Law, legal systems, equity, etc. were always an important issue regarding the organisation of our values, norms and rights. There is no society in this World which has no rules and norms, i.e. legal system which governs their life noticeably. It is common in today’s world that the nation state is the primary law giver in one way or another. It may pass laws which are directly binding upon the subject of a legal system, or the courts may have a, so to speak, secondary role in providing further legal interpretation. The issue is not a salient one, at least not on this theoretical level of legal understanding. At the end, it may even be reduced to a procedural level. On the other side the substantive part of law is much more pondered – the part where morals, values and even emotions may be involved. How a legal norm is created, accepted and then brought to life within a society, is the subject of many theories and legal scholars. For those coming from a ‘western’ legal system, other legal systems (and with that even values), such as Islamic Law, are foreign and often misunderstood and subjected to criticism (justified or unsubstantiated).
Islam as a religion is often interpreted in different news titles in one way or another for this or that reason. In short, it is a monotheism exclusive of the trinity and reincarnation found in the Christian monotheism. Mohammed did not present himself as divine, he revived the Jewish prohibition of graven images, and forbade the use of wine. It is true that some interpretations of Koran witness to the necessity of there being a duty of the faithful to conquer as much of the world as possible for Islam, however, the Christians, Jews and Zoroastrians (The People of the Book) were not to be persecuted. In this era, from around 622 (The Hegira -Mohammed’s flight from Mecca to Medina) to around 732 (battle of Tours), Islam spread rapidly (Russel 1969, 391). This short segment is not meant to provide a substantial understanding of the Islamic theology, but is intended to show the contrast within a religion and the importance of the time in which it was ‘created’. For example, when Mohammed thought the world was coming to an end, he announced the hajj (annual pilgrimage to Mecca). In his leave-taking sermon, he encouraged his followers to deal justly with one another and treat women well (Warren 2008, 33–34). A person taking interest in society would soon notice the dissonance between the mentioned message of the last sermon and the definite position of women in the Muslim world today.
In Saudi Arabia, women are just starting to get their driving rights; in Afghanistan, some women are still afraid to abandon their burqas. As I have mentioned in the introduction, law is a meeting point of morals, values, system and society in a certain time and place. In translation, this means that such ideas have significances. For example, in 2007, an Iranian woman and her partner were sentenced to death by stoning for committing adultery and bearing a child out of wedlock (Warren 2008, 34). Many secular feminists criticise patriarchal laws which are sourced in religious epistemic justification (moral paradigm and moral pragmaticism) in ‘Muslim countries’, but on the other hand, many Muslim women defend Islam as the moral shield protecting their rights (Ibidem).
As already stated, law in general is omnipresent in human societies and as such it needs its origin; this necessity is present in every legal system. It may be a ruler’s word, a statue, common law or a religious book. Islamic law originates from two major sources, divine revelation and human reasoning (similar in theory and idea to the English and Welsh common law) (Jones-Pauly in Dajani Tuqan 2011, 447–451). Simply put it is built from two different components Shari’ah (in translation ‘the right path’, indicates the path to righteousness, related to divine revelation) and fiqh (the product of human reasoning, it involves the necessity of reasoning and assumes lesser autonomy than shari’ah). In addition to the need of legal norms having a source, there must also be a sort-of constitution, a general social contract (Weiss 1998, 23–25). This ‘constitution’ in Islam is Qur’an (meaning reading or recitation) which consists of verbatim words of God and which is the source of Islamic Law and hierarchy. Second in hierarchy (what a statue or law would be in relation to a constitution) is the Sunnah (meaning the trodden path). The third source of Islamic Law is the Ijma (or consensus of opinion) and it represents a universal consensus of scholars – what is more it excludes the opinion of laymen. Understanding the general basics of a system is good, but not sufficient in law. It is also important to know how to read, understand, interpret and apply a legal norm, for example using different arguments such as; a fortiori, using teleology or syllogism etc. Something similar is also represented in Islamic Law in the form of Qias or analogical reasoning, and is used when a solution to a new legal problem cannot be found in the Qur’an, Sunnah or consensus of legal scholars (Weiss 1998, 24 –29). The law may not always be a product of scholars, state or a person in power, it may also result from custom or some recurring practices that are acceptable to people and seen as reasonable and not daft. In Islamic Law, this is represented in Urf. For example, the Qur’an specifies that husbands must provide for their wives, however, the amount itself is not specified and the Urf is used to clarify the amount that is required to be provided for (Warren 2008, 37).
Following this very brief and rudimentary presentation of the pillars of Islamic Law I shall continue with women in some aspects of Islamic Law. There is much confusion about the role of women in Islamic law. Looking at marriage, stemming from Qur’an and in some cases the Sunnah, a woman cannot get married without her consent due to the nature of the relationship, which is a contractual, not a sacramental relationship. Of course, looking at this rule in detail a lawyer would be quick to ask what is meant by consent, does it need to be of free will, what are the vitiating circumstances etc. Coming back to the issue, also dowry ought to be given to the wife herself and not the family (Ahmad Nasir 2009, 15–44). Concerning polygamy, the Qur’an permits a man to marry up to four wives unless a man feels he will not be able to do right by them. Light beating is allowed, if a husband fears disloyalty or ill-conduct from his wife. Both spouses are permitted to initiate divorce, and the Qur’an also advises women to ‘cast their outer garments over their persons when they are outside, so that they will not be molested’. Inheritance law in Islamic Law is quite complex and I will not go into detail, but over-all, the share of a son is equal to that of two daughters (Ibidem).
Legal proceedings rules in Islamic Law require that two male witnesses testify in a legal proceeding. If this is not possible a man and two women should testify instead. According to several scholars, including for example al-Bukhari, a woman cannot be a judge, because women are susceptible to forgetfulness. Punishment for adultery is one hundred lashes or even stoning according to some interpretations (Ahmad Nasir 2009, 15–44).
It may seem that Islam, as a religion, is unjust to women; however, the reason may lie somewhere else, not in religion itself. Women in virtually all societies have historically been considered naturally inferior to men, both physically and intellectually. In addition, traditions and laws are deeply rooted in patriarchy, and so unequal treatment of women under Islamic Law may not (or is not) historically anomalous (Warren 2008, 45). Inequality is not foreign to ‘western’ law or ideology as well, for example under fifth century English law, if domestic peace was interrupted the member of that family was subject to correction, verbal or physical. Stemming from that reasoning a rule of thumb was coined, which permitted husbands to chastise their wives, but only with a stick the width of a thumb (Ibidem). Also, in Christendom a woman (Eve) had brought about the fall of mankind and was therefore justly subjected to man’s control to prevent the sin from being committed once more. While there are some historical indications that Islam rendered women greater rights in comparison with the rights they previously had in the Arabian Peninsula, true gender equality never fully materialised within Islamic Law (Warren 2008, 47).
Not to be too obvious, but the world of today’s Muslims is very different from the world which Islam was born into. Some scholars believe that Islamic Law benefits from a number of inherently flexible devices that could allow its jurisprudence to take its place among the most modern and important legal systems in the world today (Jones-Pauly in Dajani Tuqan 2011, 447–451). Sharia in the context of Qur’an and Sunnah is thought to allow new interpretations in cases of necessity or public interest, or when there is a change in the facts which gave rise to the original law, or when there is a change in the custom on which a particular law was based (Layish 2017, Introduction). Women are not entirely excluded from Islamic Law discourse and are said to engage in dialogues with men about proper Islamic practices or the preferred interpretations of Islamic texts. On the other hand, the marginalisation of women from Islamic public, political and academic life after the death of the Prophet resulted in the dominance of male values and interpretations of legal text. Although some progress was made, a substantial number of scholars believe that more women should play a role in Islamic Law. Participation of women is growing; for example, Asifa Quraishi, Azizah al-Hibri and Madhavi Sunder just to mention some (Warren 2008, 56).
The main purpose of this column was to show the complexity behind a system of values, law and also religion although in a general and rather vague text (due to understandable length limitation). Muslims represent a large number of humans on this planet and in order to start a dialogue between Muslims and non-Muslims we should make an effort and get to know each other’s cultures, to put it simply. There is still a long way women in Islam (aspiring for equality) will need to go, but progress is there and Islamic Law is not so stiff and it can adapt and be modernised which is probably preferable to it remaining unchanged or it being dismissed in entirety. It will also not suffice to tackle the problem of inequality on a legal scale, but it will be necessary to open a dialogue and seek political and societal solutions. This topic is complex and will be subject to future debates – and that is good, as we need dialogue in order to have prosperity, peace and a future.
The author of this opinion piece is our contributor Aleksander Jakobčič.
Avtor prispevka je naš redni kolumnist Aleksander Jakobčič.
Jones-Pauly, Christina in Abir Tjani Tuqan. 2011. Women Under Islam: Gender Justice and the Politics of Islamic Law. London: I.B. TAURIS.
Layish, Ahron. 2017. Women and Islamic Law in a Non-Muslim State: A Study Based on Decisions of the Shari’a Courts in Israel. London: Routledge.
Russell, Bertrand. The History of Western Philosophy. London: Routledge.
Nasir, J. Jamal. 2009. The Status of Women Under Islamic Law and Modern Islamic Legislation. Leiden: Brill.
Warren, S. Christine. 2008. Lifting the Veil: Women and Islamic Law. Faculty Publications. Paper 99.
Weiss, G. Bernard. 2006. The Spirit of Islamic Law. Georgia: University of Georgia Press.