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Human Rights and Islamic Legal Reform PDF Print E-mail
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Research - Law
Written by Louay Safi   
Aug 11, 1998 at 08:00 PM
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Human Rights and Islamic Legal Reform
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            When we turn to examine the attitude toward women in historical shari`a we find that the situation here is more perplexing.  For, on the one hand, one can see clearly that shari`a considers women as autonomous persons with full legal capacity: they enjoy full control over their property; their consent is required for marriage and they have the  

right to initiate the process of divorce; they can initiate legal proceedings and can grant or receive the power of attorney; they can even assume public office and serve in the capacity of judges.  But, on the other hand, one can also see that the historical prejudice against women in general has worked against them in the historical Muslim society, and that Muslim jurists managed to undermine their independent legal personality by a host of legal devices.  However, it can be easily demonstrated that the desire to place limitations on the civil and political rights of Muslim women was not of the same intensity across legal schools.  The most conservative stance came from the Hanbali, and, to a lesser degree, the Shafi‘i schools.  The Hanafi school displayed, on the other hand, a more liberal attitude toward women, allowing them more leverage in pursuing their civil rights.

            While Shafi‘i and Malik permit, for instance, the father to compel his daughter in matters of marriage, Abu Hanifa, al-Thawri, al-Awza‘i, and the majority of early jurists insist that a girl has the final say in marriage matters.[25]  Similarly, Shafi‘i requires the consent of the guardian of a woman for the validation of marriage, whereas Abu Hanifa, al-Shu‘bi, and al-Zuhri permits a woman to marry herself despite her family disapproval.[26]  However, all legal schools recognize the women’s right to terminate the marriage but only under conditions that vary from one school to another.[27]  Likewise, there is disagreement among jurists as to whether women can assume public office; while Ibn Jarir al-Tabari places no limitations on women’s right to assume the post of judge in all legal matters, al-Mawardi contends that women cannot be allowed to serve as judges under any circumstances.  In between stands Abu Hanifa who allows women to serve as judges but only in cases involving commercial deals.[28] 


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