Women & Islamic Law – A

May 17, 2020

Women and Islamic law

Since the age of Islamic reformism in the nineteenth century numerous attempts have been made to improve the position of women in Islam by reformulating sharia law in the light of social change and modern developments. And yet, to our knowledge, not a single study has tried to propose legal reforms by exploring the dialectical relationship between ‘straightness’ and ‘curvature’ in human legislation and by studying this relationship in consideration of the human natural disposition, al-fitra. We propose therefore to start our investigation into the possibilities of legal reform with the notion of Allah’s limits, which not only stipulates boundaries (straightness) but also allows human legislation the freedom to move and change (curvature). We can see three major reasons why previous attempts to radically reevaluate the situation of women in the Arab-Muslim world have failed:

In their study of the ‘mother of the book’ (umm al-kitab), jurists have failed to distinguish between verses that stipulate Allah’s limits and verses that are purely informative and legally nonbinding (suggesting only good practice). Also, in their study of Muhammad’s Sunna they confused compulsory with optional categories of law. In more general terms they simply overlooked the existence of limits in Islamic legislation. In defense of medieval scholarship, we might say that their understanding of hudud Allah was bound to be rather primitive and that their scholarship could not significantly improve before the introduction of Isaac Newton’s revolutionary theories, which gave Allah’s limits a solid mathematical underpinning. It was only after the introduction of Newton’s theory of ‘limits’ that forthcoming generations of scientists were able to study phenomena in nature and link them to the limits that Allah has set for human societies. However, current Muslim scholarship cannot resort to this excuse. After centuries of progress in the natural and social sciences, we are now able to apply the legal impositions of what is ‘straight’ and what is ‘curved’ in line with what is inherent in nature and the disposition of human beings, thus allowing us to embark on a truly contemporary and enlightened assessment of the situation of women, based on our rereading of the Book.

1. Feminists have failed to envisage a struggle for the liberation and emancipation of women that goes beyond the time of Muhammad’s life. In their attempt to prove that Islam is not misogynous, Islamic feminists have too often focused solely on how Muhammad’s mission has liberated women in ancient Arabia, while more

or less ignoring the plight of Muslim women ever since. By doing so they have unintentionally suggested that the liberation of women achieved under Muhammad was the optimum of emancipation possible. And since during Muhammad’s time women were not working as judges and preachers and since they did not occupy high political positions, this was seen as the maximum amount of women’s liberation that we, today, are not allowed to further extend. This ignores, of course, the fact that the position of women in Arabian society was, just like slavery which initially had to be endorsed, something that did not allow radical changes or, to put it in evolutionary terms, something that did not allow a sudden ‘combustion of entire time periods’. Just as a sudden abolition of slavery would have destroyed the social fabric and the prevalent means of production in ancient Arabian society, a radical repositioning of women’s roles would have undermined the social stability that Muhammad so desperately wanted to achieve with his new state. The society which Muhammad created was Islam’s first but not only model—Islam’s first fruit, so to speak. Muhammad’s political and legal decisions were deliberately positioned between Allah’s limits and constantly adapted to the spirit of his time: at times he enforced Allah’s limits vigorously, and at other times he allowed old conventions to continue if their practices did not violate Allah’s law. Such conventions, however, prevented women from doing what they would do today because it severely limited the opportunities of women to fulfil public roles. In some areas, however, for example as advisors to political leaders, in community administration, or during military campaigns, the remarkable public positions of aisha or Khaula bint al-Azwar  demonstrate that the new religion inherited a structural imbalance but did not exclude women from public affairs per se (i.e., only because they were women). One should not forget that the first death or as widely known martyr for the sake of Islam was Sumayya, a woman. And yet, we must not think that women’s emancipation ended with Muhammad’s reform of ancient Arabian society. What is needed today is to understand his messengerhood and the verses of the ‘mother of the book’ in their dual capacity to both absorb the prevalent historical conditions of Muhammad’s time and encompass subsequent developments that allow much greater emancipation. Muhammad’s reforms were only one small (albeit not insignificant) part of a much wider scheme of women’s liberation.

2. Exegetes have failed to correctly identify the meaning of the Arabic term nisa”, which has often been too narrowly understood to mean ‘women’. The importance of redefining this term is immediately apparent when we look at the following two verses: Fair in the eyes of men [للناس] is the love of things they covet: النساء و البنون] [two words thus written in translations incorrectly as] women and sons; heaped-up hordes of gold and silver; horses branded (for blood and excellence); and (wealth of) cattle and well-tilled land. Such are the possessions of this world’s life, but in nearness to God is the best of the goals (to return to). (al-Imran:14) [sic thus it’s understood again as ] Your wives are as a tilth unto you. So approach your tilth when or how you will, but do some good act for your souls beforehand; and fear God. And know that you are to meet Him (in the Hereafter), and give (these) good tidings to those who believe. (Baqara:223)

If we still insist, as generations of exegetes did, that can only mean ‘women’ or ‘wives’ we have entered, hermen-eutically and intellectually, a cul-de-sac that cuts us off from a progressive flow of history. In both verses (3:14 and 2:223), if nisa” is rendered as ‘women’, they can only be seen as no more than a commodity for men (‘the possessions of this world’s life’) or a piece of land to be tilled (‘when or how you will’).