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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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            Nor does the Qur’an consider all those who accepted Islam as true believers.  For some have accepted the new religion as a general mode of life but failed to internalize its worldview and ethical mission:

            The desert Arabs say, “We believe.”  Say, “Ye have no faith; but you (only) say, ‘we have submitted our wills to God,’ for not yet has faith entered your hearts.  But if you obey God and His messenger, he will not belittle aught of your deeds: for God is oft-forgiving, most merciful.(49 : 14)

 

Others conformed to Islamic teachings only in appearance, but continued to harbor suspicion and doubts, even ill-will toward Islam and its adherents and advocates.[49]  It follows that believers and disbelievers can belong to all religions.

            Because believers and disbelievers cannot be distinguished on religious lines, as they run across all religions, the Qur’an urges Muslims to seek a political order based on peaceful cooperation and mutual respect, and warns them against placing religious solidarity over covenanted rights and the principles of justice.[50]    

            Equipped with the above set of principles, the Prophet managed to establish in Madina a multi-religious political community, based on a set of universal principles that constituted the Pact of Madina (Sahifatul Madina).[51]  The various rules enunciated in the Pact were aimed at maintaining peace and cooperation, protecting the life and property of the inhabitants of Madina, fighting aggression and injustice regardless of tribal or religious affiliations, and ensuring freedom of religion and movement.  It is remarkable that the Madina Pact placed the rules of justice over and above religious solidarity, and affirmed the right of the victim of aggression and injustice to rectitude regardless of their tribal or religious affiliation, or that of the culprit.

            However, it is not sufficient today for Muslim jurists to recognize the moral autonomy of non-Muslim communities, as the classical jurists did.  The Qur’anic concept of justice requires that they employ the principle of reciprocity in delineating the overall legal structure to govern the religiously and morally pluralistic societies of today.  That is, contemporary Muslim should avoid invading the moral space of other communities in as much as they would dread the imposition of alien moral or legal rules in their moral space.

 

 

WOMEN’S RIGHTS: PUBLIC EQUALITY AND FAMILY PRIVACY

When approaching Islamic sources to shed light on the issue of women’s rights, a clear distinction emerges between the rights of women in the public sphere, and their rights in the area of family law.  For while Islamic sources differentiate men’s and women’s responsibilities within the family, all limitations on women’s rights imposed by classical scholars in the public sphere were based on either faulty interpretations of Islamic texts, or practical limitations associated with the social and political structures of historical society.

            The Qur’an is unequivocal in assigning equal responsibilities for men and women for maintaining public order:  “The believers, men and women, are protectors one of another; they enjoin the right (ma’ruf) and forbid the intolerable (munkar); they observe regular prayers, practice regular charity, and obey God and His Messenger.” (9:71).  Since men and women are entrusted with the same public responsibility to enjoin the right and forbid the intolerable, one should expect that both would enjoy equal political rights.  Yet it is obvious that classical jurists deny women political equality with men.  The question therefore arises as to what is the basis of the classical position?  Jurists who deny women the right to public office base their arguments on one Qur’anic and one prophetic statement.  The Qur’anic statement reads:  “Men are the protectors (qawwamun) of women, because God has given the one more (strength) than the other, and because men support women from their means.” (4 : 34)  The word qawwamun which connotes “support” and “protection” has come to signify authority as well.  The fact that qawwamun also signifies authority is not difficult to see as the remainder of the above Qur’anic statement empowers men with the right to discipline women guilty of mischief.  But can the above verse be used to deny women access to public office?  The answer is an emphatic no.  For the authority implied by qawwamun and the obedience it entails is relevant – even under classical interpretation – within the confines of the family.  It is clear that the Qur’an does not intend to give authority to every single man over every single woman.  Nor do those who extend the implication of this verse to the public sphere expect that any single woman in society should obey any single man, known to her or not.  If this is the case, no one can invoke the notion of qawwamun to deny women access to public office.

            The other textual evidence used by classical jurists, and continues to be held by contemporary traditionalist jurists, is in the form of a hadith text that states:  “They shall never succeed those who entrust their affairs to a woman.”[52]  Reportedly the statement is a comment made by the Prophet upon hearing the news of the accession of Buran, the daughter of King Anusherawan, to the Persian throne after the passing away of her father.  I wish to argue here that there are sufficient reasons to show that  the  above  hadith  does

not stand in the face of a close scrutiny, and cannot, hence, be allowed to undermine the principle of moral and political equality between the sexes, which is firmly established in the Qur’anic texts.  (1)  The hadith statement is not given in the form of a directive, but an opinion that has to be understood in its historical and cultural context.  That is, the hadith has to be interpreted in the context of a historical society where women were not active participants in political life, and in the context of a political culture that places the hereditary rule over the principle of merit in deciding political succession. (2) The hadith is a single statement that has no support in the most authoritative Islamic source – i.e. the Qur’an. (3) The hadith stands in a direct contradiction with the principle of moral and political equality of the sexes, a principle established by numerous Qur’anic verses.  (4)  Finally, the hadith, being a singular narration (khabar ahad), is of a lesser degree of certainty than the Qur’anic narration (khabar mutawatar), and hence cannot overrule principles established in the Qur’an. 

            We have to conclude therefore that the Islamic sources support the right of women to have full access to public office, and to enjoy complete equality with men in public life.  Our discussion of the notion of qawwamun, which provides men with a degree of authority over women, must be confined to the realm of family life.  It is in the family, and in the family alone, that all of the practices cited by the critics of shari`a as instances of gender inequality can be found, namely polygamy, unequal inheritance, and inter-religious marriages.[53]  Defenders of these inequalities among contemporary Muslim intellectuals have cited various biological, psychological, and functional bases to justify inequalities within a framework of complementary family roles.  Western critics, on the other hand, dismiss gender role arguments as outdated and irrelevant, and insist that for women to live a life of dignity, society must declare the two sexes absolutely equal, and reject any legal rule that sanctions differentiation among the sexes.


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