Modern Muslim women face challenges when it comes to Muslim Family Laws, namely marriage, divorce and inheritance. Today Muslim women participate in almost all areas of the workforce, willingly and unwillingly, contributing to the welfare of their family and thus society as a whole. This changed scenario is however not met with an equivalent change in the Muslim Family Laws, which still retains and favors the classical period’s formation of laws. The male as then and now is still regarded as the superior provider and maintainer of the family but provisions need to be made in order to recognize and appreciate the labor of the female member in the family and country as well. This cannot be done if reformations to the Muslim Family Laws are not undertaken.
Often Muslim women come across a brick wall when questioning these laws and are told that they are God’s laws and therefore divine and immutable. Those who sought to do otherwise are labeled as rebels against God, being weak in faith or thought far worse. Scholarship research shows that Muslim Family Laws are not divine but man-made. They are ‘juristic constructs shaped by the social, cultural, political conditions within which Islam’s sacred texts were understood and turned into law.’(1)
Fiqh and it’s formulation
In Ziba Mir Husseini’s paper, Towards Gender Equality: Muslim Family Laws and the shariah, she has this to say about fiqh,
“Fiqh which literally means ‘understanding’ denotes the process of human endeavor to discern and extract legal rules from the sacred sources of Islam that is the Quran and the Sunnah. In other words, while the Shariah is sacred, eternal and universal, fiqh consisting of the vast literature produced by Muslim jurists is like any other system of jurisprudence which is human, temporal and local. Fiqh is often mistakenly equated with Shariah, not only in popular Muslim discourses but also by specialists and politicians and often with ideological intent, that is what Islamists and others commonly assert to be, a ‘Shariah mandate’ (hence divine and infallible) which is in fact the result of fiqh, juristic speculation and extrapolation (hence human and fallible).”
She contends that patriarchal interpretations of the Shariah can and must be challenged at the level of fiqh which is the human understanding of the divine will. What concerns us should be the concept of justice which is believed to be deeply rooted in Islam’s teachings and in the ‘basic outlook and philosophy of the Shariah’. What constituted justice in the earlier eras do not necessarily mean the same for ours and thus the results are not accepted wholeheartedly by many Muslim contemporaries today. From the 20th century onwards, Islamic legal thoughts have been challenged due to inherent conceptions of justice and equality, which was understood differently before.
“In Soroush’s words, ’Justice as a value cannot be religious, it is religion that has to be just among religious text or law that defies our notion of justice which should be interpreted in the light of an ethical critique of their religious roots.”
Another writer also concludes that about fiqh. In his paper, ’Diversity in fiqh as a social construction’, Muhammad Khalid Masud, explains the doctrine of Ikhtilaf or diversity of opinion among jurists which serves as a rich source for understanding the development of the Islamic legal tradition and as an important tool for reinterpreting Muslim Family Laws. When new times and circumstances emerge, new juristic rulings and understandings must also develop.
For instance he mentions how Caliph Mansur wanted to adopt Imam Malik’s al-Muwatta as the standard law for his region. Imam Malik was against the idea and said that different communities were dealing and practicing on the several different reports that they heard. So ‘dissuading the people from what they are practicing will put them into hardship. Let the people in each city choose for them what they prefer…’ It’s interesting to note that earlier Muslim communities themselves did not particularly know and wanted to follow the ‘right or correct way’, so to speak, to practice the Muslim way of life. They adopted whatever they could with their existing social norms but today we are constantly reminded as to what is the correct Muslim life to lead. We’re told of an ideal Muslim way of life which never existed but actually was based on local customs in pre-Islamic Arabia with some reforms.
Imam Malik even differed with his student, Layth who claimed that not all of the companions of the Prophet agreed with the practice in Medina, which Imam Malik was stressing was authentic. The companions even disagreed among themselves on a number of issues. It’s ‘not that they do not know the Quran or the Sunnah…’ yet they went on ‘to different places evolved different practices in matters where there was no direct guidance from Quran.’ And there were differences in interpreting Quranic injunctions themselves. Muhammad Khalid Masud says that fiqh offers a choice among alternate opinions and thus it’s a social construction of the Shariah.
“In order to understand the nature of fiqh, we must note that we know very little about the law as it was practiced in the pre-modern period. The history of Islamic law is still to be written; what we have instead is a history of jurists and their schools. We commonly presume that fiqh was the source of law in pre-modern Muslim societies. This assumption identifies Shariah and the laws with fiqh and thus tends to ignore a very significant contribution that fiqh made as an alternate legal system that the jurists built to counter the royal laws. In my view, insistence on diversity suggests that fiqh developed as an alternate set of laws parallel to the then-existing legal system. It was a critique of the contemporary system. This aspect was overlooked because we do not have sufficient knowledge about how the law operated in practice.”
According to him, it is generally assumed that fiqh was the law of the Caliphate but the absence of codes and documents and continuous diversity in fiqh suggests a different view. It’s only after the 16th century that qadi judgments were available on records. All that disagreements on literature by qadis only means that they were free to interpret the Quran. Ikhtilaf literature also reveals that most of the jurists’ decisions were not directly from the Quran and Hadiths but derived from the opinions and practices of the Companions and their Successors which is particularly true when it comes to Muslim Family laws.
“The development of fiqh and its diversity suggest that legal interpretation is a continuous process that allows legal norms to remain relevant to social norms. The disagreement of jurists particularly on matters relating to family laws, suggests the importance of going behind the texts to find universal legal principles that can accommodate social changes.’(2)
As Islam spread to other regions and came into contact with different local customs and practices, institutions were built to make Shariah socially acceptable and that’s what urf, customarily means which are socially constructed practices.
“In the course of the 20th century, while Muslim states put aside Islamic legal theory in all other areas of law, they retained its provisions on marriage and divorce, selectively reformed, codified and grafted them onto a modern legal system.” (3)
This came about because of colonialism. The notion of gender and justice that Muslim Family Laws are based on are a social construction in the area of mu’ amalat of fiqh which premised on political, economic, social and cultural forces and implemented by those who had the power to represent and define the interpretations of Islam’s sacred texts and that’s how they see these laws become as Shariah compliant. Ziba-Mir Husseini notes that there are two distinctions in fiqh which are ibadat, meaning devotional and spiritual acts and mu’ amalat meaning transactional. She goes on to explain that the Family Laws was a social construct and contractual acts.
“Rulings in the first category regulate relations between God and the believer where jurists contend there’s limited scope for rationalization, explanation and change since they pertain to the spiritual realm and divine mysteries. This is not the case with mu’ amalat which regulates relations among humans and remains open to rational considerations and social forces, and to which most rulings concerning women and gender relations belong. Since human affairs are in constant change and evolution, there’s always a need for new rulings, based on new interpretations of sacred texts, in line with the changing realities of time and place. This is the very rational for Ijtihad (self- exertion, endeavor) which is the jurists’ method of finding solution to new issues in the light of the guidance of revelation.’
Marriage and Divorce
When it comes to marriage and divorce, classical Muslim jurists regulated them ‘through rules of control and subjugation of women’. They legitimized and institutionalized them throughout the Muslim world. These same rules are being used in the contemporary world to sustain the gender inequality which is thought and believed to be inherent in Islam and therefore justified practices for all times.
How women should be and conduct themselves in the private sphere were all laid out for them. But this meant affecting their participation in the public arena. Allowing someone the right to do something means not hindering the process leading the way to realize that right being fulfilled. Men do not have such issues to deal with. But women are always put into their place through oft-repeated ‘advice’ of their natural disposition or make up with backing from these laws and thus labeled as being weak not only in physical nature but also morally and intellectually. We know that not all men are superior in these terms, after all men do get cheated too and thus equally become victims like women. So to me the notion does not stand.
Without a consistent concept of gender rights in Islamic legal thought and with a wide range of conflicting concepts each based on different assumptions and theories has resulted in a tension ‘in Islam’s sacred texts between ethical egalitarianism as an essential part of its message and the patriarchal context in which this message was unfolded and implemented’.(4)
Classical fiqh scholars defined marriage as a contract of exchange and used the analogy of a sale contract and they had no reservations whatsoever doing so. This reflects the time and circumstances they lived in. The contract known as aqd al-nikah (contract of coitus) is made with fixed terms taking legal effect and the main purpose is to make sexual relations permissible. And it has three essential elements to it. The offer, ijab, by the woman or her guardian (wali) ,the acceptance (qabul) by the man and the payment of dower (mahr) which is a sum of money or any valuable that is paid to the bride by the husband before or after consummation. An analogy of sale was used by jurists because marriage was a kind of slavery to them. So a wife is considered to be like a slave to her husband.
“…important point is that the notion and the legal ‘logic of ownership’ (tamlik) underlie their conception of marriage, in which a woman’s sexuality, if not her person, becomes a commodity, an object of exchange. It is this legal logic that defines the rights and duties of each spouse in marriage. “(5)
And jurists made clear that marriage and divorce resembling a sale contract was only in form, not in spirit and made distinctions between free and slave women in terms of rights and duties. Since the wife is not the sole or joint ownership of matrimonial assets, she retains the Mahr and whatever she brings or earns during the marriage. The only area the ‘spouses share is the procreation of children’ and even then she is ‘not legally required to suckle her child and can demand compensation if she does.’ It makes sense now why for a bride in the gulf country asks for a high Mahr price as understood in the classical times when slavery was rampant and a high likelihood for the groom not to continue to pay the remaining Mahr in cases where the wife is found rebellious or disobedient.
“For example cases of dower (Mahr) disputes about the amount and mode of payment or whatever specific words connote the meaning of dower, are settled on the basis of practice in a community.’ And in my community Mahr is understood as a marriage gift not as a sale of coitus. A gift the bride or the couple can use in their marriage life. To use a sale analogy for Mahr now would not be a welcoming thought at all because our motives and sensibilities have changed. The marriage package is just promoted differently now among which are mutual love, understanding and respect, and the complementarities principle. This highlights the different thoughts and emotions we have now and thus see how divorced we are from the times the sale analogy was made when slavery was recognized as an acceptable institution and thus parallels were drawn from it. Then women were ‘sexual beings and discussed only in the context of marriage and divorce’, not as ‘social beings’, ‘right holders’ and citizens’ which we are familiar with today. (6)
Also there seems to be significant disagreements among jurists on the requirement of a marriage guardian then. While Imams Shafi’i and Malik were in favor of a guardian for the woman, Abu Hanifa, disciple Zufar, Sha’bi and Zuhri ‘do not consider it a requirement provided the couple is socially compatible. Da’ud al Zuhri requires a guardian when it is the bride’s first marriage and Ibn Qasim regards the presence of a guardian as commendable but not obligatory. ‘Ibn Rushd analyses this disagreement, pointing out that it came about because there was no clear verse or hadith on the subject.’ (7) This is not so now. It’s taken as a common principle to have a marriage guardian to give a woman away in marriage. It seems in those days women had more choices to choose from which madhahib (schools of thought) they wanted to apply to their marriage contract. At least she had a choice whether she wanted to use a guardian or not because all madhahibs were recognized and accepted in one region unlike now. It’s a standard practice here in SEA to adopt Shafi’i madhahib and therefore a woman needs to have a guardian to get married here. There’s no choice in this matter at least in Muslim marriages.
In divorce, a man has a unilateral right to divorce his wife while a woman who uses khul to divorce her husband, still needs his consent, if not the consent of the court, to get her freedom.
“In defining Talaq as the exclusive right of the husband, the classical jurists used the analogy of manumission – a right that exclusively rested with the master of a slave. In Ghazali’s words, ‘the man is the owner and he has, as it were, enslaved the woman through the dowry and …she has no discernment in her affairs.’ (8)
This statement not only makes marriage as enslaving a woman’s form but also her spirit as well. Because whatever the husband finds excess piety or devotional acts that hampers his desire, he can override them as he is her ‘owner’ through the payment of dowry. So this makes the marriage contract to cross over the limit between the two categories of ibadat and mu’amalat as the ethical injunctions that the jurists spoke about marriage as a religious duty is ‘eclipsed’ by the contract that made female sexuality a commodity of exchange and giving the man an absolute power to end the contract.
“Recent studies of divorce laws in Islamic law illustrate how fiqh relies more on the opinions of the companions and their successors than on Quran and the Sunnah of the Prophet.” (9)
An example of this is the disagreement on deciding the quru or the waiting period after divorce for the woman. Imams Shafi’i, Maliki and Shi jurists agreed that divorce is calculated from the period of purity while Imams Hanafi and Hanbali took the onset of menses as it was easy to begin counting from that clear sign. As Muhammad Khalid Masud argues this could be a result of diversity in social norms by people living in different areas.
Shafi’i’s stand was a continuity of pre-Islamic Arab society which took the period of purity and Islam affirmed the practice but extended the time from one to three months so that the couple had more time to consider the matter of divorce. How this is possible when the husband is allowed to contract other marriages, that is polygamy, while he and his wife are suppose to patch things up beats me. The rights of the husband or the ‘master’ were kept intact and no changes were made in this area to counter the reform that Islam brought forward.
Just like in marriage and divorce, changes or reforms need to be made in inheritance laws so that women’s greater participation is recognized and that shares are more fairly distributed. For instance, a dutiful daughter when compared to an in filial son, the son still gets twice his share despite him neglecting his duties. This daughter deserves to get more than the son when inheritance issues are discussed. Circumstances need to be taken into consideration when making rulings. Like giving someone who is more worthy of fulfilling the obligations than awarding it to another who merely asserts his right. Just as how marriage and divorce laws were and are a social construct, inheritance laws also fall into that category as well. For a example,
“The social construct of laws is evident from the disagreement among jurists with regard to the matter of apportionment of inheritance for sisters and uterine relatives namely on the maternal side. The Quran says that if a man is survived by only one sister, she would inherit half of his estate as inheritance (4:176). According to some jurists, she will also inherit the other half as residue if there was no agnate relative. Shafi’i disagreed with this view: ‘Have you not given her the entire estate as a sole survivor while God prescribed for her only half of it where she survived alone or with others? “(10)
The other jurists indicated the verse 8:75 referring to uterine relatives whom Imam Shafi’i dismissed saying that it was an earlier verse revealed after Hijrah when inheritance was distributed according to faith relations and maintained that males should get twice than females. Muhammad Khalid Masud also argued that the disagreement arose because of differing interpretation of the two Quranic verses. Imam Shafi’i historicized the verses and argued that the ‘verse related to uterine relatives was no longer applicable. The different perspectives held by the jurists on patriarchal and matriarchal social structure’s explains the disagreements’. Shafi’i favoring patriarchy and arguing the opposing opinion would compromise this principle…appears to maintain the pre-Islamic patriarchal practice…”
When the Prophet introduced reforms to the patriarchal practices such that women are also regarded as inheritance sharers, some of the companions found it strange as women do not participate in wars and thus don’t bring in booty.
“We cannot appreciate the reforms introduced in the Quran and the Sunnah without relating them to the social context they were introduced. The jurists also interpreted the Shariah with reference to their social contexts. Today when the social context has again changed, we need to interpret the Shariah in these new social contexts.” (11)
Colonialism also played a vital role in separating customary and common laws to make way for European legal systems to be introduced in the respected countries they occupy. By doing so, it restricted local laws to marriage, divorce and inheritance. And defined them as religious and customary and thus excluding them from the general principles of equality and justice. These made Muslims cling on to them as the ‘last bastion of Islam’ and ‘reinforced the religious tone related to gender rights.’ (12)
To conclude, reforms are very much needed in Muslim Family Laws to make it relevant for today’s society. Fiqh through which Muslim Family Laws are based on is man-made and not divine law which developed in history and such Muslims need not advocate them in a sacrosanct level. It was the way how classical Muslim jurists dealt with the times and circumstances they experienced and we should do the same with our changed times and circumstances too. Jurists then were debating and pushing for acceptance for what they thought and believed could work out for them and be relevant to their society and we will not be differing much from that stance if we do.
1. The information in this paper is primarily taken from www.musawah.com website.
2. (1) Zainah Anwar
3. (2), (7), (9), (10), (11)-Muhammad Khalid Masud-
Iktilaf al- Fuqaha: Diversity in Fiqh as a social construction
4. 3), (4), (5), (6), (7),(8), (12)-Ziba –Mir – Husseini –
Towards Gender Equality: Muslim Family Laws and the Shariah