New Age Islam
Fri Sep 18 2020, 06:54 PM

Islamic Society ( 10 Jun 2013, NewAgeIslam.Com)

Maqasid Al Shari ‘ah, Gender Non-patriarchal Qur’ānic Hermeneutics and the Reformation of Muslim Family Law

 

 

By Dr. Adis Duderija, New Age Islam

Senior Lecturer, Gender Studies, University Malaya

Seminar Presentation, Institute of Advanced Islamic Studies, Kuala Lumpur, 18th of June 2013

Not For Citation, Draft Only

1. Introduction

As you are I am sure keenly aware over the last two decades in particular there has been a growing academic interest in Maqāsid oriented interpretations of Islamic law, gender non-patriarchal Qur’ānic hermeneutics and the calls for the reformation of Muslim  family laws.[1] While many noteworthy works have been written on these individual issues,[2] to my mind there is still a need for a study which systematically employs the insights from Maqāsid based approaches to Islamic law and gender non-patriarchal Qur’ān hermeneutics in providing a gender symmetrical ( i.e. in terms of rights and duties)  interpretation of Muslim family law. In this presentation I would like to present a hermeneutical model of the Qur’an and Sunna that attempts to do exactly that. 

There is a relative absence of studies which employ Maqāsid approaches to Islamic law in arguing for reform in Muslim family laws. The only study this author is aware of that link the concept of Maqāsid al Shari’ah with Muslim family law reform is recently written article by Professor Hashim Kamali published by this institute.[3]In it Professor Kamali laments the fact that the existing rulings in the Shari’ ah pertaining to women and family law were not sufficiently informed by and grounded in the Maqāsid -based approach to Islamic law which, itself, has been methodologically under-theorised and marginalised in the overall Islamic legal theory.[4]

Although not directly engaging with the concept of Maqāsid when dealing with Muslim family law reform in the article, Professor Kamali does take methodological recourse to several Qur’ān and Sunna principles to argue for viability of gender equality in Muslim family laws. These arguments include  the idea that the Qur’ānic outlook  is supportive of moral autonomy of individuals, the employment of the Qur’ānic formula of promoting the good and forbidding the evil and the Qur’ānic concepts of al-‘Adl ( justice), Qist ( equity), Ihsan (moral excellence) , Ramah (mercy) and moderation (wasa   iyya). He argues that these Qur’ānic ethical norms must be reflected in the legal rulings of Shari ah in matters pertaining to gender issues including marital and family life. He also refers to the juristic principle of Takhayyur (selection of ideas among different existing legal schools which are most women emanticipatory) and Istihsan (juristic preference) as methodological principles which could be employed for the development of more gender just Muslim family law.   With reference to the concept of Maqāsid al Shariah he concludes the article with this recommendation:

Reform measures and adjustment of existing Fiqh rules pertaining to family welfare and women should take their cue from the broader guidelines of the Qur’ān and Sunna on fairness, human dignity and justice. These and other principles of broader import should not be overshadowed by technical details, customary and historical constrains[5].

While Professor Kamali has made some important contributions to the issue of reform of Islamic family law from a Maqāsid perspective my research as presented in this seminar  aims to build further on these and similar  efforts.

2. Gender Differences In Terms Of Rights And Duties In Premodern Islamic   Law[6]

As you are well aware the pre modern Islamic law contains a number of gender specific rights, duties and norms pertaining to not only the legal sphere but also to the political/governmental, educational, ritual, juridical and in terms of general personal conduct.[7]

These gender differences can be traced back to a particular understanding of female and male gender and female and male  sexuality in particular   based on the majority of the  pre modern jurists’  subscription to the thesis of ‘gender complementarity’ ( also known as gender dualism)   and particular interpretations of the Qur’an and Sunna which. I have explained the delineating features of pre modern Qur’an-Sunna hermeneutics in my book at length and here I merely outline its main delineating features. These can be summarised as follows:

1. A philologically-centred interpretational orientation ( i.e. various philological sciences and their role in the process of derivation of  meaning are  Qur’ān ’s most decisive and hermeneutically powerful interpretational tools) ;

2. The belief in the fixed, stable nature of the meaning of the Qur’ānic text residing in totality in the mind of its Originator;

3. Marginalisation of the role of the interpreter in the process of derivation of meaning;

4. De contextualisation and the marginalization of the importance of Qur’ānic revelationary background for the purposes of its interpretation;

5. The ‘voluntarist–traditionalist’ view of the relationship between reason and revelation;

6. Textual segmentalism or lack of a thematic approach to interpretation;

7. the lack purposive (Maqāsid) and ethico-religious values [8]approach to Qur’ānic hermeneutics and

8. A largely Hadith dependent concept of Sunna which conceptually conflates the concepts of Sunna and Hadith.

 

It is on the basis of the gender dualism reasoning and manhaj described above that the Qur’ānic verses such as 4:34 and 2:228, the lynchpins of pre modern gender hierarchical Muslim family laws, have been interpreted in patriarchal ways. As one example, of this we can use the Tafsir of Zamakhshari as being representative:

Example: Al-Zama š arī ( 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 (tafdīl), 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 (‘ulamā’), have the duties of the greater and lesser imamate, jihād, call to prayer, the Friday sermon, seclusion in the mosque (i‘tikāf), saying the prayers during the holidays (takbīrāt al-tashrīq), according to Abū Hanīfa they witness in cases of injury or death (hudūd and qisās), they have more shares in inheritance, bloodwit (himāla), pronouncement of an oath 50 times which establishes guilt or innocence in cases of murder (qasāma), 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.[9]

 

Other important juristic but not necessarily Qur’anic concepts apart from qiwāma, darajāt and faddala that feature in 4: 34 and 2: 228, which have shaped the formulation of  Muslim family laws need mentioning, including wilāya (male authority /guardianship of the husband over the wife and children -female until marriage and male until age of majority), ‘isma ( husband‘/father‘s authority over wife and children), talāq (unilateral right of husband‘s to divorce), tamkin and nafaqa ( wife‘s sexual submission in marriage in exchange for her right to shelter, food and clothing), taʿa (wife‘s obedience) and nushuz (wife‘s recalcitrance or rebellion) are also important in understanding the gender asymmetrical and patriarchal nature of traditional Muslim family laws. Due to time constrains I am not able to discuss these concept at length. What I do want to highlight is that all of these concepts are the embedded in the same gender duality concepts and interpretations of the Qur’ān and Sunna I mentioned earlier which have single-handedly shaped the formulation of Muslim family law by Muslim jurists.

Are alternative interpretations of the Qur'an and Sunna possible which can be used to formulate gender symmetrical and non patriachal Muslim family laws ?

 

3. Deriving New Maqāsid In Relation To Muslim Family Law

 As I stated earlier the pre-modern Muslim family law (and its modern endorsements) have been based on the concepts of men’s such as qiwama, taf īl, ta a and wilaya over women to construct a highly gender differentiated Muslim family law that has strong gender rights imbalances, generally favouring husbands as in, for example, the case of divorce and child custody, and the wife’s male kin in the case of inheritance. Because the Qur’ān and Hadith contain specific injunctions pertaining to many aspects pertaining to Muslim family law  the earlier  described pre-modern and neo-traditional interpretation of Qur’an and Sunna did not seek to address these imbalances as they were considered part of the immutable aspects of Islamic law and to be in harmony with the Will of the Just Divine Legislator, and therefore essentially and principally the most just laws there possibly can be. However, as it will be evident below the patriarchal juristic concepts of qiwama and wilaya are by no means the only concepts upon which Muslim family law can be built.

Moreover, recent scholarship, including mine, has argued that different interpretational models with different assumptions can yield very different interpretations of the Qur’ān  and Sunna in relation to issues such as the normative nature  and purpose of Muslim family laws and the kind of  relationships   that govern the interaction between the spouses.[10]   In other words there is nothing inevitable about patriarchal interpretations of the Qur’ān and Sunna and, it is perfectly possible to identify a number of new Maqāsid relevant to Muslim family law on the basis of which gender non-patriarchal and symmetrical Muslim family law can be constructed. In this context it is important to emphasise that, although occurring in the  Qur’ān  and Sunna, these newly identified  Maqāsid ,  and the interpretational manahij and the assumptions underpinning them, are not just  simply a lost treasure finally recovered, but  also a product of the ‘human rights era  consciousness’ ( the concepts of gender non-patriarchalism and gender justice being its fundamental elements ) adopted  on the part of  the interpreter which acts as a lens through which  Qur’ān  and Sunna  are  interpreted. This however, does not imply that they are any less ‘Islamically authentic’ that those governing pre modern Islamic law because they are based on the interpreter’s overall hermeneutic of the Qur’ān  and Sunna which considers these normative sources to be in harmony with the contemporary human rights era consciousness in relation to gender issues on the basis of them containing strong conceptual gender justice and gender non-patriarchal antecedents (see below). This argument is further reinforced by the fact that the very nature of interpretation is such that it not only a product of interpretational models employed which govern this process but that is always tainted by, apart from others, the intellectual ,moral, educational, cultural and contextual milieus in which communities of interpretation ( i.e. groups of interpreters sharing certain factors which influence the outcome of the process of interpretation e.g. such as those mentioned in this sentence) are embedded.

 4. New Maqāsid  Relevant to Muslim Family Law

There are a number of relevant verses in the Qur’ān and the examples from the Sunna of the Prophet ( s)   on the basis of which new Maqāsid can be identified and with reference to which gender just Muslim family law can be constructed. Many were noted in the work of Professor Kamali  I referred to in  the introductory part of this presentation.  The new Maqāsid that are directly relevant to reformulation of Muslim family law would include concepts such as the following: Rahma, muwadda and Sakina i.e. mercy (or compassion), love, harmony (or tranquillity), sameness/ equality and intimate closeness. Further  Maqāsid  of relevance to the reformulation of pre modern Muslim family law can be derived from either non-gender specific or specifically female gender inclusive  Qur’ānic concepts of  ilafa ( vicerency) , Taqwa ( God consciousness) , maruf ( doing what is commonly known to be  good) , equality in creation and  human worth/honour ( karama), wilaya ( mutual support or companionship), Ihsan ( moral excellence)  and qist ( justice). These Qur’ānic concepts that permeate the Qur’an (especially, Khilafah, Taqwa, Ma’ruf, Ihsan, and Rahma) are employed either directly or indirectly in the Qur’ān in the context of gender or spousal relationships as well as in the context of regulating the relationship between the Creator and the created as well as those at the level of general human social intercourses.[11]As such they would be applicable to the realm of family life as well which is a significant and integral part of both of these.

From these Qur’an and Sunna concepts we can derive new Maqāsid specific to Muslim family law and the concept of marriage in particular that are based on gender symmetrical rights and duties. In this respect it is my contention, clearly unlike what the majority of pre modern jurist thought, that these values cannot be meaningfully fulfilled in the context of a gender hierarchical and highly differentiated relationship present in the pre modern Muslim family law. However, one problem with this argument is that these new Maqāsid cannot be legally enforced since most of them operate at the level of feeling and emotions.  Although that is true on the basis of these new Maqāsid , as well as those outlined below, we can question the gender hierarchical and asymmetrically differentiated nature of legally enforceable aspects of Muslim family law that are based on patriarchy and an andocentric worldview.

 

V. Novel Model Of Interpreting Qur’an And Sunna And Reformation Of Muslim Family Laws

In the rest of the presentation I would like to show how this can be done by outlining an interpretational model which synthesises Maqāsid based approach and gender non-patriarchal Qur’ānic hermeneutics for reformation of Muslim family law. It consists of ontological, methodological and broader hermeneutical dimensions as outlined below.

The ontological dimension draws on the work of scholars such as Amina Wadud and Asma Barlas who have already developed sophisticated gender non-patriarchal Qur’anic hermeneutics employing many of the Qur’anic  concepts I outlined earlier such as Rahmah, muwadah, khilafa, Taqwa , Tawhid etc. This ontological dimension is based on what Wadud terms ‘tawhidic paradigm’ and Barlas calls God’s Self Disclouse of Incomparability and Unrepresentedness. These arguments imply that the only hierarchical relationship is between God/Allah and the creation and that all kinds of relationships between humans (this includes relationships between genders in and outside of context of marriage and family life) by default according to the Qur’ānic conceptualisation of God are based on reciprocity and symmetry.

Their views can be represented pictorially as follows:

1.    Ontological Dimension Of Gender Egaliterian Maqāsid  Al Nikah :

 

 

          

 

 

 

 

 

                                    

 

2. Methodological Dimension Of Gender Egaliterian Maqāsid Al Nikah

The methodological dimension draws on two principles from my book, namely an approach based on corroborative induction and thematic approaches to Qur’an and Sunna They are based on the idea of inter-connectedness of all Qur’ānic concepts whereby the Qur’ānic text is conceived as being web-like within which ideas /concepts are interwoven and are relational in nature. The identification and/or the arrival at a proper Qur’ānic value or its ‘comprehensive constant’ ( abitan kulliyan) is achieved through this thematic search for all the relevant Qur’ānic concepts (i.e. keywords underpinning its weltanschauung) which converge to engender a  larger Qur’ānic value by the method of corroborative induction (istiqrā). The eventual uncovering of the abitan kulliyan would, in turn, be the aim or the objective (qasd)  of the reading /interpreting process

 

 

 

 

 

 

             The methodological dimension of gender non-patriarchal Muslim family law can be pictorially represented as above.

I.        Circle – the  concept of gender non-patriarchal Maqāsid  al nika on the basis of relevant Qur’ānic concepts ( see II. below) is deduced

II.       Single Arrows pointing to the circle represent Qur’ānic concepts from which the gender symmetrical Maqāsid  al Nikah is derived: Muwadda(1), Rahmah (2), wilaya (3), Sakina (4), Taqwa (5) , ilafa  (6), ma ʾ ruf/Munkar  (7), karama (8) , isān (9).

III.   Double Arrows: represent inter-relational nature and interconnectedness of Qur’anic concepts giving rise to the concept of a Qur’an value which becomes its objective. So the Qur’ānic concepts labelled 1-9 would according to this manhaj yield the underlying objectives of  Qur’ānic  texts which  would give rise to the identification of a Qur’ānic  value namely, in this case,  that of gender symmetry.

2.    BROADER HERMENEUTICAL MECHANISM ON WHICH THE CONCEPT OF MAQĀSID  IN THE  QUR’ĀN  AND SUNNA  IS BASED

Finally, there are several broader hermeneutical principles upon which the concept of Maqāsid is based. In what follows we identify and define them and demonstrate how they can be applied in relation to the issue of divorce.

 

 

 

 

 

 

 

 

 

 

 

 

 

I.)           Comprehensive contextulialisation:

By comprehensive contextualization I mean investigating, in a methodical manner, the role of context in shaping of the very content of the Qur’ān and its worldview. For this to take place we need to recognize the Qur’an’s orientation towards the assumed operational discourse of its revelational context that manifests itself in the Qur’ānic content and is reflected in the grammatical and syntactical structures employed in the  Qur’ān ’s language. This Qur’ānically assumed operational discourse must be seen as often reflecting the prevalent religious, cultural, social, political and economic situation of its direct audience, its first community of listeners and participants upon which a  dialogical nature of the Qur’an’s discourse is premised. This nature of Qur’anic discourse has been noted by several Muslims scholars.  Abu Zayd, for example, considers that the Qurʾānic discourse reflects the dialectical relationship between the Qurān and the reality of the early Muslim community.  Achrati elsewhere argues that the oral-based culture of the Arab Bedouins strongly influenced the character and the nature of the Qurānic discourse.  This dialectical and symbiotic nature of the Qurān and its relationship with its first listeners is , in turn,  based upon Qur’an’s  essential orality. The hermeneutical importance of this idea of Qur’an’s recognition of the prior knowledge and mentality resident among its first audience, as has important hermeneutical implications as I will demonstrate in relation to the issue of Talaq.[12]

We can apply comprehensive contextualisation to the issue of Qur’anic concept of Talaq by noting that  one the most evident assumptions evident in a majority of the passages in the Qur’ān that have socio-legal import is the existence of an all-embracing patriarchy[13] existing in its historically revelatory milieu. [14] Husband’s right to unilateral dissolution of marriage is one aspect of this patriarchal milieu. According to Joseph Schacht:

 

The right to a one-sided dissolution of a marriage belonged to the man exclusively, among the pre-Islamic Arabs. Long before Muhammad, this  alāq was in general use among the Arabs and meant the immediate definite abandonment by the man of all rights over his wife, which he could insist upon as a result of his marriage. [15]

 

At the philological level this patriarchal revelation context is evident in the Qur’ānic injunctions, which are exclusively directed at men in matters pertaining to divorce and marriage. For example, Qur’ān [16]   (65: 1-2) instructs the Prophet that if the men divorce their women ( alāqtumu nisāʾ )they should allow women to reside in their marital home during their ‘idda and then  instructs men to  keep  or stay with their  wives in dignity or you divorce them in kindness and dignity.” [17] In the pre-modern Qur’ānic commentary (tafsīr) literature that I consulted ( Suyūti, Ibn ʿAbbas, Al Qurtubi, At –Tabari, Al -Zamakhshari , Ibn Kathīr,  and Al-Wāidi) on this verse  it is evident that all of the exegetes (mufassirūn) considered that the unilateral right of men to divorce their wives was a  ‘pre-given’ and ‘natural’ order of things and did not problematises it at all apart from emphasizing that although the verse addresses the Prophet it also is speaks to  all the male believers (mu’minūn). Instead, the Mufassireen either focused on the discussions surrounding the ‘iddat and/or proper wife’s treatment during this time and provided the circumstance for the revelation of the verse (eg. Prophet’s divorcing of Hafza or ʿAbd Allah Ibn Umar divorcing his wife when she had menses). [18]

What I wish to highlight for the purposes of the present paper is that this Qur’anic verse (and others I discussed elsewhere)[19]  pre-supposes the existence of a social and cultural order which confers the right to entering into marriage [contract], divorce, physical punishment, disciplining and even possession of women (as in case of slavery and female concubinage) solely to men, the reality of which is assumed, acknowledged and addressed by the Qur’ān. However, does this necessarily mean that Qur’ān endorses the same powers to men or does it attempt to mitigate and limit them? To answer this question we take recourse to the next hermeneutical principle namely that of Mitigation and Deduction of Moral Trajectories.

II.)          Principle of Mitigation and Deduction of Moral Trajectories:

The process of comprehensive contextualisation, in turn, points to the mitigatory nature of the  Qur’ān  and Sunna evidence in relation its socio-legal dimensions, especially those concerning women, on the basis of which the principal of moral trajectories is deduced which stipulates that the  Qur’ān  and Sunna teachings were pointing into certain directions as ideals to be attained in the future which were not possible at the time of Revelation due to the mentality and level of civilisation of the immediate audience. In other words Qur’an and are purposive in nature, that is, they pointed toward certain objectives or higher intentions.

 

The principles of mitigation and moral trajectories can be applied to the issue of the Qur’an’s concept of divorce too. Namely,  when we examine carefully the all of the  verses pertaining to divorce or marriage matters in general we come to the conclusion that they all were performing the function of  “protecting women from the power of men [they] already possess[ed] by the virtue of the customs and practices of the society in which Islam was revealed.” [20] Furthermore, as noted by scholars such as Abu Zayd and Souaiaia , based on the semantical and historical analyses of this verse, it would be safe to assert that all of the  Qur’ānic injunctions pertaining to family issues  aim  to limit the rights of men that existed in the patriarchal and tribal-based social, economic, cultural and political reality of the Qur’ānic revelational milieu, rather than stipulate absolute rules and regulations. Additionally, all of the Qur’anic injunctions pertaining to the rights of women had a mitigating effect on the basis of which we could deduce certain moral trajectories such as fairness and equality. [21]  The same mitigating effect applies to the concept of Sunna.

But is this mitigating process an end in itself or just a means to an end?

 Purposive Nature of Qur’ān and Sunna and Islamic law/philosophy:

The existence of moral trajectories points to another hermeneutical mechanism in the Qur’an and Sunna, namely their purposive nature.  By purposive nature of the ethico-legal  teachings of the  Qur’ān  and Sunna  (as systematized in Islamic law and its philosophy)  I mean that the primary function of Islamic law and the most fundamental element in its methodological philosophy  is based upon a realization and fulfillment of its purposes (maqāsid) which , in turn, are  identified on the basis of a legal theory methodology that hermeneutically privileges an ethico-religious values based approach to the interpretation of the  Qur’ān  and Sunna.

In the context of Qur’an and Sunna injunctions pertaining to Muslim family laws we could argue that if the principle of the Qur’ānic textual assumption of certain patriarchal practices prevalent in its milieu such as talaq and their subsequent mitigation on the basis of other relevant Qur’ānic verses was recognised as a hermeneutical tool giving rise to the idea of extrapolation of  moral trajectories, this would contribute towards the development of a purposive or maqasid  based Qur’ān-Sunna hermeneutic and maqasid oriented Islamic legal theory philosophy. So the Qur’anic reflection of divorce practices in its historical milieu would not be considered as representing a Qur’anic value but the Qur’an’s  mitigating and limiting concern would lead to the extrapolation of a moral trajectory pointing toward fairness and equality/ symmetry of rights as its ideals. These, in turn, would be identified as actual Qur’anic values.  The idea of values brings us to the final hermeneutical mechanism, namely that of ethico—religious values based hermeneutic of Qur’ān and Sunna.

IV.   Ethico—Religious values based hermeneutic of  Qur’ān  and Sunna :

Ethico—Religious values based hermeneutic of Qur’ān  and Sunna is a hermeneutical method which stipulates that the actual nature and character of the  Qur’ān -Sunna  discourse is hermeneutically best  served and privileges  its own interpretation on the basis of certain ethico-religious principles such as justice, righteousness, equality etc. understood in ethically objectivist terms which is to mean that ethical values such as ethically ‘good’ or ‘repugnant’ are discoverable and recognised by reason independent of revelation ( here recourse to  the Qur’anic principle of Fitrah could be taken )  and are subject of evolution in concert with civilisational progress.

This is exactly what Abu Zayd argues when suggesting that all the legal injunctions in the Qur’ān[22] are to be hermeneutically interpreted so that they are in accordance with the hermeneutically most powerful Qur’ānic value of justice which is one of  the values that the Qur’an initiated rather than reflected. In relation to Talaq, this would translate into the argument that because our contemporary notions of Qur’anic justice are in conflict with legal asymmetries and unjust ethical implications inherent in Talaq, the concept of Talaq would not be considered as part of Qur’an-Sunna teachings because it goes against the larger Qur’an –Sunna values. 

When combined together the ontological, methodological and the broader hermeneutical mechanisms outlined above engender an interpretational framework which act as a basis of gender just and non-patriarchal Muslim family law. Any Qur’ān and hadith-based evidence contrary to it must be reinterpreted in the light of this framework which occupies hermeneutically the highest position.

6. CONCLUSION:

The main concern of this presentation was to highlight the significance of making a synthesis between and incorporating the contemporary discussions on Maqāsid al Shariah and gender non-patriarchal Qur’ānic hermeneutics as important hermeneutical tools which can engender a gender symmetrical Muslim family law. In this respect I attempted to outline a model of interpretation of the Qur’an and Sunna which can engender gender symmetrical Muslim family laws. 


[1] I will make reference to them in what follows in the main article.

[2] Ibid.

[3] Mohammad Hashim Kamali, “Islamic Family Law Reform: Problems and Prospects”, Islam and Civilisational Renewal  3/1 (2011), p. 37-52.

 

[4] Mohammad Hashim Kamali, “Maqāsid  Al Shari ah and Ijtihad as Instruments of Civilisational Renewal: A Methodological Perspective, “Islam and Civilisational Renewal, 2/2 (2010), p. 245- 271.

[5] Kamali, “Islamic Family Law Reform,” p. 51.

[6] This section relies heavily on Amineh Mahallati, „Women in traditional Sharīʾa: a list of differences between men and women in Islamic tradition“, Journal of Islamic Law and Culture, 12/1 (2010), p.  1-9

[7] Although differences between different schools of thought exist, most of them not consequential, on some of these gender issues for the purposes of this book chapter what is written in this section can be seen as being generally representational of the majority of Islamic tradition.

[8] This phrase will be explained in the main text below.

[9] Al-Zamakhsharī, Jār Allāh Mahmūd b. ‘Umar,  Al-Kashshāf , Ed. Ahmad b. al-Munīr al-Iskandarī , Beirut, Dār al-Kitāb al-‘Arabī, 1965, v. 1, 505., Cited in and translated by Karen Bauer,  „Room for Interpretation“,137.

[10] Duderija, Constructing a Religious Ideal ‘Believer’ and ‘Woman’ in Islam, op.cit.

 

[11] I have separated these two realms for clarification purposes only. In actual fact the  Qur’ān  does not make such a neat distinction between the two if at all.

A. Duderija, The Case study of Patriarchy  and Slavery: The Hermeneutical Importance of Qur’ānic Assumptions in the Development of a Values-Based and Purposive Oriented Qur’ān-Sunna Hermeneutic, Hawwa, 11,1,1-30.

[13]  There are many definitions of  patriarchy but in our case we shall define it as control/rule  of fathers/men  over women at each/or some levels of society , (e.g. family, public life in terms socially  acceptable norms and behaviours  ) , law ( e.g. family law)and politics ( partaking in having a say in which a society is run and the higher value bestowed upon  work performed by men compared to that of the women ).

[14] Which does not imply that Quran’ān is necessary or in essence a patriarchal text. In fact the Qur’ān can sustain multiple interpretations some of which can be seen as being anti-patriarchal. For example, Barlas, Believing Women in Islam-Unreading, op.cit. For a contrary view See Souaiaia, Contesting Justice, p.115 in particular.

 

[15]J. Schacht, J and A. Layish, "alā (a.)." Encyclopaedia of Islam, Second Edition. Edited by: P. Bearman; , Th. Bianquis; , C.E. Bosworth; , E. van Donzel; and W.P. Heinrichs. Brill, 2012. Brill Online. University of Melbourne. 18 January 2012

[16] Y.Ali’s translation of the Qur’ān is used here.

[17] O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods: And fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave… (65:1)Thus when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms… (65:2)

 [18] The Tafsir are available here: http://mosshaf.com/web/

[19] A. Duderija, The Case study of Patriarchy  and Slavery: The Hermeneutical Importance of Qur’ānic Assumptions in the Development of a Values-Based and Purposive Oriented Qurān-Sunna Hermeneutic, Hawwa, 11,1,1-30.

[20] Khaled Abou  El-Fadl, “The Pearls of Beauty”,  in his  A  Search for Beauty in Islam: The Conference of the Books ,Rowman and Littlefield,  University of America Press, 2001, p.275.

[21] Verses such as 2:227;2;230 and 4:35 which address both parties in marriage suggest that there was “an incremental empowerment of women” scheme  unfolding in the Qur’ān., El-Fadl, “The Pearls of Beauty”,  p.275. 

[22] These legal injunctions mentioned in the Qur’ān, according to Abu Zayd, ought not to be considered to actually be Qur’ānic. The only purely or solely Qur’ānic values are those that have been initiated by the Qur’ān. He also adds that, based on this criterion none of the Qur’ānic injunctions pertaining to punishments ( hudūd) , inheritance  or divorce laws ( i.e. those that differentiate on the basis of gender or social status  in general) are Qur’ānic or divine imperative as they were not initially established by the Qur’ān, Rather they  reflect  the historical and cultural norms within which Qur’ān was revealed and initially operated. The Qur’ān initially operated within this context, argues Abu Zayd further, in order that its immediate addressees would ‘get’ or comprehend its ultimate message which is theological and moral in nature. Elevating this historical aspect of the Qur’ān to divine status or at the expense of the divine and perennial Qur’ānic values such as justice, argues Abu Zayd , would violate the actual Word of God. “The Nexus of Theory and Practice, p.154-167.

 

URL: http://newageislam.com/islamic-society/dr-adis-duderija,-new-age-islam/maqasid-al-shari-‘ah,-gender-non-patriarchal-qur’ānic-hermeneutics-and-the-reformation-of-muslim-family-law/d/12015

 

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