Contesting Justice- Women, Islam, Law, and Society

Transcription

1 Middle East Studies Online Journal- ISSN ( 2010) Volume 1 No 2 Contesting Justice- Women, Islam, Law, and Society Adis Duderija, Center for Muslim States and Societies, University of Western Australia. Contesting Justice- Women, Islam, Law, and Society; SUNY Press, 195 pp., by A. Souaiaia; Appendices, Bibliography, Index; $70.00 (hardcover, 2008), ISBN13: ; $20.95 (paperback, 2009), ISBN13: Over the last two decades in particular a significant number of scholarly books and articles have been written by Muslim female and male scholars on the subject of what we could broadly term women emancipation on the basis of novel approaches to Islamic hermeneutics and Islamic legal theory (usul-ul fiqh). The works of scholars such as A.Wadud, H. Baranzagi, Z. Mir-Hosseini, Abou El-Fadl, F. Esack and A. Barlas, to name but a few, come to mind. These works primarily focused on exposing, explaining, contesting and dislodging the male epistemic privilege in the formation and interpretation of religious sciences and tradition seen as the principal culprits for the andocentric, patriarchal and misogynist elements that persist in the understanding and interpretation of the Islamic tradition and its fountainheads, the Qur an and the Sunnah. Moreover these women unfriendly (to put it mildly) dimensions of the Islamic tradition were considered as significantly contributing to the unenviable legal, political and economic status of Muslim women both in the historical and in the contemporary context. The solution advocated by these scholars was primarily restricted to the call for the inclusion of women s voices and opinions in the interpretive processes and the subsequent demands for legal reform based on alternative more women egalitarian or just interpretations of the Islamic tradition. For reasons outlined below A. Souaiaia s book under review is both a continuation of

2 2 and a significant departure from this body of scholarly knowledge. Contesting Justice is in many ways a groundbreaking and pioneering study that links discourses pertaining to the nature, origins, development and the scope of Islamic law and practices with the concept of justice as it relates to the legal and economic status of women with special attention to the Islamic laws of polygamy and inheritance. The book addresses a vast array of important questions such as: What is the nature of Islamic law, its origins and development? What is the nature and meaning of the concept of justice in the Islamic tradition/law? How does this impact upon the legal, political and economic status of women? What is the relationship between Islamic law (defined as the corpus of legal rulings and determinations that are inspired or based on Islamic teachings, p.xii) and explicitly stated legal proofs found in the Qur an? How do we account for the gap between these two if one existed? How do we determine the level of explicitness of legal proofs in the Qur an? Similarly, what is the interplay between practices, legal rules and legal proofs in Islamic law? What is the nature of morality and law in general? What is the place and function of morality and ethics in revealed scriptures? Are there any legal moral absolutes in the Islamic legal system? How do Qur an and Islamic legal philosophies view men and women? Are social justice, fairness and equality going to be achieved on the basis of democratising of religious knowledge and interpretational practices or by developing abstract meanings and scope of these concepts? Similarly, is desired change (such as improving the status of women and other marginalised groups in a society) going to be engendered and vouchsafed in an enduring and effective fashion for each individual though the of creation of strong and vibrant educational and civil society and institutions or through legal reform? Professor Souaiaia tackles these and other questions in a coherent and systematic fashion offering a number of very original findings and recommendations to which I shall turn shortly. The objective behind the book according to the author is to recount the historical, philosophical, and legal contexts that contribute to the negative and positive impact on women (p.10) and Muslim women in particular. To achieve this, the author adopts a multi-layered methodology that is normative, analytical, historical and quantitative (empirical) in character. Let me describe some of the main arguments and findings of this important study.

3 3 Firstly, based on an incisive and comprehensive analysis of the Qur anic discourse prof. Souaiaia convincingly argues that Islamic law is in essence embedded and derives its legal potency from a larger dynamic underlying the nature of the Qur anic discourse in form of emotionally charged iconic/paradigmatic tales (such as the story of Moses, the paragon of law-based religiousity and his mysterious and mystical knowledge endowed companion Khidr) that manifest themselves in the literary and stylistic qualities of the language inherent in the Qur an in which God assumes a position of an absolute Knower and frames the issues of morality, ethics and law at the meta-human level. As a direct consequence of this broader dynamic, argues the author further, an organic relationship between faith, motive and behaviour is established. Here the author intimates that the ethics and morality present in Islamic law via the Qur anic Knower principle directly determines the nature of the concept of justice which, due to the coalescing of morality and ethics and the fusion of religious and the political spheres in the Islamic tradition, permeates through the social, cultural, political and economic spheres of human endeavour, thus motivates, guides and directs all behaviour of Muslims to achieve compliance and law abiding citizenry. This characteristic of the Islamic law Prof. Souaiaia dubs communicative justice because it communicates public morality with a purpose of creating and establishing a socio-moral order at a faith-emotional level. Furthermore, prof. Souaiaia argues that it is imperative that any discussion on improving the status of Muslim women ought to take this broader Qur anic framework of communicative justice (in contrast to just isolated rulings and practices) into account because this concept of communicative justice inspired the pre-modern Islamic legal philosophical discourses (still considered as authoritative by the majority of practicing Muslims) which assign women (as well as men) certain rights, responsibilities and functions both in the public and private spheres some of which, from a contemporary human rights era perspective, can be considered as detrimental to the well-fare and interests of women. In this context the author s study is a response to what he considers to be a moral requirement of scholars of Islam in the contemporary world characterised by the prominence of human rights issues to re-examine the historical causes and legal reasoning for traditional practices which injure women s well-being as consistent with best insights of Islam. (p. 44). The second contribution of the study is that the author successfully accounts for the divergence between what he terms the Qur anic law (defined as the legal rulings that are explicitly stated in the Qur an and which did not require extensive interpretation in their formulation such as

4 4 those on inheritance, p. xii) and the Islamic law (defined as the corpus of legal rulings and determinations that are inspired by or based on Islamic teachings, ibid.) on the basis of the oral-based and accretive nature of the Islamic law whose basis was the legal reasoning and the practice of early Caliphs rather then a close linguistic and syntactical analysis of the legal proofs found in the Qur an or the hadith literature. It is this feature of Islamic law based on the consensus of early Companions, according to the author, which suspends the religious concept of justice and thus does not permit the rethinking and re-examination of practices such as polygyny and inheritance laws because any later consensus, according to traditional usul-ul-fiqh, is unable to overturn that of the early one. Elsewhere, the reviewer has proposed an additional explanation of the origins and the development of Islamic law that in many respects complements that of prof. Souaiaia although it differs in some. Therein the reviewer argued that one way of accounting for apparent discrepancy between explicit Qur ano-sunnahic injunctions and the (early) Islamic law (Caliphs and the first generation of jurists primarily) is on the basis of the way in which the very concepts of Qur an and Sunnah were conceptualised. Namely, I argued that, apart form their practise-based component ( amaliyyah), these concepts were understood by the first two generations of Muslims as essentially : 1. ethico-religious (akhlaqiyyah), discursive, or objective-based (qasd) terms by being linked, for example, to subjective socioculturally relative concepts of justice and righteousness/righteous conduct 2. endorsing a generally objective nature of moral values; 3. were reason inclusive (i.e. permitted reason to function not just exegetically or hermeneutically but also independently of revelation in accordance with i.) and ii.) As such, some explicit Qur ano-sunnahic legal proofs and injunctions were not followed by caliphs/fuqaha on the basis of the above understanding of the nature of the Qur ano-sunnahic teachings. In his other work, prof. Souaiaia himself also acknowledges the fact that values such as fairness and social justice were cited by early jurists as the driving principles behind certain Qur anic injunctions such as in the case of inheritance. As such the gap or a discrepancy between explicit Qur ano-sunnahic legal proofs and injunctions and that of (early) Islamic law that prof.souaiaia has astutely recognised should not be seen as deviations in a

5 5 normative sense by not being directly derived from normative primary source of religious and legal teachings (what prof. Souaiaia describes as being manufactured ). Rather, one could argue instead that these sources lent themselves easily to be interpreted/understood in accordance which principles i.) ; ii.; and iii.) above. One could also argue that legal decisions taken by caliphs and the early jurists (which were later on used as normative legal precedents by subsequent generations as based upon the oral and accretive nature of Islamic law as pointed out by prof. Souaiaia ) were based upon such an understanding of the concepts of Qur an and Sunnah but were grounded in what prof. Souaiaia terms time-specific social construct-dependent concepts of justice and fairness which did not evolve beyond the formative period. As such, I agree with the sentiment expressed by prof. Souaiaia that Muslim scholars are morally obliged to answer the Qur ano-sunnahic appeal for justice and fairness and the protection of weak and marginalised individuals on the basis of a contemporary, human rights era understanding of the concepts of justice and fairness (that ought to be methodologically linked to traditionally authentically Islamic legal theory) and therefore re-examine the traditional Islamic law in its light. Another significant contribution of this study is that the author provides alternative interpretations of the polygamy and inheritance verses which conform to the grammatical and syntactical rules of the Arabic grammar. With respect to the polygamy verses 4:3, he demonstrates that the Qur an in actual fact proscribes polygyny with orphaned women and discourages the practice with non-orphaned women. Similarly in relation to inheritance verses 4:7; 4:11; 4:12 and 4:176 he argues that the Qur anic verses were primarily interested in protecting the interests of female heirs in the presence of other male heirs who otherwise might have appropriated it for themselves and did not necessarily fix the entitlements permanently. Significantly, unlike existing interpretations, prof. Souaiaia considers the inheritance verses in the Qur an in the light of the verses pertaining to polygamy to argue that the traditional understanding of inheritance and polygamy verses as it applies to widowed women in a childless, polygamous marriage (which fixes the inheritance of the widow to one quarter) means that widowed women would have their inheritance portions diminished since they would have to share it with other co-wives. He uses this argument to argue that laws of polygyny must not be seen in isolation to those of inheritance. Another novel aspect of this study is its attempt to empirically test the level of explicitness of Qur anic legal proofs pertaining to inheritance.

6 6 Prof. Souaiaia does so for two reasons. First, he wishes to demonstrate that even very explicit legal proofs can carry significant margins of deviations. Here, it is important to keep in mind that the traditional interpretations of Qur anic legal proofs, especially in the case of inheritance verses, are defended on the basis of their explicitness. After establishing that there are significant divergences in these laws even within the traditional Islamic law (especially but not only between Sunni and Shi a fiqh), the author produces empirical evidence based on a sound methodology to confirm that contemporary interpretations of inheritance verses also significantly diverge from the traditional ones. Secondly, he also establishes, contrary to those scholars of Islamic studies who argue for the inclusion of women s voices in the interpretive process as the most effective way of improving the status of women that even the women interpreters did not interpret the Qur anic verses in a women favourably fashion and actually contributed to the unjust status quo. As an implication of this, he argues that women and men are bound by social and cultural determinants of the meaning and scope of justice and fairness and that it is these which create women discriminatory language and value systems. In contradistinction to the work of scholars mentioned at the very start of this review, prof. Souaiaia considers legal reform, especially if enforced by the nation-state in a the top-down fashion not only as an inefficient and unjust way of engendering change (which would most likely only improve the condition of an elitist section of society be they men or women) but also considers it at times as detrimental to the individual. As such, the author argues that instead of resorting to legal reforms that would, for example, either explicitly proscribe polygyny or permit it, the legal system ought to adopt what he terms a no-legal actions mechanism which leave the door for future legal intervention open. This is so because this mechanism ensures that the legal system can meet the needs and preserve the God given dignity of specific individuals. For example, polygyny could prove to be beneficial to difficult to employ widowed/orphaned women with or without children in a society that does not have a functioning welfare system (characteristic of many Muslim majority countries). Proscribing polygyny legally would be unjust in this case as it would be unjust to allow men unilaterally to enter into polygamous marriages as the traditional Islamic law does. The approach that prof. Souaiaia advocates is that in addition to no-legal action mechanisms the creation of free, strong, and vibrant educational and civil advocacy societies and institutions which frame the issues of justice and fairness on the basis of the human dignity of each individual is the most effective way of improving the status of women and other marginalised

7 7 individuals. Here he adopts a similar view to prof. An- Na im, another Muslim scholar, who has dealt with the issue of status of women from the perspective of the necessity for radical reform of what he terms the historical shari ah (Islamic Law). What distinguishes the work of the two is that prof. Souaiaia s heuristic is more closely aligned with and grounded in the traditional Islamic scholarship pertaining to legal theory (usul-ulfiqh) and is therefore more likely to have more leverage with the traditionally minded Muslims as it would be considered more authentic and faithful to the inherited religious tradition (turath). I will return to this point again below. Now to some criticism. Is the Qur an a patriarchal text/discourse? Or in other words is the Qur anic legal philosophy patriarchal? Prof. Souaiaia is of the view that Qur anic language is patriarchal and seems to be of the view that the answer to both of the questions is yes. He dismisses the attempts of scholars such as A. Barlas who have advocated the opposite view as being based on a faulty methodology (p.174, footnote 81). One way of examining this question is to ask whether the Qur an is inherently patriarchal or does it merely condone patriarchy as it assumes that its direct recipients operate within a patriarchal context and addresses them from within this given context? For a definition of inherently patriarchal we could take recourse to prof. Abu Zayd s heuristic according to which for something to be truly Qur anic it would need to be initiated rather then mirrored by the Qur an itself. As I argued elsewhere it is beyond doubt that the Qur anic discourse/text in relation to its socio-legal dimension (but not ontological) patriarchal because it was revealed in and operated within a patriarchal society. That much is evident from its texts as the author rightly asserts. Prof. Souaiaia also points out correctly that it is the nature of the Qur nic discourse as a whole to address the elite and the powerful to be mindful and protective of the marginalised (such as women and children). Based on the analysis of the Qur anic text (especially early Meccan revelations) it is fairly clearly evident that Qur an recognised (but did not insist) that it is the powerful people in Mecca, the patriarchs of various tribes who held the socio-political and economic power, who needed to be persuaded and won over to the new faith for it to take hold. The question of patriarchy could then be seen in this broader characteristic of the nature of the Qur anic discourse. The Qur an, however, did not initiate patriarchy and therefore, if we accept prof. Abu Zayd s approach would not be rendered patriarchal.

8 8 Another way of approaching the question of potential patriarchal nature of the Qur an is on the basis of analysing patriarchal Qur anic language and any eventual legal proofs they might entail in relation pre-existing conditions in its revelational milieu. A number of scholars such as El-Fadl and Abu Zayd have convincingly argued that, in accordance the above mentioned Qur anic principle of preaching to the powerful to be mindful of their obligations to the weak and the marginalised, the Qur an had a mitigating effect and initiated social, economic, political and legal incremental improvement of this section of the society. For example, it is evident that the Qur anic verses pertaining to marriage and divorce were performing the function of protecting women from the power of men they already possessed by the virtue of the customs and practices of the society in which Islam was revealed. Elsewhere, this reviewer argued that, based on this, we could extract a moral trajectory of the Qur an others have called it a spirit or élan or objective (qasd)- towards which the Qur an was pointing, that being a just and fair society in which men and women were free and equal in all respects pertaining to the mundane world. Based on this approach we could also argue that Qur an is not inherently patriarchal. Another point of criticism I would like to level at the author is in relation to question of the nature of the value in the Qur anic discourse/text and its ethico-legal philosophy. Do they subscribe to the notion of the ethical relativism or objectivism? Prof. Souaia, based on the discussion of the function of Qur anic iconic/paradigmatic tales and the related principles of God as a Knower and communicative justice considered above leave the reader under the impression that the Qur an and its ethicolegal philosophy is postulated upon ethical relativism. Admittedly, he does not directly address this issue (although in my view the question should have been explored in depth given the nature of the study and its main arguments). Classical Islamic theology and jurisprudence/ethics consider that indeed the Qur an and its ethico-legal philosophy advocates ethical relativism. However, Mutazilite thought and that of some contemporary scholars such as El-Fadl and A. Emon are leaning towards the other view which can pave way to the development of natural theology. El-Fadl, for example, argues that based upon the analysis of how words such as such as al-munkar (commonly known to be immoral/wicked and al-ma ruf (commonly known to be good/wholesome) are employed in the Qur an one could argue that the Qur an advocates an objective nature of values. Prof. Akhtar espouses the same view but based on more philosophical reasoning inspired by a comprehensive analysis of the Qur anic Weltanschauung with the aid of critical reason. As prof. Akhtar has

9 9 convincingly argued those aspects of the Qur an which are suggestive of ethical relativism should be seen in the broader context of God s emphasis on His utter sovereignty and agency as a response to its interlocutors who emphasised their own agency at the expense of that of God. The reviewer needs to also criticise the author s excessive reliance on and exaggerated legal theory importance conferred to broader guiding principles that furnished the legal and ethical justifications (p.47) in the fields of jurisprudence and ethics (such as la darar wa la dirar, almaslaha al-mursalah, daf al-haraj, tahqiq al- adalah) as developed by legal theorist (usuliyyun) such as al-tusi, al-ghazali or al-shatibi in order to demonstrate that his methodology is grounded in traditional methodology. Prof. Souaiaia is well aware of the importance of methodological and epistemological authenticity (asala) in relation to potential acceptance of newly formulated ideas may they be legal and ethical, exegetical or hermeneutical, especially by the traditionally minded religious clergy ( ulama) and individuals. As much as the reviewer is sympathetic to this approach it is questionable that these mechanisms have had much influence and leverage in classical legal theory (usul-ul fiqh) and as such can be used as effective traditionally authentic arguments for reform of the traditional Islamic episteme. In this context let me quote the view of a renowned contemporary legal theorist, prof. H. Kamali: Another aspect of the conventional methodology of usul, which merits attention, is its emphasis on literalism and certain neglect, in some instances at least, of the basic objective and the rationale of the law. The early formulations of usul have not significantly addressed this issue and it was not until al- Shatibi (d.790 AH) who developed his major theme on the objectives and the philosophy of Shari ah (maqasid al-shari ah). Al- Shatibi s contribution came, however, too late to make a visible impact on the basic scheme and methodology of usul. Moving away from issues of Islamic law and legal theory my final points of criticism pertain to prof. Souaiaia s recommendation that most effective way of improving the status of women is through setting up of civil advocacy and educational institutions which guide and encourage critical thinking and unhindered access to learning (for both men and women) not only empower women to speak against injustice but also prepare men to accept new ideas and novel interpretations of society s traditional heritage, ensure that contestation of discriminatory social norms and practices are not conducted in the name of sexism and ethnicism, but in the name of justice and fairness [In] order to create a paradigm of political and social power that is responsive to the universal demands.

10 10 in favour of absolute respect for human dignity. (p ). Again while the reviewer is extremely sympathetic and shares this view one regrets that there remain a number of unanswered questions. For example, on what philosophical basis are these civil advocacy groups or educational institutions going to be set up in order to function in accordance with the criteria outlined by prof. Souaiaia? None of the largest grass roots social and civil advocacy groups cum political parties in the Muslim world that are based on a traditional religious worldview such as HAMAS, Hizbul llah (or the Egyptian Ikhwan) have adopted a paradigm that is responsive to the universal demands in favour of absolute respect for human dignity. One could also argue that the status of women under HAMAS, in the Gaza Strip has actually markedly worsened. Nontraditional religious based social and civil advocacy groups on the other hand face what have proven to be insurmountable questions of religious legitimacy and authenticity if they attempted to bring about the objectives set out by prof. Souaiaia. Also how useful is to frame desired social and cultural change in the Muslim world in terms of universal demands of the human rights era grounded in the concept of individual dignity. Isn t the concept of human dignity just as contested as that of justice as prof. Souaiaia has aptly demonstrated? Traditional Islamic Weltanschauung, that is still well and truly alive in the minds of many a Muslim, considered it perfectly dignified to live in a society whose laws discriminated on the basis of class and social status, gender, religious affiliation and age. Another question worth posing is just how are civil advocacy groups and educational institutions develop traditionally authentic discourses that can operate in accordance to criteria developed by prof. Souaiaia to achieve the improvement of women, the desideratum of social and cultural change? Who is going to head and lead these institutions? The only answer this reviewer can offer is that this can be achieved through curriculum reform in traditional religious institutions and other places of learning and through the leadership of critical Muslim scholar activists, such as prof. Souaiaia, who would need to assume both academic and social activist roles. The criticism notwithstanding prof. Souaiaia s book is an extremely important study and a major contribution to the literature of Islamic law, legal theory, Islamic hermeneutics, as well as politics, women and gender studies and is recommended highly to all those interested in these disciplines.

11 11 *Adis Duderija, Centre for Muslim States and Societies, University of Western Australia. Prof. Souaiaia discusses this characteristic of Islamic law in more detail in his: The Function of Orality in Islamic Law and Practices: Verbalizing Meaning, On this point the author echoes the views of scholars such as Sh. Jackson, W. Hallaq and E. Moosa. See footnote 1. Traditionally and still widely accepted and authoritative interpretations proscribed the practice of marrying of orphaned women in general (clearly disadvantaging them in cases where polygyny was a better option for them) and permitted the marrying of up to four non-orphaned women as a solely men s prerogative. According to traditional Islamic law the more explicit the legal proofs the less the reliance on human opinion is needed and thus the more strict is its application. At the philological level, this is evident in the Qur anic injunctions which are exclusively directed at men in matters pertaining to divorce and marriage. For example, Qur an (65: 2) instructs men: keep or stay with their wives in dignity or you divorce them in kindness and dignity. Qur an (2:230) stipulates that if a man divorces a woman irrevocably, a man cannot remarry her until she is married to another. Similarly Qur an 65:1 instructs the Prophet that if the men divorce their women they should allow women to reside in their marital home during their idda (waiting period). Again, in 33:49 the male believers are told that if they married believing women and then divorced them before touching them, they do not need to count the idda. Similarly, in 2:236 men (second person plural) are, in case of divorcing women before consummating marriage, told to bestow gifts upon them. A. Barlas, Believing Women in Islam-Unreading Patriarchal Interpretations of the Qur an. University of Texas Press, Austin,2002. H. N. Abu Zayd, in The Nexus of Theory and Practice, in M. Kamvara (ed.), The New Voices of Islam-Rethinking Politics and Modernity, A Reader, University of California Press, Berkley and Los Angeles, 2006, pp

12 12 That the Qur an neither reflects nor advocates patriarchy at an ontological/metaphysical level is clearly evident from numerous Qur anic verses and was demonstrated systematically by A. Barlas. See footnote 7. see footnote 6. A. Duderija, The importance of recognising textual assumptions in the Qur anic text in the development of a Qur anic hermeneutic and Islamic legal theory, unpublished article under review. G. H. Hourani s Ethical Pre-suppositions of the Qur an, Muslim World, 70 (Jan. 1980) pp Kh. Abou El-Fadl, The Place of Ethical Obligations in Islamic Law, Journal of Islamic and Near Eastern Law, 4, 1, Sh. Akhtar, The Qur an and the Secular Mind, Routledge, M. H. Kamali, Methodological Issues in Islamic Jurisprudence, Arab Law Quarterly, Volume 11, Number 1, 1996, pp. 3-33, p.5 L. Welchman, Honour and Violence Against Women in a Modern Shar i Discourse. Hawwa, Vol. 5, No (2007), pp

13 13 The articles do not express necessarily the opinion of the Journal. THE MIDDLE EAST STUDIES ONLINE JOURNAL