In this paper I explore ways in which women can pursue and achieve equality and justice in Islamic law. I argue, first, that conceptions of gender rights in Islamic law are neither unified nor coherent, but competing and contradictory; and secondly, that gender rights as constructed in Islamic jurisprudence (fiqh) not only neglect the basic objectives of the shari‘a (maqasid al-shari‘a) but are unsustainable under the conditions prevailing in Muslim societies today.
I begin by examining constructions of gender rights in Islamic legal thought, with a view to identifying both the legal theories and the cultural assumptions that inform them, and I conclude by exploring the kinds of strategies for reform that are now needed both to reflect the spirit of the shari‘a and to embody the principle of justice for women. I ask the following questions: if justice and fairness are indisputable objectives of the shari‘a, should they not be reflected in laws regulating relations between, and the respective rights of, men and women? Can there be an equal construction of gender rights in Islamic law? If so, what are the strategies needed to achieve it?
Three preliminary notes are necessary: First, throughout the paper I distinguish between shari‘a and the science of fiqh. The shari‘a is, on the one hand, the totality of God’s law as revealed to the Prophet Mohammad; on the other, “in its popular usage it indicates the religion of Islam, God’s true religion as it embodies revelation in praxis.” Fiqh, however, is not part of revelation (wahy); it is that part of religious science whose aim is to discern and extract shari‘a legal rules from the Qur’an and Sunna. Strictly speaking, fiqh is a legal science with its own distinct body of legal theories and methodology as developed by fuqaha over the course of centuries and in dialogue with other branches of religious and non-religious sciences. In other words, it is the shari‘a that is sacred and eternal, not fiqh, which is a human science and changing. It is essential to stress this distinction, since fiqh is often mistakenly equated with shari‘a, not only in popular Muslim discourses but also in specialist and political discourses, and often with an ideological intent.
Secondly, I start from the premise that gender rights are neither fixed, given, nor absolute. They are, on the contrary, cultural and legal constructs which are asserted, negotiated and subject to change. They are produced in response to lived realities, in response to power relations in the family and society, by those who want either to retain or to change the present situation. They exist in and through the ways in which we think and talk (both publicly and privately), and study and write about them.
Finally, I do not aim to do what a Muslim jurist (faqih) does, that is, to extract rules from sacred sources by adhering to usul-al fiqh theories and methodologies. Rather, I approach fiqh rules and their underlying theories from a critical feminist perspective, examining their validity in the light of contemporary gender theories and realities. My questions and assumptions are, thus, different from those of the majority of male jurists. Not only do I expose the inherent gender bias of fiqh rules and their inner contradictions but I ask whether these rules reflect the justice of the shari‘a and the interests of Muslim individuals and societies. In so doing, I highlight what Sachedina calls ‘a crisis of epistemology in traditionalist evaluation of Islamic legal heritage’. At the root of this crisis lies a non-historical approach to Islamic legal systems and a male-centred religious epistemology .
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This is an excerpt from Ziba Mir-Hosseini 2007 "The Construction of Gender In Islamic Legal Thought: Strategies for Reform", in KH. Husein Muhammad, Faqihuddin Abdul Kodir, Lies Marcoes Natsir and Marzuki Wahid, Dawrah Fiqh Concerning Women - Manual For A Course on Islam and Gender, Fahmina Institute, Cirebon, 2007.
