Developing a Discourse of Gender Justice in Islam
Posted Jun 27, 2010

Developing a Discourse of Gender Justice in Islam

by Yoginder Sikand

In sharp contrast to many other Muslim-majority countries, women in
Indonesia play a very significant role in the public sphere, even in the
realm of the production of Islamic discourses. The history and experiences
of Indonesian Muslim women, including their role in Islamic scholarship,
and also the prolific writings of a number of Indonesian male scholars
championing gender justice using Islamic arguments, is largely unknown
to Muslims elsewhere. The fact that the Indonesians are not Arabs is one
reason for this, of course. Another reason is that the remarkably interesting
scholarly work seeking to develop Islamic perspectives on gender
rights and equality written by both Indonesian male as well as female
scholars remains almost wholly in Bahasa Indonesia, little of it having
been translated into Arabic, English and other international languages.

Syafiq Hasyim, author of the recently-published Understanding Women
in Islam—An Indonesian Perspective, works with the Jakarta-based
International Centre for the Study of Islam and Pluralism, that has been
at the forefront of efforts to evolve socially progressive and contextually-
relevant understandings of Islam, particularly as regards women and
relations between Muslims and others. Last week, I read his simply
unputdownable book in one single sitting. Hasyim’s principle contention is
that while Islam regards men and women as ontologically equal, this has
not been reflected in the Muslim historical tradition, noteworthy exceptions
notwithstanding. Muslim historiography, theology as well as jurisprudence
continue to bear the stamp of patriarchy, and Islamic discourse, generally
speaking, continues to be heavily male-centric. All this has served to
uphold patriarchal rule, which Hasyim contends, is un-Islamic—because
male supremacism is akin to associationism or shirk, a heinous sin in Islam.


To promote his project of Islamic gender egalitarianism and justice, Hasyim
evokes the distant Muslim past, the time of the early Muslims, when, he
says, Muslim women played vital public roles, including even in the political
realm. They requested the Prophet a separate slot of time for learning,
and he granted them their request. The Quran made the acquisition of
knowledge—and this does not mean just religious knowledge, narrowly
defined, alone—binding on every believer, male as well as female. Early
Muslim women enjoyed the right to choose their spouses, dissolve their
marriages through khula, set terms and conditions in their marriage
contracts, inherit property, and use and earn their own money—all radical
measures that women elsewhere at that time could hardly dream of.
To further back his argument for Islamic gender justice, Hasyim writes
that God destined the Prophet Muhammad not to have a surviving son
perhaps ‘to prevent the making of a male cult of sons of the Prophet in
the patriarchal Arab culture’. The Prophet was taunted by his foes for
not having sons, but, unmindful of their mockery, he ‘insisted that there
was no greater reward for a Muslim than to have two daughters, treating
them well and supporting them, unless God took them into His heaven’.

Further stressing the fact that in Islam women have the same status,
qua humans, as men, the Prophet, Hasyim tells us, is reported to have
declared: ‘Women are the candle of family life’. Accordingly, he was never
violent to his wives. ‘The best among you,’ Hasyim quotes the Prophet as
having remarked, ‘is the best in treating his wives, and I am the best among
you all in treating my wives’.



Hasyim insists that Muslim women need to study and interpret Islam for
themselves, rather than rely on traditionalist patriarchs, many of who
continue to champion prejudices against women that have no warrant
whatsoever in Islam. For Muslim women to become Islamic scholars in
their own right would be no wrongful innovation, he insists, referring to the
scores of early Muslim women scholars of the Quran, Hadith and fiqh or
Muslim jurisprudence, who were recognized as equals or even as superiors
by noted male scholars of their times. He refers to their writings, as well as
the central role they played in the realm of Islamic scholarship, as ‘buried
discourses’, which he urges Muslim women to excavate and emulate.


Having dwelt at length on the gender egalitarianism of the Quran and
on what he regards as the positive role models for Muslim women in
the distant past, Hasyim traces the process of decline of Muslim women
over the centuries. This he attributes to a host of factors, including the
emergence of monarchical rule, the development of patriarchal fiqh (for
which he uses the Arabic term fiqh al-abi) and the concoction of fake
hadith reports with the specific purpose of denying Muslim women the
many rights that the Quran had granted them. This process was also aided
by borrowings from Christian, Jewish and pre-Islamic Arab sources that
were heavily biased against women. For Muslim women to recover the
hidden gender egalitarianism of the early Muslim past, it is imperative,
Hasyim writes, that the tradition of patriarchal fiqh be analysed, critiqued
and replaced, because, despite constituting an affront to the principles
of equality and justice so central to the Quran, it continues to shape the
views of millions of Muslims even today. This patriarchal fiqh, a thoroughly
historical and a human product, is premised on the untenable notion that
women are innately inferior, fickle-minded and stupid, and that they must
constantly be under male domination for their own good. Overcoming this
burden of patriarchal fiqh demands that Muslim women once again take an
active and leading role in studying Islam, as did their early sisters before
the patriarchal take-over. In this regard, Hasyim laments that, because
so few Muslim women are presently involved in the production of Islamic,
particularly fiqh-based, discourses, even issues that are specific to women,
such as childbirth and menstruation, that should have involved women in
discussions about them are handled almost entirely and everywhere by
male clerics.



Central to the process of deconstructing patriarchy in the name of Islam,
Hasyim says, is the task of critiquing critical aspects of fiqh al-munakha or
fiqh about marriage, which upholds the subordination of Muslim women
based on the notion that marriage entails the handing over of a woman to
her husband, a relationship similar to that between a seller and a buyer.
Indeed, he tells us, numerous fuqaha, scholars of fiqh, actually envisaged
marriage as similar to a commercial transaction, an agreement that resulted
in a man taking over ownership of a woman’s genitals and rest of her body,
which was for him to enjoy. This reflected the objectification of women by
men, and, in effect, their ownership by the latter. Consequently, marriage
came to be defined largely by its sexual and physical aspects, rather than
other aspects such as love and blessings that result from following God’s
will. The objectification of women through marriage subordinated women to
men’s will and control, so much so that many fuqaha went to the extent of
insisting that men, rather than women, had the right to sexual pleasure and
that a man could force his wife to satisfy his sexual desires even against
her will. Such blatantly patriarchal injunctions, Hasyim argues, are wholly
contrary to the Quran and the Hadith, which speak of spouses as equals
and as partners, without any degree of subordination or control, as
reflected, for instance, in a hadith report, ‘Women are the twin halves of men’.
This implied, in sharp contrast to the arguments of the patriarchal fuqaha,
that the husband and wife belong to each other, being made, as Islam
believes, from nafs wahida, one common breath or primal matter.


Critiquing further aspects of patriarchal fiqh prescriptions as regards
marriage, Hasyim writes that while Islam gives women the right to choose
their spouses, the fuqaha have tried to circumscribe the right by insisting
that a girl’s marriage cannot be considered valid without the consent of her
guardian, which they have reduced, without any clear Quranic warrant, to
mean male relatives from the patriarchal lineage. Likewise, while the Quran
does allow for polygamy, this must be seen as a response to a particular
socio-historical context, and not the open permission that the fuqaha have
granted it while overlooking the stringent and very restricting conditions that
the Quran seeks to control its practice with, particularly the insistence on
the equal emotional, as distinct from simple material, treatment of all wives.
In this way, he says, the fuqaha have wrongly given the permissibility
(mubaha) of polygamy priority, ignoring the demands of justice or adala.
The same is the case with the issue of arbitrary divorce, including triple
talaq in one sitting, a right given by the fuqaha to the husband, again
without clear Quranic permission. So, too, the permission given to a
husband for beating his wife, and to correct her, without a corresponding
right given to the wife to correct her aberrant husband. Likewise, the absurd
fiqh pronouncement—which, too, lacks Quranic sanction—that a wife who
suffers patiently her husband’s bad behaviour will go to heaven. Overall,
Hasyim argues, the tradition of patriarchal fiqh ignored the principle that
spouses should treat each other well, which, if properly followed, leaves
very little possibility for the wife’s nushuz or disobedience that merits
warning or punishment on the part of the husband.

In matters of inheritance, too, Hasyim argues, contemporary Islamic
thought must take the question of gender justice with the urgency that it
demands. While he accepts the Quranic rules about division of property as
normative, he mentions that Islam does offer a way out to those who want
to give an equal portion to daughters, through grants before one’s death.
In this regard, he quotes a hadith narration, in which the Prophet is said to
have exhorted: ‘Equalise the gifts you give among your children. If I was
allowed to give more to one, I would give more to my daughter’.


Critiquing and replacing patriarchal fiqh prescriptions as regards women’s
roles in the public sphere, too, must be a central focus of efforts to secure
gender justice for Muslim women, writes Hasyim. One such enormously
contentious issue is the possibility of Muslim women becoming heads of
state. This is no mere theoretical question as several women, including
one in Hasyim’s Indonesia, have indeed risen to become heads of Muslim
states in recent years, despite the opposition of both radical Islamists as
well as traditionalist ulema on ostensibly ‘Islamic’ grounds. The proponents
of patriarchal fiqh, vehemently opposed to this possibility, offer various
arguments to back their case, mostly based on theories of innate biological
differences between the genders, backed with recourse to what Hasyim
regards as weak or even downright fabricated hadith reports. Hasyim
counters their argument through appeals to early Muslim history to highlight
the possibility of Muslim women playing key political roles, including
as leaders of armies, advisors to Caliphs, as well as a clear, approving
mention of a reigning queen in the Quran.

Surveying the tradition of patriarchal fiqh, Hasyim contends that one of
its central weaknesses is its lack of awareness of gender equity, which
reinforces the misplaced and erroneous notion of Islam as such being
opposed to women’s rights and empowerment fiqh. The absence of the
notion of gender justice in the fiqh tradition is, however, understandable,
Hasyim reminds us, since it was a product of medieval times, when the
notion of gender rights not yet formally recognised, as is the case today.
This is why, he says, contemporary Muslim scholars need to develop
a new fiqh, including on gender-related matters, that upholds gender
justice, which can no longer be denied to Muslim women. This is not a
call, he hastens to add, for a new shariah, for while fiqh is a product of
human reflection and thought, and, therefore, fallible and also amenable to
reform, the shariah, along with the Quran and the normative practice of the
Prophet, is unchangeable. For Islam to reflect its inherent dynamism and
to respond to changing contexts, it is imperative, he says, that fiqh evolve
over time, rather than, as the patriarchal clerics and ideologues insist,
remain static. Hence his call for what he calls a contemporary fiqh al-nisa
(fiqh of women), rooted both in the Quran and the practice of the Prophet
(based on authentic, as opposed to weak or fabricated hadith reports),
as well as in the lived realities of Muslim women today. This new fiqh for
women must aim at freeing women as well as men from unjust social
structures and practices that hinder gender and other forms of equality. In
order to be contextually-relevant, Hasyim argues, it also needs to creatively
engage with contemporary human rights frameworks, the Islamic concepts
of attaining justice (adl) and the good (ma‘aruf), the higher aims of the
shariah (maqasid al-shariah), masalaha or general welfare, and avoiding
damage (mafsada), new developments in the social sciences, historical
criticism, anthropology, and linguistics.


The fiqh about or of women that Hasyim proposes is, at the same time,
he says, a fiqh for women (fiqh li al-nisa), one formulated specifically
to promote women’s interests, based on a gender-sensitive reading
of the Islamic scripturalist tradition that Hasyim regards as truer to
its spirit. To undertake this stupendous task also requires, Hasyim
writes, the formulation of fiqh min al-nisa or ‘fiqh from women’, one
that is formulated by Muslim women themselves, based on their own
experiences and realities, their quest for the equality and rights promised
to them by the Quran, and their own readings of the Islamic tradition.
And that is happening today. Increasingly, Muslim women across the world
are taking up the task of studying the Islamic scriptural resources and
interpreting it by and for themselves, recognizing, to be sure, the worth of
past male interpreters where there is need to, but unhampered by their
patriarchal prescriptions.

Yoginder Sikand works with the Centre for the Study of Social Exclusion at the National Law School, Bangalore

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