Muslim Women`s Rights in the Global Village: Challenges and

Transcription

Muslim Women's Rights in the Global Village: Challenges and Opportunities
Author(s): Azizah Yahia al-Hibri
Source: Journal of Law and Religion, Vol. 15, No. 1/2 (2000 - 2001), pp. 37-66
Published by: Journal of Law and Religion, Inc.
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MUSLIM WOMEN'S RIGHTS IN THE GLOBAL VILLAGE:
CHALLENGES AND OPPORTUNITIES
Azizah Yahia al-Hibri t
INTRODUCTION
In this age of informationtechnologythat shrankour world into a
globalvillage, it is fairto ask how this recentdevelopmenthas impacted
Muslimwomen's rightsacrossthe world. Havingjust traveledthrough
nine Muslim countries,ranging from Pakistanand Bangladeshto the
Gulf States, Egypt, Syria, and Lebanon, I would answer that it is
leading,slowly but surely,to reassessmentandchange.' Attempts to
acceleratethe pace of this change,however,without full understanding
of its complex topology, and the deep-rootedcommitmentby most
Muslimwomen to spiritualand culturalauthenticity,could halt or even
reverse this process at great cost to women particularlyand Muslim
societies as a whole. Hencethe challengesandopportunities.
Pious Muslim women are generallybewilderedby the laws and
judicial systems of their societies,which are supposedto be Islamic. It
is well understoodthat the hallmarkof Islam is justice.2 Yet Muslim
societies have been dispensing injustices to women in the name of
Islam. Some women seeking divorce in Islamic courts have been
trappedwithin the system for years.3 On the other hand, divorce and
t Fellow, National HumanitiesCenter (2000-01). Professor of Law, University of
Richmond.Presentedfor the HannibalClubEvent,September28, 1999.
1. The trip was arrangedand funded in part by the United States InformationService
(USIA) andfundedin partby the Universityof Richmond.The authorthanksher studentresearch
assistants,Ms. Colleen Gillis andMs. GhadaQaisi, for blue-bookingthis articleunderimmense
time pressures.The authoralso thanksMs. LindaWoolridgeforproofreadingit.
2. [Editor'sNote: Translationof all Qur'aniccites hereinwere providedby the authorwho
reliedheavilyon TheMeaningsTheHoly Qur'an('AbdullahYusef 'Ali trans.,Brentwood1992).]
See Qur'an16:90,49:9; Muhammad'Amara,Al-Islamwa Huquqal-Insan55-68 (Beirut:Dar alShuruq1939) (arguingthatjustice leads all othervalues in Islam);al-Mawsu'aal-Fiqhiyyavol.
30, 5-14 (Kuwait:That al-Salasil,Ministryof Awqaf & Islamic Affairs 1983) (describingthe
differenttypesof justice requiredin IslamandthatJusticeis one of God's names).
3. Accordingto one woman,her divorce actionhad been pendingin the courts for seven
years. It had not reachedits conclusionwhen we met. She was concernedaboutthe loss of her
reproductiveyears before the finalizationof her divorce, thus dimming her chances for a
remarriageandchildren.
37
38
JOURNALOF LAW& RELIGION
[Vol. XV
remarriagehave been renderedmuch easier for men.4 Also, various
Shari'ah (Islamic law) protectionsfor women in case of an unhappy
marriage,divorce, or custodyhave been ignored even by the women's
own families.5 While Westernfeminists have been focusing on such
issues as the veil and the perceivedgenderdiscriminationin the laws of
inheritance,Muslim women I spoke to did not regardthese issues as
important.They were moreinterestedin re-examiningfamily law andin
the proper application of all Islamic laws, including the laws of
inheritanceas they stand. In short, Muslim women want a more just
understandingof and adherenceto Islamic principles. They appearto
believe that existing laws and practicesare not conducive to a happy
home life or a just society. Surprisingly,Muslim women have the
supportof manyMuslimmalejuristswho sharetheirconcerns.6
Several factors have forced Muslims to reassess the status quo.
The colonization experience, wars, Western education and Western
modes of communicationhave been primary among these factors.7
Colonizationexposed the soft underbellyof the indigenoussystems of
governance,while at the same time challengingand marginalizingthe
Muslim individual's religious beliefs and cultural values.8 Wars
dislodged establishedsocial structures,especially those relatingto the
4. Womenin manycountriescomplainedaboutthe ease with which a husbandis allowedto
divorce his wife. This trendcontravenesa substantialbody of traditionalIslamicjurisprudence
thatoffers importantprotectionsto thewife.
5. Some of these protectionsincludethe rightof the woman not to be marriedwithouther
consent, her right to a reasonablesadaq (financialor other gift given by the husbandupon
marriage),as well as her right to educationand work. Other neglected protectionsinclude
protectionagainstabuse(even verbalabuse)andagainstinterferenceby the husbandin the wife's
financialaffairs.
6. Amongrecentjuristswho were vocal in theirsupportof women's rightsgenerally,or in
certainarenas,is the late Abdul Halim Abu Shuqqah,who wrote Tahriral-Mar'ahfi 'AsralRisalah, 5 vols. (Kuwait:Dar al-Qalam1990). Earlierthis century,MuhammadRashidRidha
which was more equitabletowardswomen. See e.g.
also presenteda Qur'anicinterpretation
MuhammadRashidRidha,Huquqal-Nisa' fi al-Islam (Beirut:al-Maktabal-Islamirepr. 1975)
[hereinafterRidhaHuquq]MuhammadRashidRidha,Tafsiral-Qur'anal-Hakim(Beirut:Dar alMa'rifah 1947). See also a work by SheikhMahdi Shams al-Din, a contemporary
jurist who
arguedfor the woman'srightto assumepoliticalpowerentitledAhliyyatal-Mar'ahli TawallialSultah(Beirut:al-Mu'assasahal-Duwaliyyahli al-Dirasatwa al-Nashr1995).
7. Some of these matterswere discussedin Azizah Y. al-Hibri,IslamicLaw and Muslim
Womenin America,in One Nation UnderGod 128-142 (Routledge1999) [hereinafteral-Hibri,
IslamicLaw];AzizahY. al-Hibri,LegalReform:RevivingHumanRightsin the MuslimWorld,20
Harv. Intl. Rev. 50 (1998) [hereinafteral-Hibri,Legal Reform];Azizah Y. al-Hibri,Islamicand
AmericanConstitutionalLaw: BorrowingPossibilitiesor A History of Borrowing?1 U. Pa. J.
Const.L., 492-527(1999) [hereinafter
al-Hibri,Constitutional
Law].
8. For more on this, see my discussionin Azizah Y. al-Hibri,Islamic Law and Muslim
Womenin America,in One Nation UnderGod 128, 134-135 (M. Garber& R. Walkowitzeds.,
Routledge1999).
MUSLIMWOMEN'SRIGHTS
37]
39
family.9 Finally, through the twin lenses of Western education and
modes of communicationsuch as satellite television and the Internet,
Muslim men and women are experiencing instantaneously,though
vicariously,the post-colonialWesternworldview and Westernways of
life. Generally, they like a good part of what they see, such as
democraticgovernance,freedom of speech, independentwomen, and
comfortabletechnologicallyadvancedsocieties. Thereare otherthings,
however,they decidedlydo not like, such as sexual permissiveness,the
acceleratingdivorcerate,growingviolence in society, especially among
the youth,andthe treatmentof the elderly.
Consequently,many Muslims, male and female, are struggling
todaywith the following questions:How do they introduceprogressinto
their societies, while at the same time protecting their deep-seated
spiritualbeliefs and culturalidentities, two valuable foundationsthat
colonialismtriedunsuccessfullyto destroy? How can they benefit from
the Westernexperience,includingits recognitionof the legitimaterights
of women, withoutinadvertentlydestroyingtheir highly valued familial
ties? In this context, the experienceof those North AmericanMuslims
who have successfully integrated their religious beliefs and ethnic
heritage with the Americanand Canadianways of life becomes very
valuable. It is a living proof of the fact that Islam is not a mere
"Oriental"religion,but a worldreligionwhich is capableof meeting the
needs of Muslimsin all historicalerasandall geographicallocations.
THE ROLEOFNORTHAMERICANMUSLIMS
For this reason, beginning a discussion about Muslim women's
rights in the Global Village by offering a North American Muslim
perspective is neither irrelevant nor insignificant. In fact, my audiences
in the various Muslim countries were very interested in my perspective.
Once they recognized my serious spiritual commitment and
jurisprudentialknowledge of the topic, they wanted further information
about women's rights in Islam.10 There is, however, one drawback when
a North American Muslim speaks. While non-American Muslim
women and men may like my jurisprudential views on women's rights
and welcome them, some may view them as exclusively suitable to the
circumstances of North American Muslim women. On the other hand,
9. Id.
10. Manyquestionswere asked(politely)to test my knowledgeof Islamand Arabic,as well
as to uncovermy intentions. Once this test was passed,communicationchannelsbecame wide
open.
40
[Vol. XV
othersmay be encouragedby them,perhapsas usheringin a new way of
organizingtheirsociety whichmay conflictwith some outmodedaspects
of their culturebut not with their religious beliefs. Such views would
offer a fulcrumfor changein the Muslimworld.
Forthe sake of this secondgroup,andfor the sake of Americanand
Canadian Muslims who have asked me repeatedly about Muslim
women's rights,I shall focus in this articleon those women's issues that
are most important for the Muslim community. In drawing my
conclusions,I shall rely mainlyon basic and traditionalIslamic sources
to show that problematicjurisprudencewas often the result of a
or misapplicationof the Qur'anictext resultingfrom
misunderstanding
culturaldistortionsor patriarchal
bias. In preparationfor this discussion,
we need first to lay the foundation for understanding Islamic
jurisprudenceandits relationto culture.
THE RELATION OF RELIGIONTO CULTURE
The distinctionbetween(andrelationshipof) cultureand religionis
criticalfor understandingIslamicjurisprudence.Most importantly,the
Qur'an is the revealed Word of God, whereas culture is human
fabrication." So, while a Muslim is bound by every letter, word and
phrasein the Qur'an,she is not boundsimilarlyby her culturalvalues.
For example,a Muslimmay rejecta particularculturalcustom or value,
yet remainpartof thatculture. She cannot,however,rejecteven a single
word in the Qur'anand continuecalling herself a Muslim.12 It is that
simple and clear for Muslims. Consequently,culturalassumptionsand
values that masqueradeas religious ones are insidious insofar as they
mislead Muslims into believing that they have divine origins, thus
denyingMuslimsthe rightto assess themcritically,or even rejectthem.
Some of the majormisleadingculturalassumptionsrelate to issues of
democracyand women's rights.'3 The two issues incidentallyare not
11. Muslimsbelieve that the Qur'anis the Wordof God revealed to the illiterateProphet
Muhammadthroughthe ArchangelGabriel. For moreon this and a quick descriptionof Islamic
law, see Azizah Y. al-Hibri, Islamic Constitutionalism and the Concept of Democracy, 24 Case
W. Res. J. Intl.L. 1, 3-10 (1992) [hereinafter
al-Hibri,IslamicConstitutionalism].
12. It may be arguedthatexceptionsarisein situationswherejurists interpreta verse of the
Qur'anas havingbeen supercededby a laterverse (or hadith,accordingto some). The general
rule, however,remains. In one famousincident,the SudaneseMahmoudTahawas executedfor
arguingthat a substantialpartof the Qur'anshouldbe abrogatedbecause it had become, in his
view, obsolete. While the decisionto executewas a politicalone made by formerPresidentalNumeiri,it was disguisedas a religiousone. Thejustificationused reflects the universalview
held by Muslims,namelythatrejectinganypartof the Qur'anis tantamountto rejectingIslam.
13. Al-Hibri, Islamic Constitutionalism, supra n. 11; Azizah Y. al-Hibri, Islam, Law and
Custom: Redefining Muslim Women's Rights, 12 Am. J. Intl. L. & Policy (1997) [hereinafter al-
37]
MUSLIMWOMEN'SRIGHTS
41
unrelated.
Cultural assumptionsand customs have often been introduced
legitimatelyinto the Islamiclegal system. The Qur'ancelebratesethnic,
racialand otherformsof diversity;andthe hadith(reportedwords of the
Prophet)emphasizesthe equalityof all humanbeings.'4 Forthis reason,
jurists have encouragedvariousculturesto retaintheir culturalidentity
by includingtheircustomsin their legal systems.15The only condition
for such inclusionwas that these customs be consistentwith the basic
tenets of Islam itself.16 In case of inconsistency,the culturalcustoms
must be rejected.17 This approach permitted a variety of Islamic
civilizations to blossom, each with its own cultural heritage but all
sharing the same basic religious law. Unfortunately,however, some
customsthatconflictedwith Islamictenets increasinglyfoundtheirway
into the laws of variousMuslimcountries.18Even today,manycountries
that claim to be following Islamic law often use religion to justify
repugnant laws that are really based on custom.19 Because such
Hibri,Islam].
14. See Qur'an4:1, 6:98, 7:189;Khutbatal-Wadaa'bythe Prophet,in whichhe stated:
O People,all believersaresiblings. YourGod is one andyour fatheris one. You are all
from AdamandAdamis fromdust. The most favoredamongstyou in the sight of God
is the one who is mostpious;no Arabis favoredover a non-Arabexcepton the basis of
piety.
Hassan IbrahimHassan, Tarikhal-Islam vol. 1, 186 (7h ed., Cairo: Maktabatal-Nahda alMisriyyah1964) (also recountingthatsome Muslimsobjectedto the fact thatthe Prophetgave his
permissionfor a freewomanto marrya slave, andthatthe Qur'anicverse 49:13 was revealedon
this occasion). Fora translationof the full text of verse49:13;see infran. 94.
15. See MohammadHashimKamali,Principles of Islamic Jurisprudence283-296 (1991);
Subhi Mahmassani,Al-Awda'at-Tashri'iyyah
fi al-Duwal al-'Arabiyyah438-442, 479, 481 (3d
ed., Beirut:Dar al-'Ilmli al-Malayin1965) [hereinafterMahmassani,Al-Awda'];al-Hibri,Islam,
supra n. 13, at 6-7; Ali Haidar,Durral-HukkamfiSharhMajallatal-Ahkamvol. 1, 40-46 (Beirut:
Dar al-Kutubal-'Ilmiyyahn.d.) (explainingthe importanceof acknowledgingand defining the
role of custom in Ottomanlaw, and quotingthe hadiththat what Muslims deem to be good, is
good in the sight of God); SubhiMahmassani,Muqaddimah
fi 'Ihya' 'Ulumal-Shari'ah59-93
(Beirut:Dar al-'Ilmli al-Malayin1962) [hereinafterMahmassani,Muqaddimah](noting,among
otherthings,thatthepermissionto changea law as a resultof changein time or place relatesonly
to mattersof mu'amalat,thatis, dealingsamongpeople, anddoes not applyto Qur'anictext or to
'ibadat,thatis, mattersof worship).
16. See Haidar,supra n. 15, at vol. 1, 40; Kamali,supra n. 15, at 284; Mahmassani,alAwda',supran. 15, at 438-439;al-Hibri,Islam,supran. 13, at 61.
17. See Haidar,supra n. 15, at vol. 1, 40; Kamali,supra n. 15, at 284; Mahmassani,alAwda', supra n. 15, at 438-440 (butnotingthatsome Muslimcountrieshave given preferencein
theirmodemlaws to customovershari'ah);al-Hibri,Islam,supran. 13, at 6.
18. For an excellentdiscussionof this point,see Mahmassani,al-Awda',supran. 15, at 433475.
19. A good exampleof this is Pakistan'szina (adultery)laws. For an excellentdiscussionof
these laws which are claimedto be based on Islam,see Asifa Quraishi,Her Honor:An Islamic
Critiqueof the RapeLaws of Pakistanfrom a Woman-Sensitive
Perspective,18 Mich. J. Intl. L.
287 (1997).
42
[Vol. XV
justificationsare offered in Muslim societies whose religious education
has most likely sufferedin the last century,Muslimsare often unableto
discernthe culturalroots of objectionablelaws and their conflict with
Islam.20As a result,devoutMuslimshesitateto criticizeany partof the
law. In other words, confusion as to the religious characterof some
laws has effectively resultedin silencing importantcritical voices and
keeping society bound by repugnantcustoms mistaken for religious
injunctions.
It is furthermoreimportantto understandthat Islamiclaws as they
relate to mu'amalat (dealings among people) often reflect differences of
jurisprudentialopinion among major Muslim scholars.21 These
differenceshave manyroots.22Allowing custominto the legal system is
only one of them.23Anotherroot derives from the right to freedomof
conscience,which is guaranteedin the Qur'anitself.24Forthis reason,it
is establishedin traditionalIslamicjurisprudencethat scholarshave the
right to engage in their own ijtihad (jurisprudentialinterpretation)to
develop laws that are best suited to theirjurisdictionand era.25 That
ijtihad is then reflected in the legal system of the country.26
Unfortunately,however, several factors have combined throughout
historyto narrowthe scope of ijtihadandlimit freedomof thought.27As
a result,manyschools of thoughtdisappearedandno new ones replaced
20. I came face to face with this problemwhile on a USIA tour. In a closed meeting with
some leading Muslimwomen, it became clear that severalof them were chafing undercertain
patriarchallaws in theircountrybut were unwillingto contestthem becausethey thoughtthese
laws werebasedon the Qur'an.
21. Themostobviousinstanceof this fact is reflectedin the Muslimfamilylaw of the various
countries.Fora detaileddiscussion,see al-Hibri,Islam,supran. 13, at 10-14;AzizahY. al-Hibri,
Marriage Laws in Muslim Countries, 4 Intl. Rev. Comp. Pub. Policies 227, 229-241 passim
(1992).
22. See Mahmassani, Muqaddimah, supra n. 15, at 35-55; al-Hibri, Constitutional Law, supra
n. 7, at 506, 509.
23. For a discussionof the variousconsiderationsthat could lead to differencesof opinion
andthus differentformulationsof the law, see Kamali,supran. 15, at 197-228,245-309 passim;
Mahmassani, al-Awda', supra n. 15, at 478-482; al-Hibri, Constitutional Law, supra n. 7, at 505-
511.
24. Qur'an2:256.
25. See Mahmassani,Muqaddimah,
supran. 15, at 67. The most salientexampleof this fact
is thatof Imamal-Shafi'i,who changedaspectsof his jurisprudenceafterhe moved from Iraqto
Egypt. See id. at 40; TahaJabiral-'Alwani,Usul al-Fiqhal-Islami(The Foundationsof Islamic
33-36 (Intl. Inst. of IslamicThought1990); MuhammadAbu Zahrah,Al-Shafi'i
Jurisprudence)
145-146(n.p.:Daral-Fikral-'Arabi1948);'Ala' Al-Deenal-Samarqandi,
Tariqatal-Khilafbayn
al-Aslaf (The Methodof DisagreementAmong the Predecessors)13 (Beirut:Dar al-Kutubal'Ilmiyyah,11thCent.repr.1992).
26. See supra n. 19.
27. Mahmassani al-Awda', supra n. 15, at 477-478; al-Hibri, Islam, supra n. 13, at 7; alHibri, Legal Reform, supra n. 7, at 50-53.
37]
MUSLIMWOMEN'SRIGHTS
43
them.28 Furthermore,scholars continued to adhere to established
schools of thoughteven when these were no longer best suited to their
societies.29Only recently,for example,did Moroccorevise its personal
statuscode to eliminatea provisionallowing the fatherto force his bikr
(virgin)daughterinto marriage.30The provisionderivedfromthe Maliki
tradition and representedan obsolete cultural interpretationof the
parentalrelationship,yet it remainedas part of the law for a very long
time.31 A closer look at the Maliki interpretationwould have revealed
its inconsistency with the hadith that requires the consent (or
permission) of a bikr for the validity of her marriage.32 Such
inconsistencieswere often overlookedby earlierjuristswho were caught
up in their own culturalperspectives. As these perspectivesbecome
outmoded,it becomesimportantto expose andeliminatethem.
It is not possible, however,to criticallyassess Islamiclaw without
a properIslamic education. Politics, unfortunately,has played a major
role in denyingthe averageMuslim a good religious education.33This
denial, in parta colonialistlegacy, helped political regimes confuse the
masses aboutwhat is in the Qur'anor what the Qur'anactually says.34
Such confusion did criticaldamagein areas of Islamic law relatingto
issues of governanceand democracy. Recognizingtheir responsibility
towards God and Muslims, jurists made repeated attemptsto clarify
Islamic law on these matters,35as they struggled to keep political
28. Mahmassani, Muqaddimah, supra n. 15, at 20-22, 39; Al-Hibri, Constitutional Law,
supran. 7, at 522-523.
29. MuhammadAbu Zahrah,Al-Ahwalal-Shakhsiyyah9 (n.p.: Dar al-Fikral-'Arabi 1997)
(arguingthatHanafilaw is no longersuitablein some respectsfor modem times). Only recently
did Moroccoabandonthe Maliki rule that a fathermay force his virgin daughterinto marriage
againsther will. See al-Hibri,Islam, supra n. 13, at 11, 15 (stating that other Muslimjurists
disagreedwith Malikon this matter). Also, some countriescontinueto have in effect laws based
on a jurisprudencethatassumesthatwomencan be easily sweptby emotionsandhence need the
protectionof men. See id. at 15.
30. MoroccanCode, infra n. 83, Royal Decree No. 193347, bk. 1, tit. 3, ch. 12 (1993)
(deletingold bk. 1, tit. 3, ch. 12(4) & revisingold bk. 1, tit. 3, ch. 12(1)-12(3)).
31. Al-Hibri, Islam, supra n. 13, at 14-15.
32. See Abu al-Hussein Bin Muslim, Sahih Muslim bi Sharh al-Nawawi vol. 9, 202-205 (9t
Cent., repr., n.p.: Dar Ihya' at-Turathal-'Arabin.d.) [hereinafterSahih Muslim] (quoting the
Prophetas sayingthata virginmaynotbecomemarriedwithoutherpermission).
33. See al-Hibri,IslamicLaw,supran. 7, at 129;al-Hibri,ConstitutionalLaw, supra n. 7, at
522-523. See also Abu Hamidal-Ghazali,Ihya' 'Ulumal-Din 33-34 (Matba'atMustafaal-Babi
al-Halabi1939);'Abd al-RahmanIbnKhaldoun,al-Muqqadimah
209 (14th Cent.,repr.,KitabalQalam 1978); Ibrahim al-Wazir, 'Ala Masharifal-Qarn al-Khamis 'Ashar al-Hijri 42 (Beirut: Dar
al-Shuruq 1989); Hassan al-Zein, al-Islam wa al-Fikr al-Mu'asser 45-46 (Dar al-Fikr al-Hadith
1997). Cf al-Ghazali,supra,at vol. 2, 337-351 (providinginstanceswherepeoplewho spoke out
to the rulerdirectlywerenot punished).
34. See al-Hibri, Islamic Law, supra n. 7, at 134-135.
35. Most significantamongthe recentattemptsare the works of Abd al-Razzaqal-Sanhuri,
44
[Vol. XV
influence out of the mosque.36 But authoritarianrulers quashedthese
efforts and punishedthose leaders who stood in their way.37 Islamic
history is litteredwith storiesof the tortureor jailing of varioushighly
distinguishedjuristswhose crimewas thatof refusingto echo the views
of the politicalrulerand shroudthem with religious legitimacy.38This
state of affairscontinuesuntilthis day, a fact which does not bode well
for freedomof thoughtor belief in these countries. How can Muslim
women begin discussing their rights when Muslim men and women
cannoteven speakfreely?
BASIC INTRODUCTIONTO ISLAM
To understandIslamiclaw, one must startwith the basic principles
of Islam. The primarysource of all Islamic law is the Qur'an. It is
supplementedby the hadith. Otherimportantsourcesare those of ijma'
(consensus)and ijtihadwhich is based on rules of logic as well as on
religioustext.39It is importantto note thatIslamhas no clergy, nor does
it have an ecclesiastic structure.40Each individualhas direct access to
the Qur'anandhadithand is in principleentitledto engage in ijtihad,so
long as she has the requisiteknowledge.41Thus not only countriesbut
choices.
also individualsareentitledto theirownjurisprudential
This fundamentalright of Muslims to freedom of jurisprudential
choice and to unmediatedaccess to the Qur'anand hadith, combined
with Islam'srespectfor local custommakesit clearthatNorthAmerican
Muslims are not boundby the culturalpreferencesof Muslims in other
choices. We live in and are partof
countriesnorby theirjurisprudential
North Americanculturesthat also celebratediversity. We are free to
retainfromour ethnicheritagethese elementsthat continueto be viable
and useful in our new society. But we are fully boundby our religious
(Cairo:al-Hay'aal-Masriyyahal-'Ammahli al-Kitab1989)
Fiqh al-KhilafahWa Tatawwuruha
(arguesthatthe Islamicsystemof governmentis quitesimilarto the systemof governmentin the
UnitedStates). See Tawfical-Shawi,Fiqhal-Shurah(Daral-Wafa'1992).
36. Today, Muslim governmentsoften appointthe GrandMufti (highest rankingIslamic
authorityin the state),as well as imamsof mosques. Some governmentseven limit or specify the
topicsimamsmayaddresson Fridays,whenMuslimscongregateto pray.
37. The most famousexampleis thatof the greatjuristImamMalikwho was torturedby the
rulerfor refusingto misleadMuslimsaboutthe fact that coercedconsent was not bindingupon
them. See a referenceto this incidentandothersin al-Wazir,supran. 30, at 42. Anotherexample
is discussedin al-Hibri,Constitutional
Law,supran. 7, at 520-522 (recountingthe storyof Yazid,
one of the Khalifahswho attemptedto gainlegitimacyby the use of force).
39. For a comprehensive
studyof this topicsee Kamali,supran. 15.
40. See al-Hibri, Constitutional Law, supra, n. 11, at 507-511; al-Hibri, supra, n. 9, at 24-25.
Forthis reason,a Mufti,grandor otherwise,maynot bindothersby his opinion(fatwa).
37]
MUSLIMWOMEN'SRIGHTS
45
beliefs. We cannotbe selective amongthem. We are entitled,however,
to interpretDivine Will in ways that are best suited for our own
jurisdictionand era. Of course, such interpretationsdo not apply to the
thawabitof Islam, i.e. to mattersthat are fixed, clear, and fundamental,
such as the unicityof God.
The fact that our governmentsespouse democraticprinciplesand
do not stifle our freedom of expression facilitates our efforts. North
AmericanMuslims are free to engage vigorously in the time-honored
tradition of ijtihad in order to authentically define their own
jurisprudence.Unliketheirbrothersand sistersabroad,they do not have
to be concernedabouteitherpoliticalcensorshipor retribution.
In the matterof Muslim women's rights,North AmericanMuslim
women are not boundby the patriarchalassumptionsof other cultures.
These assumptionshave been rejectedfor the most partin our societies.
We are only boundby the Qur'an,as illuminatedby reliablehadithand
what it says aboutwomen and theirrights. Furthermore,
in discovering
what the Qur'ansays we are not bound by the patriarchalaspects of
interpretationsoffered by earlier jurists. These aspects reveal
themselves as patriarchalwhen the jurist incorporatesinto his logic
patriarchalassumptionsnot presentin the Qur'anicverse itself, such as
the assumptionthatwomen are emotionalandirrational.42
In the United States and Canada,many of our Muslimwomen are
capableprofessionalswhose mere existence presentsa counterexample
to these patriarchalassumptions. Many Muslim women in other
countries have made similar gains, but are being hindered in their
progressby patriarchalforces in the name of Islam.43 They are also
being hinderedfrom rebuttingpatriarchalclaims by an authoritarian
structureof governance. For example,every Afghaniman andwoman I
spoketo duringmy travelsis fully awarethatgettingan educationis the
duty of each Muslim male and female. Yet, the Talibanforces have
managed to impose a minimalist interpretationand a patriarchal
educationalpolicy throughsheerforce.
Because of the various obstacles facing Muslim women abroad,
tend
to be quitesupportiveof the seriouseffortsby NorthAmerican
they
Muslimwomen to rid Islamic law of patriarchalculturalinfluences. In
the rest of this article, I shall present my views on Islamic law as it
relatesto variousissues of importanceto women. These views are all
43. The most salient example is the situation in Afghanistan. In the name of Islam,
professionalMuslimwomen have been preventedfrom workingoutside their homes, and their
daughtershavebeendeniedan educationas good as theirs,a verypainfulsituationto the mothers.
46
[Vol. XV
based on the Qur'anitself; they also rely in part on the hadith and on
traditionaljuristicsources.
THE QUR'ANIC VIEW OF WOMEN
Basic Equality
As an American Muslim woman unburdened by patriarchal
assumptions,I have a distinctadvantageover earlierinterpreterswhen I
study the Qur'an:I can read it with fresh, liberatedeyes. Reading the
Qur'an,I discoverthatit has only one creationstory. The Qur'anstates
repeatedly,for emphasis,thatboththe male andthe female were created
from the same nafs.44 Consequently, there is no human hierarchy, and
the two genderssharea single origin. In the Qur'an,the fall of Adam is
not blamedon Eve.45Rather,bothwere temptedby Satanand sinnedin
the pursuit of power and eternal life.46 Furthermore,God forgave
humanityafter the fall. There is no continuingburdenof the original
sin.47 Men and women are responsibletowards God for their own
mortalchoices. They are bothjudgedby the same standards;they also
have the same rights, duties, and obligations in matters of ibadat
(worship).48There are some differencesbetween them in the realm of
mu'amalat (dealings), which regulates civil matters.49 These will be
addressedlater. In short, a Muslim woman is as complete a spiritual
being as the male. She is as entitledas he is to read and interpretthe
Qur'anandto live a full pious life.
Legal andFinancialRights
In the realm of mu 'amalat, the Muslim woman is an independent
legal entity, not lost throughmarriage. A Muslim woman retains her
44. See Qur'an4:1, 6:98, 7:189.
45. See Qur'an7: 20-22 (statingthatSatansucceededin temptingbothAdamandEve to taste
the fruitof the treeof eternityandpower),20:120-121(statingthatSatantemptedAdam, so both
AdamandEve ate the fruitof the tree).
47. See Qur'an20:122.
48. See Zaidan 'Abd al-Baqi, Al-Mar'ah Bayn al-Din wa al-Mujtama' 194-199 (Cairo: n.p.
1977); Ridha, Huquq, supra n. 6, at 5-37; 'Abd al-Karim Zaidan, Al-Mufassalfi Ahkam al-Mar'ah
wa al-Bayt al-Muslimvol. 4, 173-186, especially 184 (Beirut: Mu'assasat al-Risalah 1994)
(arguingthat the rule in Islam is the equalityof the two genders but listing and explaining
exceptionsin the areaof mu'amalat,i.e., dealings).
49. See 'Abd al-Baqi,supra n. 48, at 196-199;Ridha,Huquq,supra n. 6, at 20-22; Zaidan,
supran. 48, at vol. 4, 184-186.
37]
MUSLIMWOMEN'SRIGHTS
47
own name after marriage.50 She also retains her financial
independence.5"She can own propertyin her own right whethershe is
marriedor single, and no one, not even her husband,may access her
fundsor properties,or demandany form of financialsupportfrom her.52
Any money or propertyof her own thatthe wife gives herhusband,even
if she is richer than he, is regardedas a loan unless she expressly
specifies otherwise.53Islamic law, however, differentiatesbetween the
financialrightsandobligationsof the two genders. The male, while also
financially independenthas additionalfinancial responsibilities. He
must support the women in his family regardless of their financial
condition,unlessthereis a financiallyable male relativewho is closer to
them.54 For example, a father is responsible for the support of his
daughter, regardless of her age, but if the woman marries, that
responsibility is transferredto her husband.55 The logic of these
differencesin obligationsmay lie in the fact that the Qur'anis simply
providing women with added security in a difficult patriarchalworld.
Put into today's legal language,the Qur'anengages in affirmativeaction
with respectto women.
Rightto Sadaq
The Qur'an also gives the woman additional opportunitiesto
accumulatewealth. For example, upon marriageshe has the right to
50. This practiceremainscommonis SaudiArabiaand some Gulf countries,but has become
less commonis otherMuslimcountriesthataresubjectto Westerninfluences.
51. See Ridha,Huquq,supran. 6, at 19-20;Zaidan,supran. 48, at vol. 4, 291-297, & at vol.
7, 334-343 (concludingthatwhile the Muslimwomanis free to spendher moneyas she wishes, it
would be desirablefor her to seek her husband'spermissionbeforeshe gives away her money in
orderto preservegood relationswith him).
52. Seesupran. 51.
53. See Mahmassani,Muqaddimhah,supra n. 15, at 496-497 (stating that a husbandis
obliged to supporthis rich wife, but thatshe may not be forced to spend any of her money on
him); al-Jaziri,Kitabal-Fiqh 'ala al-Mathahibal-Arba'a vol. 4, 563, 582, 584 (Beirut:Dar Ihya'
al-Turathal-'Arabi1969) (statinginteralia thatif a husbandis unableto maintainhis wife, any
amountsshe spendsfrom her own money for her maintenance(nafaqah)becomes a debt of the
husband,even if she is wealthy);Zaidan,supran. 48, at vol. 4, 290-291, 297. Additionally,once
the husbandgives his wife hernafaqah(maintenancepayments)for food or clothing,for example,
she is free to spendthe moneyas she likes andnot necessarilyon food or clothing,so long as she
does not harmor weakenherhealthor detractfromher appropriate
dress,see Zaidan,supran. 48,
at vol. 7, 214-215.
54. See Abu Zahrah,supra n. 29, at 415-416 (explainingthe rules for determiningwhich
male is requiredto providemaintenanceto a woman);al-Jaziri,supra n. 53, at vol. 4, 553, 581
and n. 1 (statingthatwhen the husbandis unableto supporthis wife, the duty falls upon certain
othermales in her andhis family,in accordancewith a specifiedorder).
55. See Abu Zahrah,supra n. 29, at 246 (stating that the well-to-do fatherof a married
woman,who is not receivingmaintenancefromher spouse,may be obligatedto maintainher, but
the expensebecomesa debtof thehusband);Zaidan,supran. 48, at vol. 4, 151.
48
[Vol. XV
expect a gift from her husbandwhich could range from teachingher a
few verses fromthe Qur'an(if she does not know them already)to a few
silver coins to an immense fortune,dependingon the parties' mutual
agreement.56This is referredto as the sadaq or mahr of the woman,
sometimeserroneouslydescribedas "brideprice."57The sadaq signifies
the willingnessof the man to undertakethe responsibilitiesof marriage.
The womanhas the optionof askingfor the full amountof the sadaq (or
designatedproperty)in advance,or of deferringpartof it to become due
at a specifiedlatertime, or upon such event as deathor divorce.58In the
case of death,sadaq becomes a senior debt of the deceased husband's
estateto be satisfiedaheadof all otherdebts.59Therefore,the sadaq is at
times morevaluablethanthe wife's inheritancefrom her husbandwhen
the estateis overburdened
by debt.
In the case of divorce, the sadaq offers the woman a clearly
defined propertyor amount of money she could rely upon after the
divorce, without need for furthernegotiations. Whereas some rich
womentendto settle for a symbolicsadaq, manywomen view it as their
securitynet in case of death or divorce. Some women may prefer to
take the full amountof the sadaq at the outset. In that event, these
women are free to invest the amountof the sadaq in any venturethey
choose. They may starta businesswith it or even give it to charity. The
husbandmay not touchit or any profitresultingfromit.60
Of course,patriarchalrealityin Muslimcountriesis quite different
fromthe Islamicone. Today,many fathersnegotiatethe amountor type
of sadaq on behalf of their daughters. In some cultures,it is a sign of
prestige for the family to settle for a symbolic sadaq regardlessof the
financialinterestof the daughter. In these cases, many fathersdo not
adequatelyprotecttheirdaughters'interests.61In othercultureswhere a
substantialsadaq may be at stake,the fathermay appropriatethe sadaq
fromhis daughterto cover weddingexpenses(which are customarilyhis
responsibility). If he does not, the husbandmay "borrow"it from the
wife aftermarriage. More commonly,some culturespressurethe wife
56. AbuZahrah,supran. 29, at 175;al-Jaziri,supran. 53, at vol. 4, 96-107;Mahmassani,alAwda',supran. 15, at 467, 494; Zaidan,supran. 48, at vol. 7, 69.
57. See Keith Hodkinson, Muslim Family Law: A Source Book 132 (London: Croom Helm
1984);Mahmassani,al-Awda',supran. 15, at 467-468.
58. See AbuZahrah,supran. 29, at 174;al-Jaziri,supran. 53, at vol. 4, 153-156.
59. See AbuZahrah,supran. 29, at 174;Zaidan,supran. 48, at vol. 7, 90.
60. See Ridha,Huquq,supra n. 6, at 19-20; Mahmassani,al-Awda',supra n. 15, at 476;
Zaidan,supran. 48, at vol. 4, 291-297.
61. Manymarriagecontractstendto waive financialandotherprotectionsof the wife. These
contractsareusuallynegotiatedby thewife's fatheror otherclose malerelative.
37]
MUSLIMWOMEN'SRIGHTS
49
to "waive"the deferredpartof hersadaq altogetheras a gestureof good
will towardsthe husband.62In all these cultures,the woman has become
highly vulnerablefinanciallyand has lost a good measure of her Godgiven independence.
Rightto Work
There are other ways, however, in which the Muslim woman can
accumulatewealth. For example,she can work. The Qur'anstates that
men andwomen have a rightto theirearnings.63Khadijah,the firstwife
of the Prophet,was a businesswomanand continuesto serve to this day
as a lofty ideal for Muslim women.64Again, until recentlypatriarchal
laws prohibitedwomen from enteringthe work field underthe guise of
protectingwomen's moralityor because of women's perceivedphysical
limitations.65New economic realities have set in, however, and now
many personal status codes in Muslim countries no longer prohibit
women fromworking.
Rightto Inheritance
Another source of wealth availableto the Muslim woman is her
inheritance. Islam guaranteesfor the woman a share in her relatives'
inheritancespecified on the basis of her degree of kinship to the
deceased.66The false view in the West is that Islam gives a female a
sharein the inheritanceequal to half that given to a male. The Qur'an
does specify thata sister inheritshalf of the amounther brotherinherits,
but also specifies thatotherfemalesof differentdegrees of kinshipmay
inheritmorethanothermales.67
Nevertheless,given the Qur'anicspecification,it appearsthat the
male sibling inheritsdoublethe amountinheritedby his sister,but there
is one importantdifference between her inheritanceand his. The
62. I heardaboutthese scenariosduringmy varioustripsto Muslimcountries. The women
who mentionedthemhadbeen divorcedandleft penniless.
63. See Qur'an4:32.
64. Ibn Hisham,Al-Sirah al-Nabawiyyah(The Biographyof the Prophet)v. 1, 187-188
(Beirut:Al-Maktabahal-'Ilmiyyahn.d.); Hassan,supra n. 14, at 76; AkramDia' al-'Umari,AlSirahal-NabawiyyahAl-Sahihah(The AuthenticBiographyof the Prophet)112-114(al-Madinah,
SaudiArabia:Maktabatal-'Ulumwa al-Hikam1994).
65. See al-Hibri, Islamic Constitutionalism supra n. 11, at 12. For a detailed discussion of the
rightof Muslimwomen to work,see FaridaBennani,Taqsimal-'AmalBayn al-Zawjainfi Daw'
al-Qanun al-Maghribi wa al-Fiqh al-Islami 77-78, 155-169 (Marrakesh L. Sch. 1993).
66. See Muhammad Abu Zahrah, Ahkam al-Tarikat wa al-Mawarith 100-150 (Dar al-Fikr al-
'Arabi1963);Ridha,Huquq,supran. 6, at 20-21;Zaidan,supran. 48, at vol. 11, 261-311.
67. See Qur'an4:11.
50
[Vol. XV
amountinheritedby the sister is a net amount added to her wealth.68
The amountinheritedby the brotheris a gross amount from which he
will have to deduct the expenses of supportingthe various women,
elderlymen and childrenin his family, one of whom may be the sister
herself.69As mentionedearlier,even if the sister is wealthy, she is not
requiredto supportherself. Herclosest male relativehas thatobligation,
which she may waive only if she so chooses. Consequently,the net
increasein the wealthof the brotheris often less thanthatof his sister.
These facts illustratewhat Muslim scholarshave known all along,
namely,thatinheritancelaws in Islamare quite complicatedand cannot
be reducedto a single slogan. Patriarchy,however, has simplifiedthe
inheritancepicturedrastically. Many Muslim women receive no share
of theirinheritanceat all. Some are forcedby theirown familiesto turn
their inheritanceover to theirbrothers. Worse yet, many brotherstake
the inheritanceand disappearfromthe lives of their sisterswho have no
closer male relative obligatedto supportthem or capable of doing so.
Historically,Muslimcourtsprosecutedsuch behaviorand compelledthe
brotherto supportthe sister. Today,many injusticesgo unnoticed,and
the balance of rights and obligationsin the Muslim family has been
severelyupset.
THE QUR'ANICVIEWOFGENDERRELATIONSHIPS
Basic Principles
The Qur'anstates clearly and repeatedlythat humanbeings were
it statesthat God created
all createdfromthe same nafs.70 Furthermore,
for us humans from our own nafs mates with whom we could find
Elsewhere,the Qur'andescribesthe maritalrelationshipas
tranquility.71
one characterizedby tranquility,mercy, and affection.72 In fact, the
husbandand wife are each other's"garments,"that is they protecteach
other's privacy and cover each other's shortcomings.73This view has
importantconsequencesin variousareas of genderrelationswhich will
be brieflyaddressedbelow.
68. This is a consequenceof the rules of maintenancementionedearlier. Womenhave no
duty to maintainthemselvesor others,while relatedmales are obligatedto supportthem. See
supran. 53 & accompanyingtext.
69. Id.
70. See Qur'an4:1, 6:98, 7:189
71. See Qur'an7:189,30:21.
72. See Qur'an30:21.
73. See Qur'an2:187.
37]
MUSLIMWOMEN'SRIGHTS
51
Nevertheless, it is often argued that the superiorityof men over
women was assertedin the Qur'anitself.74 The main verse used in this
argumentis the one which refers to men as "qawwamun"over women.
The word "qawwamun"is a complicatedold word, rich with meanings.
One translationof the meaning of this verse states: "Men are the
protectorsand maintainersof women, because God has given the one
more (strength)thanthe other,andbecausethey supportthem fromtheir
means."75
in the Qur'anicverse was translatedabove
The term"qawwamun"
as "protectors and maintainers," but traditional patriarchal interpreters
(and the average Muslim man) understoodthe word "qawwamun"to
refer to the superiorityof men over women (mostly by virtue of their
physical strength, as suggested by the above translation). Ancient
Arabic dictionaries, however, include among the meanings of
those of guidingandadvising.76These meaningsaremore
"qawwamun"
consistentwith the generalQur'anicview of genderrelationsthan the
ones preferredby malejurists.
Properlytranslated,the verse recognizes a male's qiwamahover a
woman only if he (1) is supportingher financially, and (2) has been
favoredby God in certainaspectsover her thatare relevant(at thattime)
to the woman's concerns about which he is providing advice and
guidance.77 (An example of the aspects referred to in the second
requirementwould be businessacumen,in a situationwhere the woman
is not herself at thattime a knowledgeablebusinesswoman, or physical
strength, where that particularwoman needs at that time physical
assistance.) Otherwise,the male cannotasserthis qiwamah,whetherit
is advisory or not. Yet, that one verse has become the hallmarkof
patriarchalbias, since it has been interpretedto mean that all men are
superiorto all women at all times. As some scholarsexplained,men are
always in a more favorableposition vis-a-vis women because of their
by restrictingthe womanto the home,
physical strength.78Furthermore
will
insured
that
women
almost
society
always need to be supportedand
advised by some male. This point of view has encouragedoppressive
74. Theauthorhas replacedthe Arabicword"Allah"in the translationwhich follows with its
Englishmeaning,namely,God. Thiswas done to emphasisthe fact that'Allah"is the same God
as thatof ChristianityandJudaism.
75. Ali, supran. 2, v. 4:34.
76. See my discussionof this pointin Islam,Lawand Custom,12 AmericanU. J. of Intl Law
& Policy 1, 28 (1997).
77. A detaileddiscussionof this verse, includingthe conditionaland temporal(zarfiyyah)
aspectsimplicitin it, appearsin al-Hibri,Islam,supran. 13, at 25-34.
78. Id. at 28-30.
52
[Vol. XV
malesto move away fromthe Islamicideal of maritalrelationships.
Housework
Because of the Qur'anic view of marital relationships,scholars
viewed the marriagecontractas a contractfor companionshipand not as
a service contract.79As a result, they stated that the woman is not
requiredto clean, cook or serve in her house.80If she does these things,
then she is viewed as a volunteer.81Otherwise,the husbandis obligated
to bringherpreparedfood andtakecareof the house.82
Despite these facts, in many Islamic culturestoday the home is
viewed as the wife's realm,and she is viewed as responsiblefor taking
care of it and for raising the children. In fact, the Moroccanpersonal
statuscode states explicitly that one of the wife's duties is the duty to
"supervise"the household and manage it.83 In many families, this
means that the wife is requiredby law to do the houseworksince she
cannot afford house-help. This is contrary to the juristic views
mentionedabove.
Motherhood
The Qur'anviews pregnancyas an arduousexperience.84Perhaps
partiallyfor this reason, Muslimjurists do not obligate the mother to
nurse her baby, except as a last resort.85Childrenare raised by both
parentswho consult each other on importantmatters.86This fact is of
course not surprisingin light of the Qur'anic view of ideal marital
when the Prophetwas askedby a Muslim as to
relations. Furthermore,
whom should the latter honor most, the Prophet answered: "Your
79. See Abu Zahrah,supran. 29, at 166 (statingthatwhile somejuristsdisagreed,the major
juristsAbuHanifah,Malikandal-Shafi'ihaveall statedthatthe marriagecontractwas for marital
companionshipand not for servicebenefits);Bennani,supra n. 65, at 143-144 (mentioningthis
view as one of threedifferingpositionsamongjurists).
81. See Bennani,supran. 65, at 143-144;Zaidan,supran. 48, at vol. 7, 302.
82. Seesupran. 81.
83. MoroccanCode, Royal Decree No. 343.57.1 (1957), as amendedby Royal Decree No.
MoroccanCode].
347.93.1bk. 1, tit. 6, ch. 36(4) (1993) [hereinafter
84. Qur'an46:15.
85. Zaidan,supran. 48, at vol. 9, 475-480 (statingthatHanafi's,Shafi'is andHanbalis,with
minorqualifications,do not requirethe motherto nursethe child. Malikisdo, unless the wife is
froman upperclass!).
86. Qur'an2:233 (parentsconsult aboutweaningtheir child); Abu Shuqqah,supra n. 6, at
vol. 5, 104-109(providingexamplesin supportof the thesis thatspousesconsulteach otherin the
Muslimfamily).
37]
MUSLIM WOMEN'S RIGHTS
53
mother."87 The questioner then asked: "Whom should I honor most
next?" The Prophet repeated the same answer. Three times did the
Prophet repeat "You mother," and only on the fourth time did he say
"Your father."88 He also stated that paradise is under the feet of
mothers.89
Despite this surprisingly modernistic view of maternal obligations,
in today's Muslim societies Muslim women are obligated by social
pressure if not by law to nurse their children and be the primary
caretakers. Not only is this obligation contrary to tradition, but it also
often affects the human development of mothers, especially with respect
to education and career. Yet many men continue to emphasize the fact
that mother's milk has special health benefits and that her care in the
early years is crucial to the child's emotional well being. Assuming that
the thesis is correct, it is not clear that either the nurse or the caregiver
has to be the mother. A wet nurse would impart similar benefits. Wet
nurses are readily available in many countries, but are rarely used these
days because of social pressures. Yet, the Prophet himself was nursed
by a wet nurse.90 Furthermore, well-to-do families of Makkah had a
tradition of sending their children to live for several years in the desert
in order to teach them better Arabic and expose them to cleaner air.91 As
a child, the Prophet himself was sent away from the city of Makkah into
the desert to live with his wet nurse.92 He never criticized that practice.
Actually, he had warm memories of the woman who raised him.93 These
facts open the door to many scenarios of child rearing that can
accommodate the special needs of both the mother and the child without
unduly burdening either.
87. Abu AbdullahI. al-Bukhari,Sahih al-Bukharibi Hashiat al-Sindi vol. 4, 47 (9h Cent.
repr.,Beirut:Dar al-Ma'rifahn.d.) [hereinafterSahihal-Bukhari];SahihMuslim,supra n. 32, at
vol. 16, 102.
88. See supran. 87.
89. Ibn Majah, Sunan Ibn Majah vol. 2, 930 (9th Cent. repr., Beirut: Dar al-KutubalIbnMajah];Abu 'Abdal-Rahmanal-Nasa'i,Sunanal-Nasa'i bi Sharh
'Ilmiyyahn.d.) [hereinafter
al-Suyuti Wa Hashiat al-Imamal-Sindi vol. 6, 11 (Beirut: Dar al-Kutub al-'Ilmiyyah n.d.)
[hereinafterSunanal-Nasa'i].
90. Ibn Hisham,supra n. 64, at 160-176(statingalso that the Prophetoften mentionedthis
fact as partof his identity);Al-'Umari,supran. 64, at 102-103.
91. IbnHisham,supran. 64, at 162-163,n. 9.
92. See supra n. 90. The Prophetwas returnedto his motherwhen he was aboutfive years
old. Al-'Umari,supra n. 64, at 105 (notingalso thatreportsvariedas to the prophet'sage upon
his return,rangingbetweenfourandsix); Hassan,supran. 14, at 75.
93. See supra n. 90. Islamrecognizeschildrenwho nursefrom the same wet nurseas "milk
siblings." This recognitionresultsin duties and obligations. For example, milk siblings must
inquireaftereachother,andmay not marryeachother. The Prophetinquiredafterhis wet nurse.
IbnHisham,supran. 64, at vol. 1, 161,n. 6 (also listingthe namesof the Prophet'smilk siblings).
54
[Vol. XV
Clearlythen the problemin Muslim societies is not Islam but the
existing cultures. Many of these cultures continue to subscribe to
jahiliyyah (pre-Islamic)values prohibitedby Islam. The continued
adherenceto culturalvalues rejectedby the Qur'anis best exemplified
in the areaof ethnicandracialdifferencesas these relateto marriage.
MarriageandEthnicDifferences
Not only does the Qur'anteach that all humanswere createdfrom
the same nafs, but it also teaches that human ethnic and racial
differenceswere purposelycreatedby God so that we would (have an
impetusto) get to know each other(enjoy each other'scompany).94The
Qur'anadds, however,thatthe closest to God in God's sight are those
who are most pious.95 In other words, diversity is a divine blessing,
which we shouldcelebrateratherthanfear or loathe. Furthermore,
God
judges us solely in termsof ourpiety, not the color of our skin.
Still some schools of thoughtcontinueto requirethata prospective
husbandbe of the same ethnic backgroundand social status as the
prospectivewife, that his profession, financial status, and lineage be
suitableto hersor else the fathermay preventor void the marriage.96
The Structureof the Family
Some personal status codes in Muslim countries designate the
husbandas the head of the household,requirethe wife to obey him, or
both.97It used to be in Egyptthatif the wife left her maritalhome, the
police could returnher to "the house of obedience"by order of the
94. Qur'an49:13. Thetranslationof the full textof this verse is as follows:
O people,we have createdyou from a single (pair)of male and female, and made you
into nationsandtribes,so thatyou may know each other(not thatyou may despise each
other). Verily, the most honoredof you in the sight of God is the one who is the most
pious amongyou. Godhas full knowledgeandis well-acquainted(withall things).
95. Id.
96. Fora discussionof this point,see al-Hibri,MarriageLaws in MuslimCountries,supran.
21, at 231-232; al-Jaziri,supra n. 53, at vol. 4, 54-60; al-Hibri,Islam,supra n. 13, at 16, n. 74
(recountingthe story of SheikhYusuf Ali, a distinguishedEgyptianjournalistof poor origins,
whose marriageearlierthis centuryto Safiyyaal-Sadat,an aristocraticwoman,was annulledfor
lack of eligibility).
97. MoroccanCode bk. 1, tit. 6, ch. 36, art. 36 (requiringobedience);Tunisian Code,
PersonalStatusCode Decree bk. 1, art. 6 (Aug. 13, 1956 as amend. 1993) bk. 1, old art. 23
(repealed1993) [hereinafterTunisianCode] (statingthatthe husbandis the head of the family);
AlgerianCode, FamilyLaw No. 84-11 (1984) bk. 1, tit. 1, ch. 4, art. 39 [hereinafterAlgerian
Code] (requiringobedienceandstatingthatthe husbandis the headof the family). See also infra
n. 99. Fora discussionof theconceptta 'ah(obedience),see al-Hibri,Islam,supran. 13, at 18-21.
MUSLIMWOMEN'SRIGHTS
37]
55
court.98While the forcedreturnto the house is now gone, the conceptof
obedience remainsthe centerpieceof the code.99 For example, if the
wife "disobeys,"she may be denied maintenance.100That is a serious
matterfor financiallyvulnerableindividuals.
Conclusion
In short,patriarchalbias inheritedby Muslims from their cultures
survivedthe clear injunctionsof the Qur'anto the contrary.It prevented
interpretersfrom seeing the simple truthsof the Qur'anand seriously
delayed the adventof the ideal Muslim family and society. Of course,
these biases do not surpriseour Creator. The Qur'anin fact takes into
account the depth of the entrenchmentof certain culturalbeliefs and
customsby adoptinga philosophyof gradualismwith respect to social
change. Therefore,to understandthe Qur'an properly, we need to
understandits underlyingphilosophyof gradualchange.
THE QUR'ANICPHILOSOPHY
OF CHANGE
Basic Rationale
The Qur'anicphilosophyof gradualismis predicatedupon the fact
that fundamentalchangesin humanconsciousnessdo not usually occur
overnight.101Instead,they requirea periodof individualor even social
98. For a discussion of the concept of bayt al-ta'ah (house of obedience) and its legal
operation,see AshrafMustafaKamal,Qawaninal-Ahwalal-Shakhsiyyahpassim, especially 148
et seq. (Cairo:Naqabatal-Muhamin1990); Mu'awwabAbdul Nawwab,Al-Wasit 175 et seq.
(Cairo:'Alamal-Kitab1982).
99. For the existenceof the conceptof ta 'ah in the personalstatuscodes of variousMuslim
countriessee, e.g. AlgerianCode,bk 1, tit. 1, ch. 4, art.39; EgyptianCode,Act No. 25 (1920) (in
respectof Maintenanceand Some Questionsof PersonalStatus)& Act No. 25 (1929) (regarding
certainPersonalStatus Provisions)as both are amendedby Act No. 100 (1985) [collectively,
hereinafterEgyptianCode], Law No. 25, ch. 2, art. 11 RepeatedTwice (1929) (amend. 1985);
JordanianCode, PersonalStatusCode, ProvisionalL. No. 61, ch. 7, art. 39 (1976) [hereinafter
JordanianCode];KuwaitiCode,pt. 1, bk. 1, tit. 5, ch. 3, arts.84-91 (1984) [hereinafterKuwaiti
Code]; MoroccanCode, bk. 1, tit. 6, ch. 36, art. 2 (1993); SyrianCode, Decree No. 59 (1953)
(regardingPersonalStatus Law) amendedby L. No. 34, bk. 1, tit. 4, ch. 3, art. 75 (1975)
[hereinafterSyrianCode],by implicationandgenerallyas a resultof the doctrineof incorporation.
The TunisianCode bk. 1, art. 6 no longer requiresobedience by the wife. Some of these
simplybecausethe Codesmakeuse of the
provisionsonly partiallyaddressthe ta 'ahrequirement
doctrineof incorporationwhich allows the law to fall back on the officially chosen school of
jurisprudencefor guidancein instanceswherethe law is silent.
100. Supran. 99, EgyptianCode L. No. 25 ch. 1 art. 1 (1929) (amend. 1985) (the wife loses
her rightto maintenanceif she refusesto have conjugalrelationswith her husbandor leaves her
homewithoutherhusband'spermission(unlessshe has a legitimatereasonfor leaving)).
101. For a discussion of the Qur'anic philosophy of gradualism,see al-Hibri, Islamic
56
[Vol.XV
gestation. Forthis reason,the Qur'anuses a gradualapproachto change
entrenched customs, beliefs, and practices, except in fundamental
such as the belief in the unicity of God and the prophethood
matters,102
of Muhammad(SAW). Obviously, absent these fundamentalbeliefs,
the Qur'anicmessagewouldnot carryits properdivineweight.
The Qur'an flatly prohibits behavior which conflicts with
fundamentalmoral principles. For example, it prohibitsmurder,and
more specifically, female infanticide.103The gradualistphilosophy of
changewas appliedto lesser thoughquite importantmatters. The best
known example relates to the prohibitionagainst drinkingwine in a
it was imposed in stages.105A
society which was used to drinking;104
less-knownexamplecomes fromthe areaof constitutionallaw.
The Qur'an specified in a few verses only the fundamental
constitutionalcharacteristicsof an Islamicstate, such as bay'ah (voting)
and shurah (deliberation).106It left it up to the Islamic societies
themselvesto flesh out this basic constitutionalstructurein accordance
with their varying levels of social consciousness and political and
constitutionalmaturity. The disparateresults are evident across the
Muslimworld.
But the Qur'andid not recognizeonly societal variationsin levels
of consciousness and development, it also recognized individual
differences. For this reason,its philosophyof gradualchange appliedto
individualsas well. This is most evidentin the areaof ethics.
The Qur'an describes various actions and words as "good" and
This approachrecognizesthat not all humansare
othersas "better."107
the
same
or behavior. For example,in the area
of
understanding
capable
of criminallaw, some Muslimsmay insist on the rule of "an eye for an
eye" in determiningthe punishmentof a criminal. The Qur'an does
indeed introducethis standardof justice.108 But, it continues to say
repeatedly,that it is betterto forgive, and asks: How could we mortals
Constitutionalism,
supra n. 11, at 9-10. See also, Abd al-HamidMutawalli,Al-Islam 71-72
(Alexandria:Mansha'atal-Ma'arifn.d.).
102. See supran. 101.
103. Qur'an5:32 (statingthatif a personkills anotherunjustifiably,then it is as if thatperson
murderedall of humanity);6:151, 17:33 ("Anddo not take life, which God has made sacred,
exceptby way of justice and law.");17:31("Donot kill yourchildrenfor fearof poverty.");81:8
("Godwill askparentsin the afterlife:'for whatsin was the femaleinfantburiedalive?"').
104. Qur'an2:219, 4:43, 5:90. See short discussionin al-Hibri,Islamic Constitutionalism,
supran. 11, at 10.
106. Qur'an48:18, 48:10, 60:12 (commentingon bay'as). Qur'an3:159, 42:38 (commenting
on shurah). (Formoreon this, see articlereferredto in footnote94.)
107. Qur'an7:145, 39:18, 39:55,46:16.
108. Qur'an5:45.
37]
MUSLIMWOMEN'SRIGHTS
57
expect forgivenessin the afterlife,when we are so unforgivingin this
life?109 In other words, one could insist on one's right to punish a
perpetratorof a crime,but it is betterto transcendthis mode of thinking,
if one can, and forgive. Clearlythen, thereare variouslevels of being a
good Muslim; some of which are better than others. The better ones
tend to requirehigherconsciousness,deepermoral insights,and greater
toleranceof humanfrailty.
In addressing the patriarchaloppression of women and other
groups,the Qur'anutilizes the gradualistapproachto changein both the
societalandindividualarenas.
Addressingthe Oppressionof Women
The Qur'anandthe Prophetrepeatedlymentionslaves and women,
exhortingMuslimsto treatthem well.110In his last speech,KhutbatalWadaa',the Prophethimself analogizedthe statusof women to that of
powerless slaves, beseechingthe male audienceto treatthem kindly.11
Unfortunately,given theirpatriarchalblinders,many Muslimsperceived
such prescriptive statements as sanctioning the underlying social
conditions themselves. This fallacious reasoning was uncritically
109. Qur'an2:178, 4:149, 7:199, 24:22, 42:40. For a discussionof Islamiccriminallaw and
the concept of forgiveness,see Azizah Y. al-Hibri, The Muslim Perspectiveon the ClergyPenitentPrivilege,29 Loy. L.A. L. Rev. 1723-1732,especially 1728-1729(1996) [hereinafteralHibri,MuslimPerspective].
110. See e.g. Qur'an49:13, 24:33, 8:70. See also IbnMajah,supra n. 89, at vol. 2, 1216-1217
(quotingthe Prophetas saying that slaves are "yourbrothersunderyour control, feed them of
what you eat, dress them of what you wear, and do not charge them with tasks beyond their
capabilities.If you do, thenhelp them.").See infran. 111 for hadithsrelatingto women.
111. Sahih al-Bukhari,supra n. 87, at vol. 3, 262 (quotingthe Prophetas admonishinghis
male audience:"Letnot one of you whip his wife like a slave, then have sexual intercoursewith
her at the end of the day.");Ibn Hisham,supra n. 64, at vol. 4, 604 (quotingthe Prophet,in his
Khutbatal-Wadaa'as sayingto men:"Be good to women;for they arepowerlesscaptives(awan)
in yourhouseholds. You took themin God's trust,andlegitimatedyoursexualrelationswith the
Word of God, so come to your senses people, and hear my words ...," also providingthe
meaningfor the word "'awan");Abu Ja'faral-Tabari,Jami' al-Bayanfi Tafsiral-Qur'an vol. 4,
212 (9th Cent. repr., Beirut: Dar al-Ma'rifah1978) [hereinafteral-Tabari,Jami' al-Bayan]
(quotingthe samepassagequotedby IbnHisham). This passagecomes fromKhutbatal-Wadaa',
and was also mentionedin Abu Ja'faral-Tabari,Tarikhal-Tabari vol. 2, 206 (9h Cent. repr.,
Beirut:Dar al-Kutubal-'Ilmiyyah1988) [hereinafteral-Tabari,Tarikhal-Tabari]. See supra n.
110, regardinga hadithon slaves; & infra n. 112, for anotherhadithon slaves. The Prophet
recognizedthatthe statusof womenwas often no betterthanthatof slaves, a fact which reflected
his deep concernfor women. Manyauthorshave pairedthe two categoriesin theirwritings. See
e.g. 'Ala' al-Dinal-Kasani,KitabBada'i' al' Sana'i' fi Tartibal-Shara'i' vol. 2, 334 (12 Cent.
repr.,Beirut:Dar al-Kutubal-'Ilmiyyah1986) [hereinafteral-Kasani](statingthat a husbandis
entitledto punishhis wife as he does his slave). See also al-Hafizibn Kathir,Al-Bidayahwa alNihayahvol. 5, 148, 170, 202 (Maktabatal-Ma'arif,2d printingof a 14thCent.repr.,Beirut:1977)
[hereinafteribn Kathir,Al-Bidayahwa al-Nihayah].
58
[Vol. XV
validated by existing social prejudices and resulted in centuries of
and oppression. More importantly,it misunderstood
misinterpretation
and thus misconstruedthe basic Qur'anicphilosophyof gradualismby
perpetratingthe status quo instead of trying to raise consciousness. So,
it took over a thousandyears in some Muslim societies to prohibit
slavery. We should not wait anotherthousandyears to recognize the
rightsof women in Islam.
It is importantto note, however,thatwhile some Muslim societies
and individualsmisunderstoodthe full force of the Qur'anicmessage,
otherswith a higherlevel of consciousnessdid not. For example,while
in the past some Muslims kept slaves arguing that slavery must be
acceptablesince it was referredto in the Qur'an,othersunderstoodthe
ideal of Islamand freedtheirslaves to gain favorin God's eyes.12 It is
also for this reason that while some Muslims continue to engage in
polygamy,many pious male scholarshave refusedto marrymore than
one woman for fear of violating God's express Qur'anicwarning that
polygamousmen will be guiltyof injustice.113
Having raised the issue of polygamy, I must now addressit, and
discuss the Qur'anicverse referringto it. It is a question of major
concernfor many Muslimwomen, even in NorthAmerica. I shall then
turnto anotherissue of concernto our community;namely that of wife
abuse.
PolygamyandIts CulturalEntrenchment
The Qur'anwas revealed to a culture steeped in polygamy. In
Jahiliyyah,men marriedmorethana hundredwomen at a time.114It was
therefore unrealistic, given human nature, to prohibit polygamous
behaviorabruptly. The Islamic approachto this situationas in other
matterswas to limit the practiceseverely,designateavenues for ending
of the ideal state of affairsthat
it, andprovidea prescription/description
excludesthe practice.
112. Fora discussionof the Qur'anicview of slavery,see Hassan,supran. 14, at vol. 1, 186192 (explains that the Qur'anrecognizedslavery only as a transitionalcondition and that it
providedvariousmethodsfor its elimination;recountshadiththat all believers,whetherfree or
enslaved,are siblings,andno Arabis betterthana non-Arabexcept to the extentof the former's
piety). A variantof this hadithis mentionedin al-Tabari'saccountof Khutbatal-Wadaa'(The
farewellspeechof the Prophet);TarikhAl-Tabari,supran. 111, at vol. 2, 206. See also Qur'an
49:13. Despitethis Qur'anicposition,slaverywas not abolishedfromall Muslimcountriesuntil
earlierthis century,andonly afterthe international
communitydenouncedthepractice.
113. Qur'an4:129.
114. See Sa'id al-Afaghani,Al-Islamwa al-Mar'ah21-29 (Damascus:TarrakiPress 1945);alHibri,IslamicHistory,in WomenandIslam209 (London:PergamonPress 1982).
37]
MUSLIMWOMEN'SRIGHTS
59
The Qur'anicstatementon polygamy is more complex than some
scholarsare willing to admit. For example,the permissionto marryup
to four wives is premisedupon the possibility that orphanwomen may
be oppressed.11The significanceof this conditionhas been overlooked
by many scholars. Yet, it clearly links the permissionto marrymore
than one woman to a specific situationand an obsolete practicewhich
were both in existenceat the time of the Prophet. The Qur'anstatesthat
if men fearedbeing unjusttowardsorphans,then these men may marry
up to four wives so long as they treatthem equitablyand fairly.16 Yet
the Qur'an states in the same chapter that it is not possible to be
equitableand fair in these situations.117Although it is not possible to
understandthis verse about polygamy in all its complexity without
understandingfully the social practice it was revealed to avoid, one
thing is neverthelessclear: the Qur'anexpressly states that polygamy
results in injustice.18 Consequently,it is not an optimal way of
arrangingmaritalrelations. For this reason,some pious men abandoned
polygamy in the hope of reachinga higher state of maritaland human
relations,namely the one describedin the Qur'an.119Othersopted for
the minimal standard,despite its questionableapplicationto contexts
broaderthanthose referredto in the revelation.
Violence AgainstWomenandIts CulturalEntrenchment
Anotherexampleof Qur'anicgradualismappearsin the verse most
often quotedto justify violence againstwomen. It states that: "[a]s to
those women on whose part you fear disloyalty and ill conduct,
admonishthem (first), (next) refuse to sharetheir beds, (and last) beat
them (lightly)."'20So, Let us examine this verse next, as well as the
circumstancesof its revelation.
The Jahiliyyah society was a rough desert society, plagued by
tribalwars.'12 ManyJahiliyyahmen beat theirwives. They carriedthis
practiceinto Islam and were so violent that the women complainedto
the Prophet (SAW) about the situation.122Acting on his own, the
115. Qur'an4:3 (emphasisadded).
116. Id.
117. Qur'an4:129.
118. Id.
119. I personallyknow many sheikhs,some of whom are now deceased,who preferredto be
monogamousratherthanrunthe riskof beingunjust.
120. Qur'an4:34.
121. Hassan,supran. 14, at vol. 1, 4-8, 52-61.
122. Nasr al-Din al-Baydawi,Tafsiral-Baydawi111 (19th Cent. repr.,n.p. Dar al-Fikr1982)
(recountingthe story of a woman who came to the Prophetto complain about her abusive
60
[Vol. XV
Prophet(SAW) prohibitedthe practiceby allowing the wife the rightto
Thatvery evening, the men complainedloudly.124
qisas (retribution).123
came
to
the
They
Prophetandrevisitedthe issue, arguingthathis ruling
allowedtheirwives to gainthe upperhand.'25
At that point, the Prophetsought and received a revelationwhich
reflectedthe Qur'anicphilosophyof gradualism.The verse appearedto
contradictthe Prophet.The Prophethimself statedwhen he receivedthe
revelationthat "Muhammadwanted,but God did not want (to ordera
flat ban on "hitting"one's wife)."126As we shall see later,however,the
revelationsimply changedthe approachprescribedby the Prophetfor
eradicatingwife abuse. It did not authorize wife abuse. It only
introduceda transitorystage for change, while preservingthe Qur'anic
view of idealmaritalrelations.
rule in Islam, that"versesin the
It is a well-knownjurisprudential
each
the
other,"i.e.,
Qur'anexplain
Qur'anis an integralwhole andthus
and
of
the full
proper meaning any verse cannot be understoodin
isolation from otherverses in the rest of the Qur'an.127Relying on this
fundamentaljurisprudential
principleand the principlewhich assertsthe
internal
consistencyof the Qur'an, I now turn to a popular
thorough
verse in the Qur'anthatEarlyMuslimwomen at times insertedin their
marriagecontracts.128The verse enjoins spouses to "live together in
kindnessor leave each othercharitably."(Qur'an2:231) Based on this
and otherverses in the Qur'an,Muslimjurists assertedthe principleof
prohibition of harm among spouses (la dharar wala dhirar).'29 This
principle still underliesmany provisionsin the modem personalstatus
codes in Muslim countries.13 Additionally,a Muslim woman has the
rightto takeherhusbandto courtor divorcehim for abusingher.131
husband).
123. Id. Formoreon the conceptof qisas, see al-Hibri,MuslimPerspective,supra n. 109, at
1727-1730.
124. Al-Tabari,Jami' al-Bayan,supran. 111, at vol. 5, 37; Ibn Majah,supran. 89, at vol. 1,
637.
125. Abu Dawudal-Sajistanial-Azdi,SunanAbi Dawud vol. 2, 252 (9thCent. repr.,Beirut:
Daral-Jil 1988);IbnMajah,supran. 89, at vol. 1, 637.
126. Id.
127. Manna'al-Qattan,Mabahithfi 'Ulumal-Qur'an83-84 (Cairo:MaktabatWihbah1981);
Badral-Din al-Zarkashi,
Al-Burhanfi'Ulumal-Qur'anvol. 1, 35-50 (15thCent.repr.,Beirut:Dar
al-Jil 1988).
128. Al-Tabari,supran. 111, at vol. 4, 215.
129. Zaidan,supran. 48, at vol. 7, 234-235.
130. See al-Hibri,Islam,supran. 13, at 13 (especiallyfootnotes58, 59 & relatedtext).
131. Id. See also Hassan Hassan Mansour,Al-Muhitfi Sharh Masa'il al-Ahwal alli al-Tiba'ahwa al-Nashrwa alShakhsiyyah213, 214 (Alexandria:al-Mu'assasahal-Wataniyyah
Tawzi' 1998), Ahmad Ghandour,Al-Ahwal al-Shakhsijyahfi al-Tashri' al Islami at 234 (Kuwait:
Jami'atal-KuwaitPress1972).
37]
MUSLIMWOMEN'SRIGHTS
61
The Prophethimself denouncedrepeatedlyspousal abuse. On one
occasion,he asked"Howcan one of you hit his wife like an animal,then
he may embraceher?"132On another,he asked: "How can one of you
whip his wife like a slave, and he is likely to sleep with her at the end of
the day?"133
The Prophet(SAW) also echoed various Qur'anicdescriptionsof
ideal maritalrelations,he told the men: "Thebest among you, are those
who are best towardstheir wives."134He added, "and I am the best
among you in that respect."135This statementis significantgiven the
emphasisMuslimsplace on emulatingthe Prophet. He was gentle and
kind to his wives and never raisedhis handagainstany of them.136He
cut meat, took care of children, and sewed his shoes.137 Yet many
Muslim men today forget these importantProphetic statements and
examples, and limit their emulationof the Prophetto the style of his
dressor his groominghabits.
How do we reconcile all these facts, Qur'anicand prophetic,with
the single Qur'anicverse that permits husbandsto "hit"their wives?
How do we reconcilethe verse with the Prophet'scontinuedinsistence
that husbands abstain from beating their wives? We do that by
developing our insights further to gain a deeper understandingof
Qur'anicmeaning. This is not a quickprocess. In this case, I shall take
a few stepsalongthis roadto illustratemy point.
THE PHILOSOPHYOF GRADUALISM AND VIOLENCE AGAINST WOMEN
This is how the philosophyof gradualismwas used in the context
of wife abuse. First, the Qur'an imposed on the husband various
limitationsbefore he was permittedto resort to "hitting." He was
requiredfirst to communicatewith his wife. The man must advise his
wife aboutwhat he thinks she did wrong. This step gives the wife the
chanceto respondand explain. If the misunderstanding
is not resolved
by communication,and the husband remains angry, he can separate
himselfphysicallyfromhis wife for a while.
132. Sahihal-Bukhari,supran. 87, v. 4 at 57.
133. IbnMajah,supran. 89, at vol. 1, 638.
134. Ahmad Fa'ez, Dustur al-Usrafi Thilal al-Qur'an 161 (Beirut: Mu'assasatal-Risalah
1982)[hereinafter
Fa'ez];IbnMajah,supran. 89, at vol. 1, 637.
136. IbnMajah,supran. 89, at vol. 1, 637.
137. Al-Ghazali,supra n. 33, at vol. 2, 354. See also Abu al-Hassanal-Nadawi,Al-SirahalNabawiyyah370 (Jeddah:Daral-Shuruq1977).
62
[Vol. XV
Manyjuristsviewed these stepsas directedagainstthe wife, firstto
"admonish"her, then to makeher "sufferfrom sexual abandonment."138
Clearly,they missed the fundamentalpoint. These prescribedstages are
steps in anger managementfor an aggressive patriarchalmale who is
likely to use force as a firstresort.
Second, the Qur'an totally excludes righteous women from the
scope of "hitting."'39It limits the possibility of "hitting"one's wife to
extremecases in which nushuzis fearedby the husband.140
Accordingto
majorjurists,nushuzis a wordthatin the contextof the verse appearsto
refer to disloyalty towards the husband, dislike, disobedience, or
discord.141This is a questionableinterpretation,because the Prophet
himself appearsto have interpretedthe word "nushuz"differentlyin his
Khutbatal-Wadaa'. Accordingto variousreports,the Prophetstatedin
that address, "You [men] have rights against women, and they have
rightsagainstyou. It is your rightthat they do not bring someone you
dislike into your bed, or that they commit clear adultery (fahishah
mubayyinah).If they do, then God has permittedyou to desertthem in
bed, and [then] hit them lightly. If they stop, you are obliged to
maintain them."142Unfortunately,some jurists have interpretedthe
word fahishah mubayyanahbroadly to include disobeying one's
husbandin less significantmatters.143
Others,however,have maintained
thatit is simply adultery.'44We now turnto discuss this matterfurther,
138. Muhammadal-Dusuqi,Al-Usrahfi al-Tashri' al-Islami 164 (Doha: Dar al-Thaqafah
1995);AbuZahrah,al-Ahwal,supran. 29, at 163;Zaidan,supran. 48, at vol. 7, 313-314.
139. Qur'an4:34.
140. Id.
141. See e.g. Fa'ez, supra n. 134, at 157; al-Tabari,Jami' al-Bayan,supra n. 111, at 40. See
also infran. 142.
142. Ibn Kathir,Al-Bidayahwa al-Nihayah,supra n. 111, at vol. 5, 148; al-Tabari,TarikhalTabari,supra n. 111, at vol. 2, 206. Otherreports,even by al-Tabariand Ibn Kathirthemselves
to the conceptof nushuz,as presentedby the Prophetin his last
addthe elementof "disobedience"
address. See supra n. 111. See also Abu Zakaryyahal-Nawawi,Rawdatal-Talibinvol. 5, 177
(13thCent.repr.,Beirut:Dar al-Kutubal-'Ilmiyyah1992) [hereinafteral-Nawawi](arguingthat
nushuz includes leaving the marital home without permission (but not for verbal abuse),
abstainingfromsexualenjoyment,refusalto cohabit).
143. See e.g. Ibn Kathir,Al-Bidayahwa al-Nihayah,supra n. 111, at vol. 5, 202-203; alTabari,Jami' al-Bayan,supra n. 111, v. 4 at 212. These variationsare the resultof independent
reportingof the addressby variousparties. The Qur'andoes requirethe husbandto stop "hitting
the wife whenshe obeys,"but herobedienceis not directedto the husbandper se. Rather,it is a
responseto his admonishment(wa'th) that she shun adulterousbehavior,a majorsin in Islam.
Qur'an4:34.
144. See e.g. Ibn Manthur,Lisan al-'Arabvol. 10, 192 (2d printingof a 13th Cent. repr.,
Beirut: Dar Ihya' al-Turath al-'Arabi 1992) (quoting Ibn al-Athir as defining fahishah
mubayyinah,occurringin the Prophet'slast address,as adultery;also statingthatothersdefine it
as extremesin and as leaving the maritalhome withoutpermission);MuhammadMurtadhaalZabidi,Tajal-'Arusvol. 4, 331 (18thCent.repr.,Beirut:ManshuratDar Maktabatal-Hayatn.d.)
37]
MUSLIMWOMEN'S
RIGHTS
63
before answeringthe last questionin this discussion, namely "what is
hitting?"
Manyjuristsliving in patriarchalculturesbroadenedthe definition
offahishah mubayyanahsignificantly.145By broadeningthis definition,
they broadenedthe scope of instancesin which the husbandmay resort
to "hitting." This is againstthe letter and spirit of the Qur'anwhich
states that husbandsshould live with their wives in kindness or leave
them charitably.'46Nevertheless,even if we were to accept the broader
definitionoffahishah mubayyinah,the man still cannot"hit"his wife as
a first resort;on this fact majorscholarsagree.147He is requiredto take
If all these steps fail, then
several steps before resortingto "hitting."148
the husbandmay fall backon his originalapproachof "hitting"his wife.
The Qur'anicConceptof"hitting."
But what does "hitting"mean in this case? Many scholars have
pondered over the Qur'anicpermission to "hit" one's wife, and its
attendantcircumstances.Giventheirdeep belief in Islamicjustice, they
realized that they must look deeper into the Qur'an for a better
understandingof this verse. So, they have interpretedthis passage, as
they should, in light of the basic principlesgoverningmaritalrelations
as articulatedby the Qur'anand the Prophet.149 This approachforced
them to modify their common understandingof the act of marital
"hitting." As a result, these jurists issued a series of limitations
redefiningthe act of "hitting"itself.150For example, the man may not
(quotingal-Jawhariand Ibn al-Athiras definingfahishah mubayyinahas adultery. Also stating
that others defined it as extremesin, and that al-Shafi'i defined it as verbal abuse towardsthe
wife's in-laws).
146. Qur'an2:229.
147. See e.g. al-Kasani,supran. 111, at 334 (the conjunction"and"in the revelationrequiresa
sequenceof actions:firstadmonishingthe wife, thendesertingher bed, and finally"hitting"her);
Wihbah al-Zuhayli, Al-Fiqh al-Islami wa Adillatuh vol. 9, 6855-6857 (Damascus: Dar al-Fikr
1997) [hereinafteral-Zuhayli].CfJal-Nawawi,supran. 128, at 177 (quotingal-Hinatiwho argues
thatthe sequentialinterpretation
is only one of threepossibleones).
148. The majorityof scholarstake the sequentialapproach. Accordingto them, the husband
must first admonish,thendeserthis wife's bed, and finallyresortto hitting,althoughsome argue
thatit is betternot to reachthe thirdstage at all. See text accompanyingsupra n. 138 aboutthe
sequentialapproach.Al-Zuhayli,supran. 147, at vol. 9, 6857 arguesthatit is betterto threaten
withoutactually"hitting."He baseshis view on the factthatthe Prophetneverhit a woman.
149. Majoramongthese is the Qur'anicverse which ordershusbandsto live with theirwives
in kindness,or leave themcharitably.Qur'an2:229. Formore,see suprann. 66-68 & relatedtext.
Forhadith,see also suprann. 121, 122, 133 & relatedtext.
150. Amongtheseis the sequentialinterpretation
of the Qur'anicverse4:34. See supran. 147.
Otherlimitationsare mentionedin al-Tabari,Jami' al-Bayan,supra n. I11, at vol. 5, 43-45 (the
man may not hit the womanin the face, or hit hardor leave an (harmful)effect (dharbghayr
64
[Vol. XV
hit his wife on the face.'51Furthermore,
any "hitting"which is injurious
or leaves a mark on the woman's body is actionable as a criminal
if the husbandreachesthatunfortunatestage of
offense.152Furthermore,
wife
he
hit
the
only with somethingas gentle as a miswak
"hitting," may
(a soft small fibroustwig used as a toothbrushin the ArabPeninsula).'53
Finally,given the Qur'anicideal of maritalrelations,scholarsconcluded
that a woman abusedphysically or verballyis entitledto divorce from
her husband.154They lowered the bar significantlyon what counts as
abuse. This position was developed in ancient Arabia, over fourteen
hundredyearsago when the world viewed beatingone's wife as a right.
Today, we can transcendthe earlier stages of human interactionand
insist on the achievable Islamic maritalideal of tranquility,affection,
andmercy.
The Storyof Job
An importantQur'anicprecedenton the issue of domesticviolence
is foundin the storyof Job.'55When Job was being tested,his wife lost
As a result,he took an oath to strikeher as
her faithandblasphemed.156
was thus created: a Prophet should not
A
dilemma
punishment.157
and
in
violent
such
unworthybehavior. In addition,a Prophet
engage
may not violate his oath. The divine solution to this dilemma is
mubrahwala mu'ath.thir);al-Nawawi,supra n. 142, at vol. 5, 676-677 (Hittingmay not cause
harmor be heavy,cannotbe on the face or othervulnerableareas. If it causesharm,the womanis
entitledto damages.);al-Zuhayli,supra n. 147, v. 9 at 6856-6857 (citing medievaljurists as
requiringthat the "hitting"does not cause fear in the wife, is not directedagainst the face or
abdomen,andotherplacesthatcouldresultin seriousharm).
152. Abu al-BarakatAhmadal-Dardir,al-Sharhal-Saghirvol. 2, 512 (18thCent.repr.,Dar alMa'aref1972)(notingthatthe hittingmay not affectthe wife's bones or flesh. The husbandmay
not resortto hittinghis wife if he knows that it would be useless. If the husbandhits his wife
despitethis knowledge,she is entitledto divorceandretribution).See also al-Nawawi,supra n.
142, at vol. 5, 676-677 (hittingmay not cause harmor be heavy, cannotbe on the face or other
vulnerableareas. If it causesharm,the womanis entitledto damages);al-Zuhaili,supran. 147, v.
4 at 6856-6857 (notingthat the Hanafiand Shafi'i schools of thoughtwould find the husband
liableif he harmedhis wife. Hanbaliswouldnot.)
153. Al-Tabari,Jami' al-Bayan,supran. 111, at vol. 4, 44; Al-Nawawi,supran. 142, at vol.
5, 676-677 (hittingmay not cause harmor be heavy, cannotbe on the face or other vulnerable
areas. If it causesharm,the womanis entitledto damages);al-Zuhayli,supran. 147, v. 4 at 6856.
154. Thisview has been adoptedby some personalstatuscodes such as JordanianCode ch. 12
art. 132,supran. 89; KuwaitiCodept. 1, bk. 1, tit. 3, ch. 1, art. 126,supran. 89.
155. Qur'an38:44. I would like to thankSana' Afandi,director,Karamah:Muslim Women
Lawyersfor HumanRights,for pointingout the significanceof this story in understandingthe
Qur'anicverse4:34. I also thankmy spouseAhmadal-Haidarfor sheddingvaluablelight on the
significanceof the graduatedapproachin the sameverse.
156. Id.
157. Id.
37]
MUSLIMWOMEN'SRIGHTS
65
expressedin a Qur'anicverse. It instructsthe Prophetto satisfy his oath
to discipline his wife by "striking"her with a handful of grass (or
basil).'58 The intent of this instructionwas to satisfy the promise
without harming the wife. In this way, Prophet Job resolved his
dilemma. The Qur'anicresolutionof Job's dilemmaoffers Muslim men
a way to vent their frustrationswhich is consistent with all of the
Qur'anicverses as well as the Prophetictradition.
To summarize,the Qur'anicapproachto the problemof wife abuse
is two-pronged: first, it provides a harmonious view of marital
relationshipsbased on tranquility,affectionand mercy. These relations
are in turnbased on a view of humanitythatis characterizedby mutual
respect,equalityand dignity. Second,it develops a graduatedapproach
to the problemof wife abuse,which is aimedat cabinningthe aggressive
instinctsof the patriarchalmale, and re-channelinghis anger into more
productive,or less destructive,outlets. In doing so, the Qur'an takes
into account the very nature of human beings and the need for "a
gestationperiod"for them to achievea higherstage of developmentand
communication.
It is worth noting at this point that some jurists have already
concluded in light of the totality of the Qur'anicrevelation,that it is
better for a man not to reach the last stage of "hitting"at all.'59 If
conflict persists,anotherQur'anicverse prescribesmediation.160If that
also fails, then the partiesshouldleave each other"charitably."
CONCLUSION
In the United States and Canada,there is a sincere attempt to
overcome many deeply rooted prejudices and harmful behavioral
patterns,includingwife abusewhich has been criminalized. American
and CanadianMuslimswho are partof these societies have a historical
opportunityto live up to the highest standardsof Islam, to be the best
Muslims they can be. Given our level of social consciousness and
development,we have no excuse to continueabidingby standardsmore
suitableto those of Jahiliyyahor otherhighly patriarchalcultures. That
158. The word "dighth"in Qur'anicverse 38:44 means a handfulof grass or even basil. See
Ibn'Abdin,Raddal-Muhtarvol. 5, 659 (19thCent.,repr.,Beirut:Dar al-Kutubal-'Ilmiyyah1994)
(explainingthe meaningof "dighth"as a handfulof basil, also noting that others stated that it
meant"ahandfulof grassor thinbranches").Cf. Ibn 'Abdinarguesthatthe use of basil by Jobis
a special case, reflectingGod's mercy, and cannotbe generalizedto other women. Yet major
medievalscholarsappearto implicitlydisagree. They limitedthe husbandto the use of a miswak
or whatis similarto it
159. See n. 148.
160. Qur'an4:35.
66
time is gone hopefully forever. Furthermore, we have a duty towards
the rest of the Muslim ummah (community) to lead by example. If we
do that successfully, other Muslims in other countries, male and female,
may be moved by our insights into a faster "gestation period" to reach
the Qur'anic ideal of marital relations.

Muslim Women`s Rights in the Global Village: Challenges and

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