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    MUSLIM WOMEN‟S RIGHTS IN THE GLOBAL VILLAGE:

    CHALLENGES AND OPPORTUNITIES

    Azizah Yahia al-Hibri This article was reprinted by permission of the Journal of Law and Religion

    INTRODUCTION

    In this age of information technology that shrank our world into a

    global village, it is fair to ask how this recent development has impacted

    Muslim women‟s rights across the world. Having just traveled through

    nine Muslim countries, ranging from Pakistan and Bangladesh to the

    Gulf States, Egypt, Syria, and Lebanon, I would answer that it is leading,

    1slowly but surely, to reassessment and change. Attempts to accelerate

    the pace of this change, however, without full understanding of its

    complex topology, and the deep-rooted commitment by most Muslim

    women to spiritual and cultural authenticity, could halt or even reverse

    this process at great cost to women particularly and Muslim societies as

    a whole. Hence the challenges and opportunities.

    Pious Muslim women are generally bewildered by the laws and

    judicial systems of their societies, which are supposed to be Islamic. It

    2is well understood that the hallmark of Islam is justice. Yet Muslim

    societies have been dispensing injustices to women in the name of Islam.

    Some women seeking divorce in Islamic courts have been trapped 3within the system for years. On the other hand, divorce and remarriage

     Fellow, National Humanities Center. Professor of Law, University of Richmond. Presented for the Hannibal Club Event, September 28, 1999. 1. The trip was arranged and funded in part by the United States Information Service (USIA) and funded in part by the University of Richmond. The author thanks her student research assistants, Ms. Colleen Gillis and Ms. Ghada Qaisi, for blue-booking this article under immense time pressures. The author also thanks Ms. Linda Woolridge for proofreading it. 2. [Editor‟s Note: Translation of all Qur‟anic cites herein were provided by the author who relied heavily on The Meanings The Holy Qur’an, trans. „Abdullah Yusef „Ali (Brentwood 1992).] See Qur‟an 16:90, 49:9; Muhammad „Amara, Al-Islam wa Huquq al-Insan 55-68 (Beirut: Dar al-Shuruq 1939) (arguing that justice leads all other values in Islam); al-Mawsu’a al-Fiqhiyya vol. 30, 5-14 (Kuwait: That al-Salasil, Ministry of Awqaf & Islamic Affairs in u.c. Kuwait 1983) (describing the different types of justice required in Islam and that Justice is one of God‟s names). 3. According to one woman, her divorce action had been pending in the courts for seven years. It had not reached its conclusion when we met. She was concerned about the loss of her reproductive years before the finalization of her divorce, thus dimming her chances for a remarriage and children.

    101

    102 JOURNAL OF LAW & RELIGION [Vol. XV

    4have been rendered much easier for men. Also, various Shari’ah (Islamic law) protections for women in case of an unhappy marriage,

    divorce, or custody have been ignored even by the women‟s own 5families. While Western feminists have been focusing on such issues

    as the veil and the perceived gender discrimination in the laws of

    inheritance, Muslim women I spoke to did not regard these issues as

    important. They were more interested in re-examining family law and in

    the proper application of all Islamic laws, including the laws of

    inheritance as they stand. In short, Muslim women want a more just

    understanding of and adherence to Islamic principles. They appear to

    believe that existing laws and practices are not conducive to a happy

    home life or a just society. Surprisingly, Muslim women have the

    support of many Muslim male jurists who share their concerns.6

    Several factors have forced Muslims to reassess the status quo.

    The colonization experience, wars, Western education and Western 7modes of communication have been primary among these factors. Colonization exposed the soft underbelly of the indigenous systems of

    governance, while at the same time challenging and marginalizing the 8Muslim individual‟s religious beliefs and cultural values. Wars dislodged established social structures, especially those relating to the

     4. Women in many countries complained about the ease with which a husband is allowed to divorce his wife. This trend contravenes a substantial body of traditional Islamic jurisprudence that offers important protections to the wife. 5. Some of these protections include the right of the woman not to be married without her consent, her right to a reasonable sadaq (financial or other gift given by the husband upon marriage), as well as her right to education and work. Other neglected protections include protection against abuse (even verbal abuse) and against interference by the husband in the wife‟s financial affairs. 6. Among recent jurists who were vocal in their support of women‟s rights generally, or in certain arenas, is the late Abdul Halim Abu Shuqqah, who wrote Tahrir al-Ma’a fi ‘Asr al-Risala, 5 vols. (Kuwait: Dar al-Qalam 1990). Earlier this century, Muhammad Rashid Ridha also presented a Qur‟anic interpretation which was more equitable towards women. See e.g. Muhammad Rashid Ridha, Huquq al-Nisa’ fi al-Islam (Beirut: al-Maktab al-Islami reprint 1975) [hereinafter Ridha Huquq]‟ Muhammad Rashid Ridha, Tafsir al-Qur’an al-Hakim (Beirut: Dar al-Ma‟rifa 1947). See also a work by Sheikh Mahdi Shams al-Din, a contemporary jurist who argued for the woman‟s right to assume political power entitled Ahliyyat al-Mar’a li Tawalli al-Sultah (Beirut: al-Mu‟assasah al-Duwaliyyah li al-Dirasat wa al-Nashr 1995). Sheikh al-Din is a contemporary jurist who argued for the woman‟s right to assume political power. 7. Some of these matters were discussed in Azizah Y. al-Hibri, Islamic Law and Muslim Women in America, in One Nation Under God 128-142 (Routledge 1999) [hereinafter al-Hibri, Islamic Law]; Azizah Y. al-Hibri, Legal Reform: Reviving Human Rights in the Muslim World, 20 Harv. Intl. Rev. 50 (1998) [hereinafter al-Hibri, Legal Reform]; Azizah Y. al-Hibri, Islamic and American Constitutional Law: Borrowing Possibilities or A History of Borrowing? 1 U. Pa. J. Const. L., 492-527 (1999) [hereinafter al-Hibri, Constitutional Law]. 8. For more on this, see my discussion in Azizah Y. al-Hibri, Islamic Law and Muslim Women in America, in One Nation Under God 128, 134-135 (M. Garber & R. Walkowitz eds., Routledge 1999).

101] MUSLIM WOMEN’S RIGHTS 103

    9family. Finally, through the twin lenses of Western education and modes of communication such as satellite television and the Internet,

    Muslim men and women are experiencing instantaneously, though

    vicariously, the post-colonial Western worldview and Western ways of

    life. Generally, they like a good part of what they see, such as

    democratic governance, freedom of speech, independent women, and

    comfortable technologically advanced societies. There are other things,

    however, they decidedly do not like, such as sexual permissiveness, the

    accelerating divorce rate, growing violence in society, especially among

    the youth, and the treatment of the elderly.

    Consequently, many Muslims, male and female, are struggling

    today with the following questions: How do they introduce progress into

    their societies, while at the same time protecting their deep-seated

    spiritual beliefs and cultural identities, two valuable foundations that

    colonialism tried unsuccessfully to destroy? How can they benefit from

    the Western experience, including its recognition of the legitimate rights

    of women, without inadvertently destroying their highly valued familial

    ties? In this context, the experience of those North American Muslims

    who have successfully integrated their religious beliefs and ethnic

    heritage with the American and Canadian ways of life becomes very

    valuable. It is a living proof of the fact that Islam is not a mere

    “Oriental” religion, but a world religion which is capable of meeting the

    needs of Muslims in all historical eras and all geographical locations.

    T

    HE ROLE OF NORTH AMERICAN MUSLIMS

    For this reason, beginning a discussion about Muslim women‟s

    rights in the Global Village by offering a North American Muslim

    perspective is neither irrelevant nor insignificant. In fact, my audiences

    in the various Muslim countries were very interested in my perspective.

    Once they recognized my serious spiritual commitment and

    jurisprudential knowledge of the topic, they wanted further information

    10about women‟s rights in Islam. There is, however, one drawback when

    a North American Muslim speaks. While non-American Muslim

    women and men may like my jurisprudential views on women‟s rights

    and welcome them, some may view them as exclusively suitable to the

    circumstances of North American Muslim women. On the other hand,

    others may be encouraged by them, perhaps as ushering in a new way of

     9. Id. 10. Many questions were asked (politely) to test my knowledge of Islam and Arabic, as well as to uncover my intentions. Once this test was passed, communication channels became wide open.

104 JOURNAL OF LAW & RELIGION [Vol. XV

    organizing their society which may conflict with some outmoded aspects

    of their culture but not with their religious beliefs. Such views would

    offer a fulcrum for change in the Muslim world.

    For the sake of this second group, and for the sake of American and

    Canadian Muslims who have asked me repeatedly about Muslim

    women‟s rights, I shall focus in this article on those women‟s issues that

    are most important for the Muslim community. In drawing my

    conclusions, I shall rely mainly on basic and traditional Islamic sources

    to show that problematic jurisprudence was often the result of a

    misunderstanding or misapplication of the Qur‟anic text resulting from

    cultural distortions or patriarchal bias. In preparation for this discussion,

    we need first to lay the foundation for understanding Islamic

    jurisprudence and its relation to culture.

    THE RELATION OF RELIGION TO CULTURE

    The distinction between (and relationship of) culture and religion is critical for understanding Islamic jurisprudence. Most importantly, the

    Qur‟an is the revealed Word of God, whereas culture is human

    11fabrication. So, while a Muslim is bound by every letter, word and phrase in the Qur‟an, she is not bound similarly by her cultural values.

    For example, a Muslim may reject a particular cultural custom or value,

    yet remain part of that culture. She cannot, however, reject even a single 12word in the Qur‟an and continue calling herself a Muslim. It is that

    simple and clear for Muslims. Consequently, cultural assumptions and

    values that masquerade as religious ones are insidious insofar as they

    mislead Muslims into believing that they have divine origins, thus

    denying Muslims the right to assess them critically, or even reject them.

    Some of the major misleading cultural assumptions relate to issues of

    13democracy and women‟s rights. The two issues incidentally are not

    unrelated.

     11. Muslims believe that the Qur‟an is the Word of God revealed to the illiterate Prophet Muhammad through the Archangel Gabriel. For more on this and a quick description of Islamic law, see Azizah Y. al-Hibri, Islamic Constitutionalism and the Concept of Democracy, 24 Case W. Res. J. Intl. L. 1, 3-10 (1992) [hereinafter al-Hibri, Islamic Constitutionalism]. 12. It may be argued that exceptions arise in situations where jurists interpret a verse of the Qur‟an as having been superceded by a later verse (or hadith, according to some). The general rule, however, remains. In one famous incident, the Sudanese Mahmoud Taha was executed for arguing that a substantial part of the Qur‟an should be abrogated because it had become, in his view, obsolete. While the decision to execute was a political one made by former President al-Numeiri, it was disguised as a religious one. The justification used reflects the universal view held by Muslims, namely that rejecting any part of the Qur‟an is tantamount to rejecting Islam. 13. Al-Hibri, Islamic Constitutionalism, supra n. 11; Azizah Y. al-Hibri, Islam, Law and Custom: Redefining Muslim Women’s Rights, 12 Am. J. Intl. L. & Policy (1997) [hereinafter al-Hibri, Islam].

    101] MUSLIM WOMEN’S RIGHTS 105

    Cultural assumptions and customs have often been introduced

    legitimately into the Islamic legal system. The Qur‟an celebrates ethnic,

    racial and other forms of diversity; and the hadith (reported words of the 14Prophet) emphasizes the equality of all human beings. For this reason, jurists have encouraged various cultures to retain their cultural identity 15by including their customs in their legal systems. The only condition for such inclusion was that these customs be consistent with the basic 16tenets of Islam itself. In case of inconsistency, the cultural customs 17must be rejected. This approach permitted a variety of Islamic

    civilizations to blossom, each with its own cultural heritage but all

    sharing the same basic religious law. Unfortunately, however, some

    customs that conflicted with Islamic tenets increasingly found their way 18into the laws of various Muslim countries. Even today, many countries that claim to be following Islamic law often use religion to justify 19repugnant laws that are really based on custom. Because such justifications are offered in Muslim societies whose religious education

    has mostly likely suffered in the last century, Muslims are often unable

    to discern the cultural roots of objectionable laws and their conflict with

     14. See Qur‟an 4:1, 6:98, 7:189; Khutbat al-Wadaa’ by the Prophet, in which he stated: O People, all believers are siblings. Your God is one and your father is one. You are all from Adam and Adam is from dust. The most favored amongst you in the sight of God is the one who is most pious; no Arab is favored over a non-Arab except on the basis of piety. thHassan Ibrahim Hassan, Tarikh al-Islam vol. 1, 186 (7 ed., Cairo: Maktabat al-Nahda al-Misriyyah 1964) (also recounting that some Muslims objected to the fact that the Prophet gave his permission for a free woman to marry a slave, and that the Qur‟anic verse 49:13 was revealed on this occasion). For a translation of the full text of verse 49:13; see infra n. 94. 15. See al-Hibri, Islam, supra n. 13, at 6-7; Ali Haidar, Durr al-Hukkam fi Sharh Majallat al-Ahkam vol. 1, 40-46 (Beirut: Dar al-Kutub al-„Ilmiyyah n.d.) (explaining the importance of acknowledging and defining the role of custom in Ottoman law, and quoting the hadith that what Muslims deem to be good, is good in the sight of God); Mohammad Hashim Kamali, Principles of Islamic Jurisprudence 283-296 (1991); Subhi Mahmassani, Al-Awda’ al-Tashri’iyyah fi al-Duwal al-’Arabiyyah 438-442, 479, 481 (3d ed., Beirut: Dar al-„Ilm li al-Malayin 1965) [hereinafter Mahmassani, Al-Awda‟]; Subhi Mahmassani, Muqaddimah fi ‘Ihya’ ‘Ulum al-Shari’ah 59-93 (Beirut: Dar al-‟Ilm li al-Malayin 1962) [hereinafter Mahmassani, Muqaddimah] (noting, among other things, that the permission to change a law as a result of change in time or place relates only to matters of mu’amalat, that is, dealings among people, and does not apply to Qur‟anic text or to ‘ibadat, that is, matters of worship). 16. See al-Hibri, Islam, supra n. 13, at 61; Haidar, supra n. 15, at vol. 1, 40; Kamali, supra n. 15, at 284; Mahmassani, al-Awda’, supra n. 15, at 438-439. 17. See al-Hibri, Islam, supra n. 13, at 6; Haidar, supra n. 15, at vol. 1, 40; Kamali, supra n. 15, at 284; Mahmassani, al-Awda’, supra n. 15, at 438-440 (but noting that some Muslim countries have given preference in their modern laws to custom over shari’ah); 18. For an excellent discussion of this point, see Mahmassani, al-Awda’, supra n. 15, at 433-475. 19. A good example of this is Pakistan‟s zina (adultery) laws. For an excellent discussion of these laws which are claimed to be based on Islam, see Asifa Quraishi, Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective, 18 Mich. J. Intl. L. 287 (1997).

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    20Islam. As a result, devout Muslims hesitate to criticize any part of the

    law. In other words, confusion as to the religious character of some

    laws has effectively resulted in silencing important critical voices and

    keeping society bound by repugnant customs mistaken for religious

    injunctions.

    It is furthermore important to understand that Islamic laws as they

    relate to mu’amalat (dealings among people) often reflect differences of

    21jurisprudential opinion among major Muslim scholars. These 22differences have many roots. Allowing custom into the legal system is 23only one of them. Another root derives from the right to freedom of 24conscience, which is guaranteed in the Qur‟an itself. For this reason, it is established in traditional Islamic jurisprudence that scholars have the

    right to engage in their own ijtihad (jurisprudential interpretation) to 25develop laws that are best suited to their jurisdiction and era. That 26ijtihad is then reflected in the legal system of the country. Unfortunately, however, several factors have combined throughout 27history to narrow the scope of ijtihad and limit freedom of thought. As a result, many schools of thought disappeared and no new ones replaced 28them. Furthermore, scholars continued to adhere to established

    schools of thought even when these were no longer best suited to their 29societies. Only recently, for example, did Morocco revise its personal

     20. I came face to face with this problem while on a USIA tour. In a closed meeting with some leading Muslim women, it became clear that several of them were chafing under certain patriarchal laws in their country but were unwilling to contest them because they thought these laws were based on the Qur‟an. 21. The most obvious instance of this fact is reflected in the Muslim family law of the various countries. For a detailed discussion, see al-Hibri, Islam, supra n. 13, at 10-14; Azizah Y. al-Hibri, Marriage Laws in Muslim Countries, 4 Intl. Rev. Comp. Pub. Policies 227, 229-241 passim (1992). 22. See al-Hibri, Constitutional Law, supra n. 7, at 506, 509; Mahmassani, Muqaddimah, supra n. 15, at 35-55. 23. For a discussion of the various considerations that could lead to differences of opinion and thus different formulations of the law, see al-Hibri, Constitutional Law, supra n. 7, at 505-511; Kamali, supra n. 15, at 197-228, 245-309 passim; Mahmassani, al-Awda‟, supra n. 15, at 478-482. 24. Qur‟an 2:256. 25. See Mahmassani, Muqaddimah, supra n. 15, at 67. The most salient example of this fact is that of Imam al-Shafi‟i, who changed aspects of his jurisprudence after he moved from Iraq to Egypt. See id. at 40; Taha Jabir al-„Alwani, Usul al-Fiqh al-Islami (The Foundations of Islamic Jurisprudence) 33-36 (International Institute of Islamic Thought 1990); Muhammad Abu Zahrah, Al-Shafi’i 145-146 (n.p.: Dar al-Fikr al-„Arabi 1948); „Ala‟ Al-Deen al-Samarqandi, Tariqat al-Khilaf bayn al-Aslaf (The Method of Disagreement Among the Predecessors) 13 (Beirut: Dar al-Kutub al-„Ilmiyyah, 11th Century reprint 1992). 26. See supra n. 19. 27. Mahmassani al-Awda‟, supra n. 15, at 477-478; al-Hibri, Islam, supra n. 13, at 7; al-Hibri, Legal Reform, supra n. 7, at 50-53. 28. Al-Hibri, Constitutional Law, supra n. 7, at 522-523; Mahmassani, Muqaddimah, supra n. 15, at 20-22, 39. 29. Muhammad Abu Zahrah, Al-Ahwal al-Shakhsiyyah 9 (n.p.: Dar al-Fikr al-„Arabi 1997)

    101] MUSLIM WOMEN’S RIGHTS 107 status code to eliminate a provision allowing the father to force his bikr 30(virgin) daughter into marriage. The provision derived from the Maliki

    tradition and represented an obsolete cultural interpretation of the

    parental relationship, yet it remained as part of the law for a very long 31time. A closer look at the Maliki interpretation would have revealed

    its inconsistency with the hadith that requires the consent (or permission) 32of a bikr for the validity of her marriage. Such inconsistencies were often overlooked by earlier jurists who were caught up in their own

    cultural perspectives. As these perspectives become outmoded, it

    becomes important to expose and eliminate them.

    It is not possible, however, to critically assess Islamic law without

    a proper Islamic education. Politics, unfortunately, has played a major

    33role in denying the average Muslim a good religious education. This

    denial, in part a colonialist legacy, helped political regimes confuse the 34masses about what is in the Qur‟an or what the Qur‟an actually says.

    Such confusion did critical damage in areas of Islamic law relating to

    issues of governance and democracy. Recognizing their responsibility

    towards God and Muslims, jurists made repeated attempts to clarify 35Islamic law on these matters, as they struggled to keep political 36influence out of the mosque. But authoritarian rulers quashed these

(arguing that Hanafi law is no longer suitable in some respects for modern times). Only recently did Morocco abandon the Maliki rule that a father may force his virgin daughter into marriage against her will. See al-Hibri, Islam, supra n. 13, at 11, 15 (stating that other Muslim jurists disagreed with Malik on this matter). Also, some countries continue to have in effect laws based on a jurisprudence that assumes that women can be easily swept by emotions and hence need the protection of men. See id. at 15. 30. Moroccan Code, infra n. 83, Royal Decree No. 193347, bk. 1, tit. 3, ch. 12 (1993) (deleting old bk. 1, tit. 3, ch. 12(4) & revising old bk. 1, tit. 3, ch. 12(1)-12(3). 31. Al-Hibri, Islam, supra n. 13, at 14-15. 32. See Abu al-Hussein Bin Muslim, Sahih Muslim bi Sharh al-Nawawi vol. 9, 202-205 (9th Century, reprint, n.p.: Dar Ihya‟ at-Turath al-„Arabi n.d.) [hereinafter Sahih Muslim] (quoting the Prophet as saying that a virgin may not become married without her permission). 33. See al-Hibri, Constitutional Law, supra n. 7, at 522-523; al-Hibri, Islamic Law, supra n. 7, at 129. See also Abu Hamid al-Ghazali, Ihya’ ‘Ulum al-Din 33-34 (Matba‟at Mustafa al-Babi al-Halabi 1939); Ibrahim al-Wazir, ‘Ala Masharif al-Qarn al-Khamis ‘Ashar al-Hijri 42 (Beirut: Dar al-Shuruq 1989); Hassan al-Zein, al-Islam wa al-Fikr al-Mu’asser 45-46 (Dar al-Fikr al-Hadith 1997); ‟Abd al-Rahman Ibn Khaldoun, al-Muqqadimah 209 (14th Century, reprint, Kitab al-Qalam 1978); cf. al-Ghazali, supra, at vol. 2, 337-351 (providing instances where people who spoke out to the ruler directly were not punished). 34. See al-Hibri, Islamic Law, supra n. 7, at 134-135. 35. Most significant among the recent attempts are the works of Abd al-Razzaq al-Sanhuri, Fiqh al-Khilafah Wa Tatawwuruha (Cairo: al-Hay‟a al-Masriyyah al-„Ammah li al-Kitab 1989) (argues that the Islamic system of government is quite similar to the system of government in the United States); see Tawfic al-Shawi, Fiqh al-Shurah (Dar al-Wafa‟ 1992). 36. Today, Muslim governments often appoint the Grand Mufti (highest ranking Islamic authority in the state), as well as imams of mosques. Some governments even limit or specify the topics imams may address on Fridays, when Muslims congregate to pray.

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    37efforts and punished those leaders who stood in their way. Islamic history is littered with stories of the torture or jailing of various highly

    distinguished jurists whose crime was that of refusing to echo the views 38of the political ruler and shroud them with religious legitimacy. This state of affairs continues until this day, a fact which does not bode well

    for freedom of thought or belief in these countries. How can Muslim

    women begin discussing their rights when Muslim men and women

    cannot even speak freely?

    BASIC INTRODUCTION TO ISLAM

    To understand Islamic law, one must start with the basic principles

    of Islam. The primary source of all Islamic law is the Qur‟an. It is supplemented by the hadith. Other important sources are those of ijma’ (consensus) and ijtihad which is based on rules of logic as well as on

    39religious text. It is important to note that Islam has no clergy, nor does 40it have an ecclesiastic structure. Each individual has direct access to

    the Qur‟an and hadith and is in principle entitled to engage in ijtihad, so 41long as she has the requisite knowledge. Thus not only countries but

    also individuals are entitled to their own jurisprudential choices.

    This fundamental right of Muslims to freedom of jurisprudential

    choice and to unmediated access to the Qur‟an and hadith, combined with Islam‟s respect for local custom makes it clear that North American

    Muslims are not bound by the cultural preferences of Muslims in other

    countries nor by their jurisprudential choices. We live in and are part of

    North American cultures that also celebrate diversity. We are free to

    retain from our ethnic heritage these elements that continue to be viable

    and useful in our new society. But we are fully bound by our religious

    beliefs. We cannot be selective among them. We are entitled, however,

    to interpret Divine Will in ways that are best suited for our own

    jurisdiction and era. Of course, such interpretations do not apply to the

    thawabit of Islam, i.e. to matters that are fixed, clear, and fundamental,

    such as the unicity of God.

    The fact that our governments espouse democratic principles and

     37. The most famous example is that of the great jurist Imam Malik who was tortured by the ruler for refusing to mislead Muslims about the fact that coerced consent was not binding upon them. See a reference to this incident and others in al-Wazir, supra n. 30, at 42. Another example is discussed in al-Hibri, Constitutional Law, supra n. 7, at 520-522 (recounting the story of Yazid, one of the Khalifahs who attempted to gain legitimacy by the use of force). 38. See supra n. 33. 39. For a comprehensive study of this topic see Kamali, supra n. 15. 40. See al-Hibri, Constitutional Law, supra, n. 11, at 507-511; al-Hibri, supra, n. 9, at 24-25. For this reason, a Mufti, grand or otherwise, may not bind others by his opinion (fatwa). 41. See supra n. 40.

101] MUSLIM WOMEN’S RIGHTS 109

    do not stifle our freedom of expression facilitates our efforts. North

    American Muslims are free to engage vigorously in the time-honored

    tradition of ijtihad in order to authentically define their own

    jurisprudence. Unlike their brothers and sisters abroad, they do not have

    to be concerned about either political censorship or retribution.

    In the matter of Muslim women‟s rights, North American Muslim

    women are not bound by the patriarchal assumptions of other cultures.

    These assumptions have been rejected for the most part in our societies.

    We are only bound by the Qur‟an, as illuminated by reliable hadith and

    what it says about women and their rights. Furthermore, in discovering

    what the Qur‟an says we are not bound by the patriarchal aspects of

    interpretations offered by earlier jurists. These aspects reveal

    themselves as patriarchal when the jurist incorporates into his logic

    patriarchal assumptions not present in the Qur‟anic verse itself, such as

    the assumption that women are emotional and irrational.42

    In the United States and Canada, many of our Muslim women are

    capable professionals whose mere existence presents a counterexample

    to these patriarchal assumptions. Many Muslim women in other

    countries have made similar gains, but are being hindered in their

    43progress by patriarchal forces in the name of Islam. They are also

    being hindered from rebutting patriarchal claims by an authoritarian

    structure of governance. For example, every Afghani man and woman I

    spoke to during my travels is fully aware that getting an education is the

    duty of each Muslim male and female. Yet, the Taliban forces have

    managed to impose a minimalist interpretation and a patriarchal

    educational policy through sheer force.

    Because of the various obstacles facing Muslim women abroad,

    they tend to be quite supportive of the serious efforts by North American

    Muslim women to rid Islamic law of patriarchal cultural influences. In

    the rest of this article, I shall present my views on Islamic law as it

    relates to various issues of importance to women. These views are all

    based on the Qur‟an itself; they also rely in part on the hadith and on

    traditional juristic sources.

     42. See supra n. 29. 43. The most salient example is the situation in Afghanistan. In the name of Islam, professional Muslim women have been prevented from working outside their homes, and their daughters have been denied an education as good as theirs, a very painful situation to the mothers.

110 JOURNAL OF LAW & RELIGION [Vol. XV

    THE QURANIC VIEW OF WOMEN Basic Equality

    As an American Muslim woman unburdened by patriarchal

    assumptions, I have a distinct advantage over earlier interpreters when I

    study the Qur‟an: I can read it with fresh, liberated eyes. Reading the

    Qur‟an, I discover that it has only one creation story. The Qur‟an states

    repeatedly, for emphasis, that both the male and the female were created

    from the same nafs.44 Consequently, there is no hierarchy, even a

    temporal one, in gender creation. In the Qur‟an, the fall of Adam is not 45blamed on Eve. Rather, both were tempted by Satan and sinned in the 46pursuit of power and eternal life. Furthermore, God forgave humanity 47after the fall. There is no continuing burden of the original sin. Men

    and women are responsible towards God for their own mortal choices.

    They are both judged by the same standards; they also have the same 48rights, duties, and obligations in matters of ibadat (worship). There are

    some differences between them in the realm of mu’amalat (dealings), 49which regulates civil matters. These will be addressed later. In short,

    a Muslim woman is as complete a spiritual being as the male. She is as

    entitled as he is to read and interpret the Qur‟an and to live a full pious

    life.

    Legal and Financial Rights

    In the realm of mu’amalat, the Muslim woman is an independent

    legal entity, not lost through marriage. A Muslim woman retains her

    own name after marriage.50 She also retains her financial 51independence. She can own property in her own right whether she is

     44. See Qur‟an 4:1, 6:98, 7:189. 45. See Qur‟an 7:22 (stating that Satan succeeded in tempting both Adam and Eve to taste the fruit of the tree of eternity and power), 20:120-121 (stating that Satan tempted Adam, so both Adam & Eve ate the fruit of the tree). 46. See supra n. 45. 47. See Qur‟an 20:122. 48. See Zaidan „Abd al-Baqi, Al-Mar’ah Bayn al-Din wa al-Mujtama’ 194-199 (Cairo: n.p., 1977); Ridha, Huquq, supra n. 6, at 5-37; „Abd al-Karim Zaidan, Al-Mufassal fi Ahkam al-Mar’ah wa al-Bayt al-Muslim vol. 4, 173-186, especially 184 (Beirut: Mu‟assasat al-Risalah 1994) (arguing that the rule in Islam is the equality of the two genders but listing and explaining exceptions in the area of mu’amalat, i.e., dealings). 49. See „Abd al-Baqi, supra n. 48, at 196-199; Ridha, Huquq, supra n. 6, at 20-22; Zaidan, supra n. 48, at vol. 4, 184-186. 50. This practice remains common is Saudi Arabia and some Gulf countries, but has become less common is other Muslim countries that are subject to Western influences. 51. See Ridha, Huquq, supra n. 6, at 19-20; Zaidan, supra n. 48, at vol. 4, 291-297, & at vol.

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