As it is the core of all Muslims beliefs that Islam promotes justice and equality, does it mean that her independent rights are protected and upheld? Or is she merely an inferior gender in an era where most laws and regulations are guided by male centric approaches, justified and upheld in the name of Islam? At a glance, the latter approach seems more congruent with current issues. However, the prevailing interpretations of the Sharia Law do not reflect the values and principles that Muslims hold at the core of their faiths. This paper therefore seeks to justify the injustice built around this distorted ideology, attempting to assess the compatibility between Sharia Law, particularly with regard to Islamic family law, and Feminism. The subject matter behind Islamic Family Law is especially vast and diverse, ranging from the marital engagement, child custody, divorce, polygamy, maintenance all to women as witnesses. Therefore, this paper seeks to address two of the highly contentious matter, namely polygamy and divorce. Among others, this paper argues that the deterioration of women’s rights in many states that practices Islamic Law has no correlation with the contextual teachings of Sharia Law, but rather with the patriarchal nature of those states. This paper further attempts to conclude that if polygamy and divorce under Sharia Law are practiced within the foundation of its Islamic nature, not only is it compatible with the theory of feminism, it further advocates feminist movement in its support to protect and preserve women’s rights.
For the purpose of this paper, it is divided into two section. The first section shall discuss the Sharia Law rulings regarding polygamy and divorce based the Al-Quran and Al-Sunna, the primary sources of Sharia Law. This papers continues on to compare the theoretical framework with the applied law from several states which practices Islamic Family Law. It confers the development of the classical legal schools, observing the gradual change of Sharia law which carries out the egalitarian approach to regulations which are discriminatory towards women’s rights, contrary to the teachings of Islam. The subsequent section seeks to assess the compatibility of Sharia Law and feminism, highlighting several international treaties which emphasizes on equality and women’s rights. Amira Mashhour accurately stipulates that although women’s rights in non-Muslim societies are not totally fulfilled, oppression of women’s rights in Muslim societies is unique in that it is primarily done in the name of Islam. These communities claim – falsely – that certain discriminatory practices are congruent with Sharia Law. By doing so, Muslim societies has given sacred justifications for any discrimination or inequality already in existence or that could be stipulated in the future. Feminist movement have resulted as a reaction to the unjust and miserable circumstances which women have had to encounter throughout history. Feminism is grounded on the belief that women are oppressed or disadvantaged in comparison to men, and that this oppression is illegitimate or unjustified. but under the umbrella of this general conceptual understandings, there has been many interpretations of what it means to be oppressed. Thus, it is a mistake to believe feminism is a single consistent philosophical worldview, or a universal unified political programme, rather than a kaleidoscope of perception. Therefore, this paper attempts to show that if applied Islamic laws within this century are stripped from its patriarchal nature and follows suit in accordance to the theoretical framework of Sharia Law, succeeding regulations may yet be able to promote women’s rights.
2.0 What is Shari’ah?
When it comes to Islamic Law or Shari’ah, there is an inevitable misconception amongst many, both Muslims and non-Muslims, that it is purely divine and immutable. There is a holistic belief that Shari’ah allows no room for change and evolvement, transgressing any form of evolvement that follows the winds of time. It is a little ironic considering the fact the Islam is one of the major continuing civilizations of the world, and is the fastest growing religion in the world today. Obviously this distorted belief cannot be farther from the truth and therein lies the problem. Due to such ignorant understanding, Kerr connotes that “for Muslims this resulted in the formulation of Anglo Muhammadan law where misconceived and fossilized Muslims laws based on centuries-old misinterpretations of history became the rule of law.” Thus, it is ultimately vital to understand what Shari’ah truly is.
Shari’ah literally means ‘path to be followed’ or the ‘right path’. Shari’ah encompasses its main primary source followed by its supplementary source, Fiqh. The main primary sources of Shari’ah is the Quran, which Muslims believe to be the words of God, followed by the Sunna, which refers to the authentic Traditions of the Prophet Muhammad. Following the primary sources, Fiqh, on the other hand covers the legal or juridical aspect of the Shari’ah as distinguished from the moral. Thus, Fiqh refers to the methods of law, the process of understanding as well as applying the primary sources of Shari’ah, in accordance to time and circumstances. Fiqh encompasses 3 main extensions namely analogy (Qiyas), consensus among Muslim scholars (Ijmaa) and independent juristic reasoning (Ijtihad). Ijtihad refers to independent juristic reasoning to provide answers when the Quran and the Sunna is silent. An illustrative evidence of Fiqh being a strong source of Shari’ah Law is the Prophetic Tradition in which the Prophet asked one of his companion, Mu’adh ibn Jabal, who later became a judge in Yemen. Mu’adh was asked what would be his source of law in decided cases. Firstly, Mu’adh answered, “I will judge with what is in the book of God (Quran).” And then the Prophet asked, “And if you do not find a clue in the book of God?” Of this Mu’adh answered, “Then with the Sunnah of the Messenger of God.” And again the Prophet again asked, “And if you do not find a clue in that?” and Mu’adh answered, “I will exercise my own legal reasoning.” This was reported as gaining the approval and satisfaction by the Prophet.
The misconception of Shari’ah lies in the fact that people often equalize the primary source of Shari’ah with Fiqh. Although the primary sources of Shari’ah, namely the Quran and Sunna, as well as Fiqh falls within the same emblem, they are not technically synonymous. While the primary sources of Shari’ah is divine and textually immutable in nature, Fiqh is not. Hosseini aptly stipulates that while the primary sources of Shari’ah is sacred, universal and eternal, Fiqh is human, and subject to change. Unfortunately, Hosseini further adds, Fiqh is often mistakenly equated with the primary sources of Shari’ah, in political, academic and legal Muslim discourses to be a sharia mandate, alas shrouding obfuscation on the true ideals of Shari’ah. Furthermore, as Lesley Hazleton correctly phrased,
“Part of the problem, I think, is that we imagine the Quran can be read as we usually read, a book. As though we can curl up with it on a rainy afternoon with a bowl of popcorn within reach, as though God, and the Quran is entirely in the voice of God, speaking to Prophet Muhammad, was just another author on the bestseller list.”
The concept of Islamic Family Law, particularly with regard to polygamy and the dissolution of marriage, are no less victims to these distorted ideologies. It is therefore crucial to understand the true nature and spirit of the Quran with regard to polygamy and dissolution of marriage.
2.1 Polygamy in Shari’ah Law.
Family and societal structures of Muslim societies are based on principles prescribed by religion, reinforced by the law and cherished by the individuals. These are the core tenets which makes Islamic family law an important vestige in Islam. Marriage thus becomes a vital vessel in ensuring that the sanctity of family law is preserved. John Esposito rightly pointed thus
“Islam considers marriage, which is an important saferguard for chastity, to be incumbent on every Muslim man and women unless they are physically or financially unable to lead a conjugal life.”
Often we hear comments and opinions stating that the Quran and Sunna in fact advocates women’s rights and preserves their welfare both women and children. In fact, the Quran and Sunna introduced substantial improvements in the standing of women. At a glance, one would suppose that it is inconceivable to digest such notion considering the fact that the Quran and Sunna supports polygamy and polygamy, as it stands, is a manifestation of how patriarchal interpretation can prevail and dominate. However, the issue at hand is not as simplistic we would like to grasp them. Rehman submitted that the hastiness in the condemnation of historic Islamic principles fails to take into account of the contextual, and flexible nature of the Sharia, and the rules of Islamic family law. The historical setback and the wordings of the Quran plays an important role is dissecting what the spirit of the Quran truly entails where polygamy is concerned. The fundamental question is this: were there any rational reasons for legitimizing polygamous marriages within the Shari’ah?
The revelation of the ayaat in the Quran legalizing marriage came at a time when women were nothing but mere objects and under the subjugation of men. During Pre-Islamic Arabia, women had no legal standing and were treated like slave, readily prepared to be sold off and bought under the pretentions of marriage. Women had no choice on how and who they intend to be married off to as all these bargains were arranged by their tribal elders. Not surprisingly, not only do they have no say on the matter, the sale and purchase of a women was in consideration of a dower (mahr) provided by the husband, to the tribal family. Instant divorce is a natural occurrence that happens followed by unlimited polygamy.
The Quran and the Sunna thus provided a progressive code of family values to a society that persisted in the violation of women’s and children’s rights. In the seventh century pre-islamic arabia, the Shari’ah awarded women with the independent right to enter into a marriage at her own consent. The following verse legalizing marriage as well as polygamy are as follows:
And if you fear that you shall not be able to deal justly with the orphan-girls, then marry (other) women of your choice, two or three, or four but if you fear that you shall not be able to deal justly (with them), then only one or (the captives and the slaves) that your right hands possess. That is nearer to prevent you from doing injustice.
There several issues at hand that needs to be addressed to understand the true context of this verse which demonstrates its pragmatic nature. Firstly, the verse was communicated to the Prophet after the murderous battle of Uhud in which there was a large number of male Muslim casualties, leaving scores of young women widowed and orphaned. In part, the verse intended to ensure it is of paramount importance that the widows and orphans are offered physical and financial protection. as Barlas correctly points out, polygamy was intended for a specific and restricted purpose and that is to serve justice and provide protection to those in need. Second, the Quranic ideal is clearly to establish a monogamous union as the following verse notes
Ye are never able to be fair and just as between women, even if it is your ardent desire.
Azizah Al-Hibri goes on to illustrate that even if you’re allowed to marry up to four wives (within restricted conditions) you ought to be fair amongst your wives. If you are not able to be fair amongst your wives, then you should marry only one. The last verse further implies that no one is able to be just and fair among women however they desire. Abd Al Ati further denotes that polygamy should not be viewed as either a blessing for one sex and a curse for the other but as a legitimate alternative applicable to some difficult “crisis” situation. Therefore, polygamy was never introduced to serve as an inherent right for man upon women, but rather a restricted responsibility where needed. Ultimately, it aims to specifically to serve justice and provide some form of protection to those in need of such protection.
Unfortunately, due to severe exploitations of the verse, the pure and pragmatic spirit of the verse was largely falsely misinterpreted in an attempt to interpret the verse in men’s favour in order to preserve any form of patriarchy in a culture. Rehman in citing Ali denotes that the male dominated societies of the Arab and Muslim world abused the system with considerable exploitation of the rights of women and children with biased construction of ‘islamic jurisprudence’, where gender neutral terms have been translated and interpreted as masculine, creating gender hierarchies and unequal rights for men and women. This patriarchal system which was established centuries ago has continued on up to this date due to the sheer misconception that it is the mandate of Shari’ah, where it is proven, not.
2.2 Divorce in Shari’ah Law.
“Of all the permitted things, divorce is the most abominable with God.” In citing Abdur Rahman, divorce is indeed highly discouraged in Islam. Nevertheless, it is an option where there is no hope of reconciliation in the marriage. Regardless, even in the act of divorce, both husband and wife should be civil with one another and treat each other with respect. The verse that governs the Shari’ah with regard to divorce is as follows
O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah , your Lord. And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah.
Under the Shari’ah. a marriage may be dissolved by both men and women. However, the degree of right differs substantively. A man has a single unilateral right, namely, talaq, while a woman has four forms of legal grounds, namely through delegated talaq (tafwid talaq), discharged at the wife’s request (Khul), through mutual consent (Mubara’ah), and lastly through judicial authority (fasakh). There are a few things to consider i
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