By Hans Faye, ’14 Originally written and published in the 2013-4 edition of the Meridian Journal
Islamic law emphasizes the biological and sociological differences between men and women, as the law perceives them. A particular focus is placed on complementary roles between man and woman, producing a balance that rejects the idea of equality achieved through identical gender rights. Within other systems of gender relations, such as those adopted by modern western legal systems, the Islamic approach to gender equality may seem lopsided. To avoid extensive comparison between western and Islamic legal systems, the laws of which are coherent within their respective frameworks, a more utilitarian approach may be taken to assess the equality of gender rights. This approach is to view gender equality through the lens of social autonomy and social respect as exercised through power in the public sphere. What becomes apparent is that women are comparatively disadvantaged in these two categories as opposed to men, but there is some evidence to the contrary, and these differences can be explained by contextual evidence and sociological developments.
The Complementarity of the Sexes
To understand Islamic law from a gendered perspective, one must turn first to the concept of ‘complementarity of the sexes’. Complementarity disagrees with the modern western idea of gender equality as identicalness of rights between the sexes. Instead of imparting on men and women an exact sameness of gender roles and rights, Islamic law upholds the idea that men and women are inherently different biologically, and so the two genders must have different rights and roles in society as well. In her analysis of comparative legal frameworks, Murtaza Mutahhari claims that,
“..The dispute between, on the one hand, those sections of the people who support Islamic rights and, on the other hand, those who support Western systems is about the identicalness and exact similarity of the rights of women and men, and not about equality of rights”(Euben, 2009).
In application, the distinction between male and female rights can be seen in Islamic inheritance laws. Absent any social background information, inheritance laws appear highly favored towards men. As enumerated in Qur’anic verse 4:11-12, inheritance is divided, “…to the male the equivalent of the portion of two females”. As a result, women traditionally receive half the inheritance of men in Muslim society, but there are social reasons to explain this apparent inequality. In traditional Islamic society, men were expected to carry the entire financial burden of the household, while women lived the traditional role of housewife. Therefore, men were more likely to spend their inheritance supporting the family, while women were entitled to save their inheritance as a social security.
Autonomy in Marriage and Divorce
One aspect of law where the treatment of men and women differ is in their status as autonomous agents capable of their own reasoning and independent decision-making. For both men and women, the ‘guardianship’ of his or her father was an expected part of youthful development. The father, or grandfather in the father’s absence would serve as Wali for the child, by overseeing the child’s decision-making with full ‘veto-power’ to guide the child towards adulthood. For men, the guardianship ended at adulthood, when a man would attain full autonomy. For a woman, the guardianship would continue to apply to her marriage contract, which was overseen and approved by her Wali. The different schools of Islamic law agree on this matter, with the exception of the Hanafi Madhhab (Tucker, 144). This rule is illustrated by Shafi’i Islamic law, which holds the opinion that “The marriage agreement is not valid without a guardian…”(Al-Misri, 518). Without her guardian’s consent, a woman could not marry the man she had chosen, which limited her autonomy. However, women were only half of the marriage equation, and men were beholden to the decision of the guardian of their bride-to-be. Therefore, a man did not have complete autonomy either, because he was legally required to concede if the woman’s guardian refused his offer for marriage.
Laws concerning divorce are another area where men and women differed in their legal autonomy. Evidence from seventeenth-century Ottoman Egypt suggests that a woman could attach stipulations onto her marriage contract to safeguard certain rights. For example, a marriage contract might include stipulations that the wife could visit her friends whenever she wished, or that the wife must receive a certain degree of upscale clothing or housing (Tucker, 62). However, these legal stipulations suggest that in their absence, the wife may have been subject to whatever decisions the husband made for her. As a rule, only men could initiate divorce, though in practice courts were known to occasionally allow women ‘Tafriq’, a type of divorce without the husband’s permission (Tucker, 92). Otherwise, women had to convince their husbands to allow them a divorce. The most costly way for a woman to convince her husband to agree to divorce was called a Khul divorce, whereby the wife would agree to give back to her husband the expensive dower she might otherwise keep as a social security. The interests of the wife would be best served by the most common type of marriage called Talaq, because it allowed her to keep her dower after legally separating from her husband. According to classical Shafi’i Islamic law, a man could pronounce a Talaq to divorce his wife for any reason, but it was unacceptable, “For a woman to ask her husband for a divorce when she [had] not suffered any harm from him”(Al-Misri, 983). In this sense, women were limited in both requesting and enacting divorce, whereas men were not limited in either respect.
Autonomy in Property Rights
Islamic law provided women with a source of independence through property rights. A common Hadith is cited which grants both men and women the right to property, whereby The Prophet declares, “Verily, your blood, property, and reputations are as inviolable to one another as the inviolability of this day, this month, and this city of yours” (Al-Misri, 668). This Hadith came to be applied to both sexes, as demonstrated by the records of Ottoman-period courts. The courts regularly ruled in favor of women who claimed that their husbands owed them money in one form or another, though the records cannot prove that the rulings were actually enforced (Tucker, 105). However, it can be said with certainty that a wife was entitled to property at the beginning of her marriage in the form of a dower, called a Mahr. This property was considered as a form of social security, which increased a woman’s autonomy by preventing her from destitution after divorce. A wife was also entitled to, “Maintenance according to a certain standard of living in keeping with the economic situation of her husband…”(Tucker, 52). Therefore, the wife of a rich man was entitled to relatively lavish maintenance compared to the wife of a poorer man, a fact that seems both fair and realistic.
Social Respect as Power in the Public Sphere
Just as Islamic law treats men and women differently in marriage, men and women are also given a different degree of respect in the public sphere. A prominent place where differences may be found is within the Ottoman courtroom. In terms of juristic leadership, “We have no evidence that women were ever judges, assistant judges, or scribes” (Tucker, 158). This difference can be taken to suggest that women were considered unworthy to serve in the respected public leadership position of court judge. Furthermore, two female witnesses were equal to one male witness in court, and women rarely testified (Tucker, 158). Both of these cases demonstrate that women had no prominent role in the adjudication of the law, which leaves these positions of power and respect to men alone.
The history of Islamic law provides an alternative example to suggest that women should be respected as equals to men in social status. In the early history of Islam, “Aisha, one of the prophet’s wives, was a great muftiya (counselor on religious matters, among which interpretation of the Quran)” (Sadiqi, 2003). There may be alternative explanations why Aisha was so highly respected and capable of interpreting the Qur’an. However, the fact that she was a woman with these revered capabilities suggests that her gender did not affect her social status. The Qur’an became a prominent source of legal doctrine, so a woman’s capacity to interpret the Qur’an suggests the female ability to adjudicate. This discrepancy between different time periods suggests that there were other factors involved in the evolution of legal norms regarding gender from the time of The Prophet to the Ottoman period, which did not ultimately consider the status of Aisha as sufficient to necessitate the role of women as judges or witnesses of equal status with men.
The popularity of Qur’anic verse 2:282 for use in court adjudication may offer some insight, because it states that two female witnesses will suffice for one male witness, due to the nature of female “forgetfulness”. A possible explanation for this development is proposed by the scholars Rida and Al-Hadad, who suggest that the widely cited Qur’anic verse 2:282 does not claim that women are inferior legal subjects to men, but that when the Qur’an was written, “…It was [the female] lack of familiarity with business transactions that affected their memory” (Tucker, 162). So it appears that the social framework underlying Islamic law may offer a more realistic explanation to the roots of an apparent inequality.
Conclusions and Reservations
Islamic law treats men and women differently as legal subjects, within a framework that is ideologically distinct from any western legal system. The idea of ‘complementarity of the sexes’ is contingent on the idea that equality is something achieved not through identicalness of rights, but through cooperation between different sets of rights. Therefore, male and female autonomy differ under the auspices of Islamic law. Females have less autonomy compared to males in many of the instances discussed above, but women were not without a significant degree of autonomy within the framework provided by Islamic law. Differing evidence between the time of The Prophet and the Ottoman period suggests a more historical explanation that the roots of Islam are less male-centric than the Ottoman courts appear to have been. However, throughout this discussion only certain cases were mentioned during certain time periods, which leaves out a considerable amount of evidence. Therefore, it is most appropriate to judge the evidence considered as a sample of the much larger trends throughout the Muslim world, rather than as overarching trends, which this sample may not necessarily represent.
- Al-Misri, Ahmad Ibn Naqib, and Nuh Ha Mim Keller. Reliance of the Traveller. Beltsville, Maryland: Amana Publications, 1991,1994. Print.
- Euben, Roxanne Leslie, and Muhammad Qasim Zaman. Princeton Readings in Islamist Thought: Texts and Contexts from Al-Banna to Bin Laden. Princeton: Princeton UP, 2009. Print.
- Pickthall, Marmaduke William, and ʻArafāt Kāmil. ʻAshshī. The Meaning of the Glorious Qurʼan. Beltsville, MD: Amana Publications, 2005. Print.
- Sadiqi, Fatima. Women, Gender and Language in Morocco. Brill Academic Publishers, 2003
- Tucker, Judith E. Women, Family, and Gender in Islamic Law. Cambridge, UK: Cambridge UP, 2008. Print.
Hans Faye majored in International Affairs and graduated from Lewis & Clark in Spring 2014. He will be a Peace Corps volunteer in Morocco beginning January 2015.