OnIslam.net

Shari`ah Laws and Women

Muslim Woman Driving
When it comes to women, there is a subtle but very strong link between many of the anti-women fatwas and certain political agendas

Women issues are the real test for the current Islamic reform. The reason is that groundless and unfair differentiation between men and women is deeply embedded in many popular opinions that we inherited from the eras of decline of the Islamic civilization.

First of all, it is necessary to make the following differentiations:

  1. Between Islam and Muslims
  2. Between Islamic Shari`ah and Islamic madhhabs or schools of jurisprudence
  3. Between the Scripts and the interpretation of the Scripts

 

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Between Islam and Muslims

First, we should differentiate between Islam and Muslims. This is not necessarily meant to be in a negative sense. But it is crucial that we separate (as much as we possibly could) between the religion, Islam, and its followers, Muslims. What Muslims did, or currently do, is not necessarily what Islam is about.

Islam has a core that every Muslim must embrace. However, in addition to this core, the same religion, Islam, could manifest, and had manifested, in a variety of shapes and forms in various cultures. Some of these cultures had social structures that were generally anti-women, and true scholars had struggled to implement the Islamic values of justice and equality of human beings.

One example is the practical ban of Muslim women from entering the mosques, despite the clear instruction from Prophet Muhammad (peace and blessings be uponhim): "Do not stop Allah's women-slaves from going to Allah's Mosques" (Al-Bukhari) and despite the fact that the Prophet (peace and blessings be upon him) led the Prayer for many men and many women in his own mosque.

Another contemporary example is banning women from driving cars in some Islamic countries, despite centuries of similar practices by Muslims women starting with the Prophet’s wife `A'ishah, who actually led a whole battle over her camel (The Battle of the Camel, or Mawqi`at Al-Jamal). There are numerous examples in this area.

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Similarly, it is also important to differentiate between Islam and the history of the Islamic world, which could have its positive as well as negative sides when it comes to women.

We, Muslims, have to admit that there is a lot of anti-women baggage in the history of the Islamic world that is simply un-Islamic, according to Islam’s references and sources of legislation.

Islam is a way of life that, naturally, includes politics and governance. However, political positions are not necessarily part of ‘Islam’ that every Muslim has to embrace

One example is the concept of ‘harem', in which a rich or powerful man basically imprisons a large number of women for his own convenience, in the name of concubines. We thank God that such non-Islamic customs no longer exist.

Another contemporary example is honor killings that is still taking place, sometimes ‘in the name of Islam,’ in some areas (like in nowadays Pakistan, Nigeria, and Jordan), despite being clearly against Islam and have no precedent in the Islamic law.

Additionally, it is necessary to differentiate between Islam and the politics of Muslims. Islam is a way of life that, naturally, includes politics and governance. However, political positions, even if they are taken based on certain Islamic values, are not necessarily part of ‘Islam’ that every Muslim has to embrace. When it comes to women, there is a subtle but very strong link between many of the anti-women fatwas (like the ones I referred to above) and certain political agendas.

 

Between Shari`ah and Madhhabs

Shari`ah is revealed but fiqh is not!

The second important differentiation is between the Shari`ah and Islamic schools of jurisprudence (in Arabic: madhahib al-fiqh). The word Shari`ah has negative connotations in the English language because it is commonly used to refer to various corporal punishments used in some countries in the name of the Islamic law, which are usually, and unfortunately, applied to the weak and poor in these societies, and do not apply to the rich or the politically powerful.

However, the word Shari`ah is used in the Qur'an only to mean ‘the revealed heavenly path or way of life’ (Qur'an 5:48, 45:18). So, everything about Islam is Shari`ah. It is supposed to be the Islamic ‘way of life.’

Regarding the schools of fiqh, the word fiqh is used in the Qur'an and Hadith in various forms to refer to understanding, comprehension, and gaining knowledge of the religion in general (for example, Qur'an 4:78, 6:25, 9:122). However, in Islamic schools of law, the word fiqh has been typically defined as, ‘the knowledge of practical rulings.’

It is crucial to know that Shari`ah is revealed but fiqh is not! Shari`ah is what Allah said in the Qur'an and what the Prophet (peace and blessings be upon him) instructed every Muslim to do, but fiqh is the understanding of scholars, in various eras and geographical locations, of the revealed knowledge and their opinions in their attempts to apply the Shari`ah to (their) real life.

So, generally speaking, fiqh is subject to the society and circumstances that it was applied in, and does not (necessarily) represent God’s commands, nor (necessarily) what we should apply in our current circumstances.

Of course, there are issues in Islam that are universal and every Muslim, regardless of where and how, should apply. We should consult the scholars of fiqh in these areas. But I am talking here about the issues that concern changing circumstances and, especially, issues related to women, who, in my view, had suffered a lot of discrimination from a number of scholars – in contrary to the Islamic Shari`ah or revealed way of life.

 

Between the Scripts and the interpretation of the Scripts

The third related and important differentiation is between the Scripts and the interpretation of the Scripts. The Scripts are universal, but their interpretations change with the change of time and circumstances.

However, there are limits on what could be a valid interpretation. A valid interpretation, for example, cannot alter the meaning until it ends up implying something that is radically different from the obvious meaning of the Script or the obvious tradition of the Prophet of Islam (peace and blessings be upon him).

In this regard, it is necessary to understand how certain historical interpretations shaped Islam in the minds of many Muslims, without necessarily being the only true way of interpretation. Let me mention one example here, which is verse 33:53. This verse has come to be named ‘The Verse of the Barrier’ (Ayat Al-Hijab). It states:

{And when you ask of them (the wives of the Prophet) anything, ask it of them from behind a curtain/barrier. That is purer for your hearts and for their hearts.} (Al-Ahzab 33:53)

The context of the verse (both in the chapter and in a historical sense) refers to specific rulings that the Companions should follow when they visit the Prophet’s home. And the verse was revealed after `Umar ibn Al-Khattab , the Companion, had cautioned the Prophet that some of his visitors do not deal respectfully with his wives (refer, for example, to Al-Shawkani, Fath Al-Qadir, vol.4, p.299, Dar Al-Fikr, Beirut).

Yet, this verse was claimed to have abrogated (i.e., cancelled and annulled) numerous narrations that allow Muslim women to lead normal lives. Based on this interpretation, which has no basis from the Qur'an or the Hadith of the Prophet (peace and blessings be upon him), the following fatwas were given:

  1. Based on this abrogation, Ibn Hajar banned Muslim women, in general, from leaving their homes[1]. This is contrary to thousands of narrations and a large number of verses, which were all interpreted as ‘legally abrogated.’
  2. Al-Qadi ‘Iyad banned Muslim women, in general, from talking with men[2]. This is also contrary to thousands of narrations and a large number of verses, which were all interpreted as ‘legally abrogated.’
  3. Al-Mubarkafuri banned Muslim women from narrating the Hadith[3]. This ban is obviously against tens of thousands of narrations that female Companions related to the Prophet (peace and blessings be upon him), without which, our knowledge about Islam itself would have been quite incomplete.
  4. Abadi banned women from visiting men or being visited by men[4], also contrary to many verses and authentic narrations.
  5. Ibn Taymiyah, based on the same verse, banned Muslim women from showing their faces in public[5]. He also interpreted the narrations that imply otherwise as abrogated by the same verse.

Therefore, it is important to make these differentiations between Islam and Muslims, between Islamic Shari`ah and Islamic madhahbs, and between the Scripts and the interpretation of the Scripts.

 


[1] Ibn Hajar, Fathul-Bari Sharh Sahih Al-Bukhari, vol.1, p.249, Dar Al-Ma`rifah,Beirut

[2] Imam Al-Nawawi, quoting Al-Qadi ‘Iyad, in: Sharh Al-Nawawi ‘ala Sahih Muslim, vol.8, p.184, Dar Ihyaa' Al-Turath Al-Arabi, Beirut, 1954

[3] Abul-‘Ila Al-Mubarkafuri, Tuhfat Al-Ahwadhi, vol.4, p.179, Dar Al-Kutub Al-‘Ilmiyyah

[4] Al-`Azim Abadi, `Awn Al-Ma`bud, vol.5, p.263, Dar Al-Kutub Al-‘IlmiyyahBeirut, AH 1415

[5] Refer to: Kutub wa Rasa’el Ibn Taymiyah fi Al-Fiqh, Maktabat Ibn Taymiyah

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Dr. Jasser Auda is an Associate Professor at Qatar Faculty of Islamic Studies (QFIS), with the Public Policy in Islam Program. He is a founding member of the International Union of Muslim Scholars, based in Dublin; member of the Academic Board of the International Institute of Islamic Thought in London, UK; fellow of the International Institute of Advanced Systems Research (IIAS), Canada; member of the Board of Trustees of the Global Civilizations Study Centre (GCSC), UK; member of the Executive Board of the Association of Muslim Social Scientists (AMSS), UK; member of the Forum Against Islamophobia and Racism (FAIR), UK.  He has a PhD from University of Wales, UK, on the philosophy of Islamic law; a PhD from the University of Waterloo, Canada, on systems analysis; and a Masters of Jurisprudence from the Islamic American University, Michigan, on Islamic legal purposes (maqasid al-shariah). He memorized the Quran and received traditional studies in Islamic sciences in Al-Azhar Mosque in Cairo, he was a founding director of the Maqasid Research Center in Philosophy of Islamic law in London, UK, and a visiting lecturer to Alexandria University Faculty of law, Egypt, the Islamic Institute of Toronto, Canada, and the Islamic Fiqh Academy of India. He has lectured on Islamic law, its philosophy, and its relation to the issues of Muslim minorities and policy in a couple dozen countries around the world. He was a contributor to policy reports related to Muslim minorities and Islamic education to the UK Ministry of Communities and the Higher Education Funding Council of England, and has written a number of books, the latest of which in English is: Maqasid Al-Shariah as Philosophy of Islamic Law: A Systems Approach, London: IIIT, 2008, and in Arabic: Averröes's Premier of the Jurist: Synopsis and Commentary, Cairo: Al-Shuruq Al-Dawliya, 2010.

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