Canada: Women’s experience of the Shariah as ideology

The debate is embedded in the history of polemics between Islam and the West, and the anti-colonial and nationalist discourses of the first half of the 20th century. With the rise of political Islam in the second half of the century, and the Islamists’ slogan of ‘Return to Shariah’, the debate took a new turn and acquired a new dimension. It became part of a larger intellectual and political struggle among the Muslims between two understandings of their religion and two ways of reading its sacred texts. One is a legalist and absolutist Islam, premised on the notion of ‘duty’ (taklif), which makes little concession to contemporary realities and the aspirations of Muslims. The other is a pluralist and tolerant Islam, premised on the notion of ‘right’ (haqq), which is making room for modern realities and values such democracy, human rights and gender equality.

I want to focus on two aspects of these developments. My remarks are based on research I have been doing since the early 1980s on the theory and practice of Islamic family law. In the 1980s, I conducted anthropological fieldwork in family courts in Tehran and Morocco, studying family disputes and the strategies of litigants, mostly women.[1] In the 1990s, I studied the ways in which notions of gender difference are debated, constructed, and deconstructed by the custodians of the Shariah in Iran – that is, the Shi‘a clerics. I did this through the study of Islamic legal texts (fiqh) and discussions with a number of clerics in the Qom seminaries. [2]

My first focus is on the meaning and role of Shariah family law today; and the second is on the criticism of gender biases in Shariah family law that has been voiced by both Muslim feminists and new Muslim reformist thinkers. I conclude by arguing against the pervasive and pernicious polarization between secular and religious feminism, which has bedeviled contemporary Muslim women’s struggles for gender justice.

Let me begin with what I learned when I began fieldwork in family courts in Tehran in the early 1980s. This was the heyday of Islamic ideology in Iran, shortly after the dismantling of the family law reforms that had been introduced by the Shah’s regime. Among the principal questions that I wanted to explore were: What does it mean to be married and divorced under Shariah law? How do judges (mostly clerics, then) and litigants make sense of, and relate to, a piece of legislation for which divine legitimacy is claimed? In other words, how is the relationship between the sacred and the legal in Shariah law conceptualized, negotiated and operated? Given the patriarchal bias of the law, which gives men certain privileges compared to women, I was particularly interested to find out how women cope with their inferior position in law and reconcile it with their belief in the justice of Islam. Of course, when we say “Shariah family law”, we are talking about jurisprudential or fiqh rulings, as defined by classical jurists (fuqaha), which have been selectively reformed, codified and grafted onto a modern legal system.

Among my findings, two are relevant and important to our discussion today. The first is the huge gap that exists between marriage as it is conceptualized and defined in fiqh texts, and marriage as it is lived and experienced. In fiqh, marriage is defined as a contract of exchange, whose prime purpose is to render sexual relations between a man and woman licit. It is patterned after the contract of sale; and its essential components are the offer (made by the woman or her guardian), the acceptance by the man, and the payment of dower or mahr, which is a sum of money or any valuable that the husband pays or pledges to pay the wife on the consummation of the marriage or later. The marriage contract establishes neither commonality in matrimonial resources, nor equality in rights and obligations between spouses. The husband is the sole provider and the owner of the matrimonial resources, and the wife remains the possessor of her mahr and her own wealth.

The procreation of children is the only area the spouses share, and even here, a wife is not legally obliged to suckle her child unless it is impossible to feed it otherwise. With the contract, the woman comes under her husband’s ‘isma (a mixture of authority, dominion, and protection), entailing a set of defined rights and obligations for each party; some have legal force, others depend on moral sanctions. The boundary between the legal and the moral is hazy and shifting. Those rights and obligations that have legal force revolve around the twin themes of sexual access and compensation, embodied in the concepts of tamkin (submission) and nafaqa (maintenance).

In line with the logic of contract, a man can enter more than one marriage (up to four) at a time, and can terminate each contract at will. Repudiation (talaq) is the husband’s exclusive right: he can unilaterally terminate the contract: he needs neither grounds, nor his wife’s consent. A wife can obtain release from the marriage contract by offering the husband inducements, usually by returning her mahr, to consent to a divorce by mutual agreement (khul‘). If she fails to obtain his consent, then her only recourse is to the intervention of the court, where she needs to establish a valid ground.

This, in a nutshell, is the fiqh definition of marriage and the rights and duties that it entails. This is the default condition that a Muslim wife accepts when she signs her marriage contract, unless she succeeds in having terms and stipulations included. Most women come to learn about the fiqh conception of marriage only when the marriage is under strain or when they find themselves in court. It is then that they learn what they had got by signing the marriage contract. In fact, no marriage will survive if the couple lives by its terms, which are reduced to sexual submission (tamkin) by the wife, and feeding and maintenance by the husband (nafaqa). Legally speaking, a woman has no duty to care for the house or even to suckle her children; for these acts, she can demand wages; while, legally speaking, a husband can ask for his wife’s sexual services any time and anywhere he desires.

Marriage in practice as a social and cultural institution among Muslims goes far beyond its legal/fiqh construction. Some of its features are rooted in the ideals of the Shariah – in which marriage is based on mutual respect, cooperation and harmony – but none of these ideals are translated into legal terms. They are simply not reflected in fiqh rulings. They do not sit comfortably with the definition of marriage as a contract of exchange patterned after the contract of sale.

The early jurists had no qualms in speaking of marriage in these terms. It is common to come across phrases referring to nikah (marriage) as a kind of enslavement (Al-Ghazali), or as a contract through which a man acquires dominion over a woman’s vagina (Muhaqqiq Hilli) or describing the dower as analogous to a sale price, that is, as entailing the same fundamental conditions as those attached to a sale.[3] Such a conception of marriage, and such a way of talking about marriage, are so repugnant to modern mentalities and values, so alien from the experience of marriage among contemporary Muslims, that no one writes or talks in these terms today. Yet it is there, alive, in the legal subconscious; and it comes up when marriage breaks down. It is then that women find, to their horror, that they are at the mercy of their husbands, and it is then that men can take advantage of the legal privileges that the contract has given them.

In other words, what my research in the courts suggests is that, for men and women who come to court to get out of a marital impasse, the sacred in the Shariah is irrelevant. The same is true for the judge, who is bound by a legal code that is in many ways a translation of the fiqh concept of marriage. All this, in a nutshell again, places Shariah family law in practice on the same level as other systems of law, and challenges the claim of its sanctity.

So if, as I suggest, Muslims in their adherence to Islamic legal precepts are motivated by the exigencies of social reality, rather than by religious ideals, then how can we explain the demand for Shariah law, and its central place in the contemporary Muslim scene? In other words, why has Shariah become such a sensitive issue for Muslims? Why do demands for its application or reform stir up such emotion?

One apparent answer is that the provisions of the Koran were most abundant and explicit in the area of personal relations, thus the boundaries between the sacred and legal remain blurred and open to manipulation in Shariah family law. It is also the most developed field of classical Islamic jurisprudence, which in modern times has been claimed as the foundation of the ideal Islamic society – of course by the Islamists.

To understand why this is the case, as I already said, we need to look at the place and role of Shariah and its relevance to the family in contemporary Muslim social life. This takes us into the domain of politics, and we can talk about it at macro and micro levels.

At the macro level, a host of factors, both internal and external to Muslim societies and individuals, have resulted in a form of distorted change, which some have called ‘neopatriarchy’.[4] In this peculiar duality, modern and patriarchal orders coexist, often in a contradictory union, and here the Shariah has come to acquire a special place. It symbolizes a golden past and compensates for a present that has been embittered by ties of dependency and feelings of marginalization; it acts as a buffer against rapid erosion of the traditional way of life and aggressive invasion by foreign values; it provides a refuge in a world permeated by uncertainty; it is an innate answer to the crisis of identity; and above all, it is an ideology which is used to justify unequal relations, of which gender relations are only one facet. An ideology that can claim divine roots is thereby more persuasive.

The same is true at the micro level of the family, where Shariah becomes an ideology whose present function is to perpetuate a certain type of relations within the family by restraining women’s sphere of action. Its relevance to today’s Muslims must be seen in this light. Its present function is to silence Muslim women’s voices of dissent and to prevent them from making dignified choices in their private and social lives.

But we must not forget that every ideology carries the seeds and the means for its own mutation. This takes me to my second – briefer – point: the emergence of a critique from within. One paradoxical, and certainly unintended, consequence of the rise of political Islam and the slogan of “Return to the Shariah” has been the opening of a new phase in the politics of gender in Islam, enabling Muslim women to sustain a critique of the patriarchal notions of the Shariah in ways that were not possible before. The central question that they are asking is: to what extent does Shariah family law, found in fiqh, jurisprudential texts, reflect the values and ideals of marriage in Islam? In other words, are these laws sustainable and in line with the objectives of the Shariah (maqasid al-shariah) under the conditions prevailing in Muslim societies? Are they in line with the values and sense of justice of Muslims? In short, how shar‘i or Islamic are these laws?

Hojjat ol-Islam Mohsen Kadivar, an Iranian reformist jurist, has recently argued that a law can qualify as ‘Islamic’ only when it meets three criteria.[5] The first is its rational basis: it must satisfy the rational demands of the time. Secondly, it must be just, in line with justice of its time. Thirdly, it must be more advanced and progressive than existing laws in other societies. The laws introduced by the Prophet met all these criteria. People accepted them, not because the Prophet had introduced them, but because they corresponded with their sense of justice and ideas of rationality as well as being more advanced and progressive than existing laws. Is the same true of what is now claimed to be Shariah family law? Based on my own empirical research over two decades, I can with confidence say it is not: what is claimed to be ‘Shariah family law’ often does not meet these three important criteria.

Let me conclude by saying that recent developments are breaking down the opposition between ‘religious’ and ‘secular’ feminism that has been in part a legacy of the politics of colonialism, in which Islam and a demand for gender equality were defined as implacably opposed. This opposition, as Abdullahi An-Na’im rightly reminds us, is arbitrary and at times false, but its implications are too grave and pernicious to be ignored.[6] The legal gains and losses of Muslim women in the 20th century suggest that there can be no sustainable gains unless this opposition is overcome and fiqh models of family and gender relations are debated and changed within an Islamic framework. Otherwise, Muslim women’s quest for justice will remain hostage to the fortunes of various political tendencies and a battleground between forces of traditionalism and modernity, as has been the case in the 20th century in Muslim-majority countries, or between the forces of multiculturalism and religious freedom in countries like Canada where Muslims live as a minority.

Footnotes

1. Ziba Mir-Hosseini, Marriage on Trial: A Study of Islamic Family law, Iran and Morocco Compared (London: IB Tauris, 1993 & 2000).
2. Ziba Mir-Hosseini, Islam and Gender: The Religious Debate in Contemporary Iran (Princeton University Press, 1999).
3. For discussion of this, see Ziba Mir-Hosseini, “The Construction of Gender in Islamic Legal Thought: Strategies for Reform”, in Hawwa: Journal of Women in the Middle East and the Islamic World, 2003, Vol 1, No 1, pp. 1-28; and Kecia Ali, “Progressive Muslims and Islamic Jurisprudence: The Necessity for Critical Engagement with Marriage and Divorce Law”, in Omid Safi (ed), Progressive Muslims on Justice, Gender, and Pluralism (Oxford: Onewold, 2003).
4. Hisham Sharabi, Neopatriarchy: A Theory of Distorted Change in Arab Society (Oxford University Press, 1988).
5. Some of his writings are available in English at www.Kadivar.com. See, for example, http://www.kadivar.com/Htm/Farsi/Speeches/Speech820615.htm.
6. For an excellent discussion, see Abdullahi An-Na’im, “The Dichotomy between Religious and Secular Discourse in Islamic Societies”, in Mahnaz Afkhami (ed), Faith and Freedom: Women’s Human Rights in the Muslim World (London: I B Tauris, 1995).