Women and islamic law – B
A first step to avoiding such misogynist renderings is to accept the fact that, in speaking of ‘women’ and ‘men’, Allah uses different terms when He refers to them as:
- a) biological beings, either male or female, or
- b) when He refers to them as cultural beings who possess morality, consciousness, and the ability to rationally reflect on their social and cultural environment. Examples are as follows:
That He did create in pairs—male [dhakar] and female [untha]. (Najm:45)
And of every thing We have created pairs [zawjain]: that you may receive instruction. (Dhariyyat:49)
O mankind [sic]! [يا ايها الناس] We created you from a single (pair) of a male [al-dhakar] and a female [aluntha], and made you into nations and tribes, that you may know each other—not that you may despise (each other). Verily the most honored of you in the sight of God is (he who is) the most righteous of you ( Al-hujurat:13).
We have honored the sons [sic][bany] of Adam… ( Al-Isra”:70)
In the first and second verse Allah speaks about His creation in pairs which include not only men and women but everything that is either male or female, and that includes animals and plants that unlike humans do not possess the capacity to think and reflect.
Biologically, women share their sex with other female creatures, by receiving the semen of the male species, by becoming fertilized by the male sperm, by giving birth after a period of pregnancy, and
by nursing their progeny. Men are of the opposite sex which they share with any other male creature on the earth. They are the biological partners (zawj) of females with whom they form a relationship of natural correspondence for the purpose of procreation.
In the third and fourth verse, Allah does not speak about males and females but about humans (men and women) who, by having Allah’s spirit breathed into them, are able to think rationally and act consciously. In all those instances in which Allah addresses humans as rational beings the Quran starts with the exclamatory ‘O humankind!’, implying that no distinction is made between males and females. In other words, Allah ‘honored both sons and daughters of Adam’, regardless of their biological status, on the basis of the ‘good deeds’ they perform for the benefit of all humankind.
Provided that the right historical circumstances are given, we believe that women are as capable as men to occupy leading positions in state and society. It is our endeavor to completely revise the notion that men are inherently superior to women because women lack rationality or because they are spiritually inferior to men.
Toward a Contemporary Understanding of fiqh jurisprudence for Women
Our aim is to correct these three failures of traditional jurisprudence and to present a truly contemporary understanding of fiqh jurisprudence for women, based on the notion of a lex liminalis in Islamic legislation and on the belief that the legislative verses of the Book are valid for all time and in all places, allowing both flexibility and elasticity, the development of history and the demands of human society. In contrast to the legal codex that Moses brought to his people, which contained more than 600 concrete laws or legal injunctions, the legal verses of the Book contains less than a tenth of this number. The reason for this sudden reduction in the number of legislative verses is, as explained previously, the change in the nature of Muhammad’s messengerhood: from a legal system where all laws are specific and punishments certain, to a legal system
which only provides a universally applicable legal framework in the form of upper and lower limits (straightness), between which legislators formulate (diverse) particular laws (curvature). This new legal system works like a field whose borders provide the outer boundaries between which human legislation takes place. In some instances, laws may not even touch these boundaries, in other instances
boundaries may be touched but not transgressed. And when the Book states that ‘these are the limits (imposed by) Allah…’ and warns people not to ‘disobey Allah and His messenger and transgress His limits…’ it is clear that His intention is to declare the limit-based character also of Allah’s law of succession.
We will observe three fundamental principles in determining a law that moves between the boundaries of God:
- The legal instrument of analogy (qiyas) must only be employed if comparisons are based on what is empirically manifest (shahid ) and not, as traditional jurists claim, on what is hidden (الغائب): that which has its root in the past and cannot be proven empirically.
Acceptable empirical data are, for example, statistics about current birth rates, the percentages of women currently employed, or the distribution of wealth and the per capita income of a society’s current population. These data constitute the external criteria (of credibility) from which textual analogies are drawn.
- Internal credibility is achieved through analogies and comparisons between textual passages of the Book based on the dialectical notion that underneath the thematic unity of verses and suras an ideational polarity of mutual opposition and duality exists.
- The verses of the Book are never repetitive or, worse, redundant.
The divine text does not allow synonymity between words. In cases of textual ambiguity or grammatical inconsistency, it is always a word’s semantic meaning that explains and determines a word’s occurrence in the text (and not style, rhyme, or other rhetorical considerations).
- We believe that ijtihad must be
performed in all legal areas and that every ijtihad should tackle the explicit legal text passages (نص) that the Book provides, following our maxima that ‘there is no ijtihad outside a نص text’.
With the help of these principles we will now reenter the legislative arena and explore issues such as inheritance, polygamy, guardianship, dress codes for women, and other issues of family law.