll try to provide references for every claim I make whenever I believe it's necessary, but if I don't do so in cases where the readers deem necessary, please don't hesitate to point it out to me.

Thank you!

12 comments:

  1. Do you agree with the claim that the doors of itjihad has been closed since the 10th century? Because I didn't, as a Muslim, it was one of the main reasons why I converted to Islam, because I was introduced to a group of Muslims in Denmark, who believed strongly in itjihad. (I wrote about that here: http://beckyskaleidoscope.blogspot.com/2010/08/muslim-manifesto.html )

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  2. Hi, Becky! Thanks for the link! Wow - that's rich!

    No, I don't believe that the doors to Ijtihad are closed. I fully believe in Ijtihad, and I don't think Muslims will be able to progress at all without pursuing Ijtihad. If Islam is indeed for all Muslims of all times, then it makes no sense to let it be frozen in one time period and one society and not re-view it in different time periods and different societies. We can be united without seeing and practicing Islam the exact same way -- not that all Muslims have ever seen or practiced Islam the same way in even on community let alone throughout the world.

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  3. Hi! I'm Lat.This is one of the topics I found interesting since I read Kecia Ali's articles on Islamic Law and women a long time ago.I'm looking forward to reading your other posts as well.Thank you for sharing this with us :)

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  4. Hi there, Lat :) Welcome to the blog, and thank you so much for your comment! I'd be interested to hear your responses to Kecia Ali's scholarship. Perhaps I should mention that she's been inspirational in my pursuit of gender and Islamic law!

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  5. I'm glad, and I agree with you.

    Yeah, it's some powerful stuff, if it hadn't been for that group, I very much doubt I ever would've converted to Islam, they showed me that it's okay to question status quo, and not just accept whatever you're told. This is also why I, right from the beginning, tried to learn things for myself, which of course annoyed a lot of people (including my ex, who didn't want me to wear hijab, never asked me to, but got pissed when I told him I didn't believe it was mandated, and then proceeded to send me an email with a bunch of hadiths about how women who didn't wear hijab would burn in hell. Of course he didn't like it either when I then told him I didn't believe in hadiths...)

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  6. Wow, superb blog layout! How long have you been blogging for? you make blogging look easy. The overall look of your website is great, as well as the content!.
    Web design services
    Learn online quran

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  7. I came to this blog looking for some answers, but it seems like (after reading multiple blogs on muslim feminism) the only thing I found were more questions and doubts.
    I'm wondering whether Muslim feminist is possible, after all. Maybe it's just "trying to be a Muslim feminist."

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    Replies
    1. Thanks for dropping by, Honey Bee!
      There is actually a lot of rich literature on Islamic feminism and Muslim feminism. You can google search them, type them in Amazon, or even Youtube it. A simple "Islamic feminism" or "Muslim feminism" or "justifying Islamic feminism" or "understanding Islamic feminism" or "Islam from a feminist perspective" would suffice :)

      Best wishes! I hope you find the answers that we're all seeking!

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  8. Interesting piece...

    I don't believe the doors to ijtihad has ever been closed at all. As a matter of fact it is very much alive and is encouraged in Islam and by Allah himself - we are encourage to think, ponder, reflect and question and not to accept things blindly (this is our right). So I find i hard to understand how some Islamic sects outright reject ijtihad - makes no sense to me; and yes the Qur'an doesn't deal with every tiny aspect of our lives today, that's why Islamic jurisprudence uses other sources of law such as hadith (which by the way cannot be solely relied on since it's third party reports and there are many innovated hadiths).

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  9. Islam gives lot of protection to the women which we think that this is congested mind theory which is not true here is good news for Muslim that they are offered to get Cheap Umrah Packages to do their Islamic obligations.

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  10. I'm waiting anxiously for the next parts!

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  11. Thanks for your responses, everyone! I do intend to update it but I haven't had a chance in the last several months. InshaAllah, over the summer :)
    I appreciate the readership!

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