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Islamic Sharia Laws ( 20 Feb 2012, NewAgeIslam.Com)

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The Relationship between Male and Female Genders in Pre-modern Islamic Law

By Dr. Adis Duderija, New Age Islam.com

University of Melbourne, Islamic Studies

Traditional Islamic law contains a number of gender specific rights, duties and norms pertaining to the legal the political/governmental, educational, ritual, juridical spheres and in terms of general personal conduct. This article aims to outline these and briefly examine the reasons why they exist with the emphasis on the pre-modern Muslim understanding of the nature of male and female sexuality. It also includes examples of pre-modern and modern Qur’anic interpretation of verses 4:34 and 2:228 which demonstrate this gender hierarchical relationship between the sexes and explore its implications in relation to some aspects of traditional Muslim family law.

  1. Gender Differences in Relation to Law

A woman’s share from the inheritance is half that of a man. If a woman apostatizes from Islam, she will not be killed as in the case of a male apostate and still has to perform her daily prayers and obligatory fasting. Only man has the right to unilateral divorce. In case of divorce the husband automatically has the custody over children. Young woman can only marry if given permission by her male guardian. A woman’s blood money is half of that of a man. In terms of retribution for bodily injury woman equals a man only as long as the financial compensation exceeds one third of a full blood money; after that it is half of that of a man. This means that as the bodily injury retribution increases for the man and decreases for the woman.

2. Gender Differences in relation to General Personal Conduct and Education

A woman does not go to public bathhouses. It is not recommended for women to visit the ill.  A woman does not ride on a saddle of a horse unless absolutely necessary or on a journey. A woman should not walk in the middle of a walkway but on its two sides. A woman is not to settle in an upper chamber overlooking the road.  A woman cannot shake hands with a male non-relative or pledge allegiance with her hand, unless it is covered. A man should not sit in a place where a woman has just left until the warmth left from her body dissipates. It is not recommended to teach women women how to write but is recommended that they learn wheel-spinning. Women should be taught the chapter 24 of the Qur’a n where many  of the rules of conduct for women are spelled out but not chapter 12, which describes the story of love of the Egyptian women toward Joseph. At the time of childbirth, any [non-essential] women have to leave the room so that they do not look at the private parts of the woman in labor. The Holy Struggle (jihad) for a woman is to take proper care of her husband. The husband’s rights form a woman’s priorities. A Muslim woman should not shed her clothes in front of a Jewish or Christian woman. A woman should not use perfume when going out.  A woman is not allowed to make herself look like men because Prophet Muhammad is reported to have cursed men who make themselves look like women and women who make themselves look like men. A woman cannot fast superogatory fasts except with her husband’s approval. Wife is to be always sexually available to her husband but she herself does not have specific sexual rights.

3. Gender Differences in relation to Judiciary

The majority opinion is that women do not act as judges.  Women’s testimony as witnesses is not valid in matters of criminal law, nor in the issues of divorce or sighting of the new moon. It is, however, valid in matters that men are not allowed to investigate directly such as childbirth.

4. Reasons for these gender differences

Most  of these gender differences  can be traced back to a particular understanding of female and male sexuality or the idea of gender complementarily which argues that women, unlike men, are highly emotional beings with weak  and easily befuddled or ,according to some, deficient rational faculties. The first assumption that governs the traditional or pre-modern views of the female and the male sexuality is their essential difference. According to this view sexuality is a crucial marker of construction of masculinity and femininity. These sexual differences are said to be based on biological and mental functions and capacities that strongly differentiate the sexes embodied in the idea of gender dualism. This ‘gender dualism’ also considers the female nature to be derivative vis-à-vis the male whose superiority is both ontological and socio-moral.  The female body is, furthermore, considered as sexuality and morally corrupting. Men are considered as having an insatiable sexual desire aroused by the very sight, smell or voice of a woman, thereby distracting and diverting their energy from their  important religious and other public duties. Furthermore, the pre-modern views of women are posited on (an artificial) split between body and mind, sexuality and spirituality. The category of the female gender is constructed primarily in sexual terms. Women are identified with the ‘irreligious’ realm of sexual passion, as repositories of all ‘lower’ aspects of human nature, the very anti-thesis of ‘illuminated’ sphere of male (religious) knowledge who are the sole bearers of religious authority. Women and their active sexuality are conceptualised and constructed as sources of socio-moral chaos, embodiments of seduction and  a threat to a healthy social order. All of this necessitates the need to regulate female sexual instinct by “external precautionary safeguards” such as veiling, seclusion, gender segregation and constant surveillance. It is important to point out that this view of women (and men) is echoed in a number of hadith which the pre-modern approaches consider as normative.

Here are several representative examples:

1. Abu Sa'id al-Khudri narrated that the Prophet said: …When it comes to [the temptations of] this world be cautious, and as to women be cautious [as well] for the first fitna that befell the Israelites was [the fitna of] women.

2. Abd Allah b. Masood narrated that the Prophet said, [The whole of] the women are `awra and so if she goes out, the devil makes her the source of seduction.

3. Abd Allah b. Umar narrated that the Prophet said, I have not left in my people a fitnah more harmful to men than women.

One must also here add the role of the chapter Yusuf in the Qur’an and in particular how it was interpreted and discussed in folklore which portrays well known biblical story of Josef and his ordeal with the women of Egypt as cunning, willing to do anything to satisfy their sexual urge that they cannot control,the example of which is generalized for all women  for  all times and all places.

5. Gender Relationship in Traditional Quranic Commentary

Traditional Muslim Qur’anic commentary (Tafsir) demonstrates this type of gender hierarchical thinking very well as evident in pre-modern and some modern commentaries of Qur’an 4:34 and/or 2:228. For example,

Al-Zamakhshari (d.1143/1144) in relation to 4:34

„Men are the commanders [of right] and forbidders [of wrong], just as a governor guides the people... The “some” in some of them refers to all men and all women.

It means that men are only in control over women because God made some of them superior, and those are men, to others, and they are women. This is proof that governance is only merited by superiority (tafdil), not by dominance, an overbearing attitude, or subjugation. Concerning the superiority of men over women, the exegetes mention rationality (‘aql), good judgment (hazm), determination, strength, writing – for the majority of men – horsemanship, archery, that men are prophets, learned (‘ulama’), have the duties of the greater and lesser imamate, jihad, call to prayer, the Friday sermon, seclusion in the mosque (i‘tikaf), saying the prayers during the holidays (takbirat al-tashriq), according to Abu Hanifa they witness in cases of injury or death (hudud and qisas), they have more shares in inheritance, blood wit (himala), pronouncement of an oath 50 times which establishes guilt or innocence in cases of murder (qasama), authority in marriage, divorce, and taking back the wife after a revocable divorce, a greater number of spouses, lineage passing through the male line, and they have beards and turban“.

Ibn Kathir (d. 1373)

In reference to  2:228  says this ayah is indicative of the fact  that men are in a more advantageous position over  women physically, with regards to their mannerism, status, obedience (of women to them), spending, taking care of the affairs and in general, in this life and in the Hereafter and links it to 4:34  which  he translates as “Men are the protectors and maintainers of women, because Allah has made one of them to excel the other, and because they spend (to support them) from their means.

At Tabari's (d. 923 CE)

At Tabari on 4:34 is as follows:

„by men are qawwamun over women, God means that men are women’s guardians (ahl qiyam ‘ala) for they discipline them (ta’dibihunna) and restrain them (al-akhdh ‘ala yadayhinna) in those matters that God has made obligatory for the women and themselves (the men). With what God has given some of them more than others meaning, God has made men superior to women, in terms of payment of the dowry, spending on the wives from the men’s property, and providing them with provisions. That is the superiority (tafdil) given by God Almighty to men over women, and because of it men have been made qawwam over women, executors of command over them, in that part of women’s affairs that God has granted to men.

Maududi

His exegesis of 4:34 is as follows:

Men are superior to women in the sense that they have been endowed with certain natural qualities and powers that have not been given to women or have been given in a less degree, and not in the sense that they are above them in honour and excellence. Man has been made qawam (governor) of the family because of his natural qualities and woman has been made his dependent for her own safety and protection because of her natural drawbacks.

An extreme example of this type of pre-modern thinking on the relationship between the two spouses can be found in the following statements issued by the Council of Ulama of South Africa:

„She (the wife) should mould herself to wholeheartedly submit to his whims and fancies. His likes must become her likes and his dislikes, her dislikes. She should step out of her way to comfort him and to console him in his worries and distress. Her wishes and desires are subservient to his wishes and orders …. After all (God) has created her for her husband’s comfort and peace’. The Council goes on to say ‘The Shariah has accorded the husband the highest degree of authority over his wife. Likewise it will transpire that the wife has to offer the higher degree of submission to her husband … with humility and patience she should tolerate his shortcomings and even his injustice … men are the rulers of women and they have a superior rank … (as such) it is the husband’s right and role to dominate and dictate (and) it is the duty of the wife to submit and serve. The wife should understand that she can never conquer her husband by confrontation and seeking to set herself up as his equal or superior. “

And

 „It is significant that in spite of the wife remaining the sole owner of her wealth … (she is encouraged) to put her wealth at his disposal and pleasure’. She should not attempt to appoint herself as the controller of his finances. It is none of her business on whom her husband spends his wealth’. ‘She must not adopt a legal stand and a technical attitude, demanding from her husband perfect and total fulfilment of her legal rights …. The wife has to remember that despite her husband’s failure to fulfil his duties to her, she is under … obligation to obey her husband …, obedience to the husband will ensure the everlasting happiness … for her“.

Lastly,

„ ‘The outstanding virtue of a true Muslim wife is her total faithfulness to her husband. Her mind, her heart, her gaze and her body are only for her husband …. It does not behove the Muslim wife to cast her eyes on any man other than her husband … even a glance at another man is considered infidelity and an act of unfaithfulness … entertaining thoughts of other men in the mind is infidelity in Islam; glancing at other men is infidelity, speaking to other men is infidelity. Infidelity and unfaithfulness to the husband are not confined to adultery’. “

In all of the above cited exegetical evidence, often expressed in language of natural law or natural qualities of sexes (physically strong vs. physically weak; rational vs. highly emotional) or in terms of certain socio-culturally contingent views on in/appropriate male/female functions ( giver or recipient of dowry, financial maintainer or recipient of material support;)  and behaviour (nature of male vs female sexualities)  has resulted in construction of patriarchal Qur'anic exegesis of 4:34 and 2:228  which form the basis of the pre-modern Muslim family law.

So the pre-modern Islamic law is highly gender differentiated which impacts on the nature of Muslim family law in particular because these gender differences also apply to and have implications on the rights and duties of husbands and wives. For example, according to traditional Muslim marriage law it is wife’s religious and legal duty to be constantly sexually available to her husband to the extent that he has ownership (arabic milk, from al-mulk meaning dominion) over her sexual organ ( bud) and freedom of movement ( she can’t even leave her home  to visit her sick parents without her husband’s permission because the husband might feel that he wants to have sex ) . In return the husband is legally obliged to provide material support for his wife and provide dower at time of marriage (a part of which can be deferred). A wife has no legally recognized right to sexual satisfaction. Should the wife not fulfill her duty to be sexually available to her husband at his will she forfeits her right to be materially maintained.

Dr. Adis Duderija is a research associate at the University of Melbourne, Islamic Studies. He recently published a book: Constructing a Religiously Ideal "Believer" and "Woman" in Islam: Neo-traditional Salafi and Progressive Muslims' Methods of Interpretation (Palgrave Series in Islamic Theology, Law, and History.

URL: http://www.newageislam.com/islamic-sharia-laws/dr.-adis-duderija,-new-age-islam.com/the-relationship-between-male-and-female-genders-in-pre-modern-islamic-law/d/6692


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