Shariah, Fiqh
and Women’s Rights – Part 7
By Professor Nazeer
Ahmed
CA
Amina Wadud recently caused
a global stir by leading a mixed gathering of
men and women in prayer. I heard speeches as far
away as a village near Bangalore denouncing this
event, and one in Dallas, TX by Professor Ali
Mazrui supporting it.
Neither the event nor the responses deserve much
attention. This was a non-event. Were it not for
the attention of international media, it would
have passed without much ado. As far as this writer
is aware, a woman leading a mixed gathering of
men and women is not sanctioned by historical
precedents, social customs (a’dat), or religious
edicts in any of the schools of fiqh. There are
far more basic and fundamental issues facing the
position of women in modern Islam than that of
a woman leading a mixed gathering in prayer. It
is like arguing about where to put a traffic light
at an intersection when there are no roads leading
up to the intersection.
There are perhaps more articles written, and more
sermons given about women’s rights in Islam
than perhaps any other subject. And there is no
other issue that is used by the detractors of
Islam to whip up a dislike for this religion.
Islam provides an exalted position for women.
She is the spiritual co-equal of man and a partner
in their common spiritual destiny. Men and women
are described in the Qur’an as “garments”
of each other, meaning that each is the honor,
the embellishment and the beauty of the other.
They are intertwined, like two bundles of light,
complementing each other, and like an endless
spiral, elevate the spiritual station of one with
respect to the other.
But alas! This nobility is not reflected in the
world of man. In many parts of the Islamic world,
women are denied even their most fundamental human
rights. There are entire regions where women cannot
get a meaningful education, look for honorable
work, drive a car, venture out of their homes
without an escort or vote in a democratic election.
Illiteracy is rampant. Health care is abysmal,
and childcare non-existent. Protection from the
legal systems is at the mercy of local customs.
Women are beaten, subjected to “honor killings”
and are abused for reasons that are unquestioned
and unreported. Such human rights violations do
not just happen “over there”; there
are cases of abuse right here in the United States.
In this article, we examine briefly the position
of women’s rights from a spiritual perspective
and offer some insights on how they may be implemented
in the modern global context.
We take as our point of departure the positions
taken by two of the intellectual giants of the
twentieth century. The Turkish poet Zia and Mohammed
Iqbal of Pakistan reiterated the primacy of spirit
over the physical and emphasized the construction
of a spiritual democracy requiring inputs from
all Muslims, not just from a few muftis. In other
words, they argued for opening up the process
of Ijtihad to all people, the ruler and the ruled,
the prince and the pauper, the trader and the
civil servant, the alim and the unlettered. Men
and women, brothers and sisters, sons and daughters,
mothers and fathers, grandmothers and grandfathers
must all be participants in the process of applying
the Shariah to social issues.
There are two separate elements in this position.
One, the formulation and promulgation of legislative
edicts is not just the privilege of a mufti; it
is the privilege of all Muslims. Secondly, this
process is as much open to women as it is to men.
A legislative body, reflecting the will of women
and men, would be fully responsive to the rights
and responsibilities of both.
There are historical precedents for supporting
both individual and collective ijtihad. During
the Caliphate of Omar ibn al Khattab (r), it was
Ali (r) who was often called upon to give legal
opinions. Even Emir Muawiya, while he was locked
in mortal combat with Ali (r), sought the latter’s
advice on legal matters. The edicts of Ali (r)
provided a foundation for much of Maliki fiqh
in later years. The principles of Istehsan (creative
juridical opinion based on sound principles) and
Qiyas (deduction by analogy by a learned scholar)
are allowed in some of the Sunnah schools.
On the other hand, all four of the Sunnah schools
of fiqh use the ijma (collective opinion) of the
Companions for their legal standings. The establishment
of the Caliphate, the election of Abu Bakr (r)
and later of Othman (r) offer concrete historical
examples of collective ijma.
Women have had a profound impact of the development
of fiqh from the very inception of Islam. The
blessed ladies of the Prophet’s household
were a source of a large number of traditions.
Both Aisha (r) and Fatima (r) are a source of
many ahadith which form the basis for fiqh.
Thus history supports both individual as well
as collective ijtihad. In modern times, with the
complexities of a global civilization, it is difficult
for a single individual to grasp the interrelationships
and subtleties of economic, technological, social,
political and ethical implications of an issue.
Collective ijtihad of a legislative body offers
a more comprehensive methodology for tackling
the issues of modern life. In such a legislative
body, women must have as much of a say as men,
as voters, participants, discussants and decision
makers. Full and complete legislative empowerment
of women is a first step in the full realization
of spiritual democracy in Islam.
Once a legal position is taken, and a law is enacted
by a legislative body, can it be implemented by
a woman, acting as a judge? Historical precedence
provides an answer in the affirmative. In the
year 1236 CE, at the height of the Mongol onslaught,
Razia Sultana ruled a vast empire extending across
North India, Pakistan and Afghanistan. Upon the
death of her father Al Tumash, she wrote to the
Abbasid Caliph Al Mustansir in Baghdad for permission
to rule in his name. The permission was granted
and Razia made the following proclamation in Delhi:
“In the time of Imam al Mustansir, Ameer
ul Momineen, Malika al Tumash, daughter of Sultan
al Tumash, she who increases the glory of Ameer
ul Momineen……”. She ruled as
the executive and legislative head of the empire
(with the advice of a Chief Kazi) for four years
until the jealousy of men caught up with her and
she was dethroned and slain (1240 CE). Similarly,
Shajarat ul Durr ruled as the queen of Egypt from
1251 to 1252 CE. In the seventeenth century, a
succession of six queens ruled Acheh in Indonesia.
Both history and custom support the position that
a woman can act as a judge and as a head of state.
This has been reaffirmed in modern times with
the election of women to the highest executive
positions in countries as diverse as Indonesia,
Pakistan and Turkey. The Arab world is behind
on this score, as it has been for centuries. The
world traveler Ibn Batuta who toured much of Asia,
Africa and Europe during the years 1332-1351 CE
records how women enjoyed considerably greater
freedoms in non-Arab Anatolia (Turkey), India
and sub-Saharan Africa, even in the fourteenth
century. There are historical reasons for these
differences between the Arab and non-Arab components
of the Islamic world. These I have covered in
my books Islam in Global History (Amazon.com).
The Shariah, as implemented in the dynamics of
human matrix, requires that the legislative, executive
and judiciary space be completely open to women,
as much as it is to men. Only when a woman takes
responsibility for legislation that affects her,
and for its implementation and execution, can
she attain fully the exalted spiritual potential
that divine compassion has bestowed upon her.
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