The Sharing Group Discussion: Women's Rights in Shari'ah & Secular Law

بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ

The following was posted by Sister Nico Le, on The Sharing Group, on the 17th December 2014: “It is often said that Islam has elevated the status of women.  I whole heartedly disagree.  I believe Islam, and Muslims, degrades modern western women to brainless bodies with the only purpose of reproducing and pleasing their ‘owners’: husbands, fathers, and brothers.  So how does Islam elevate women?  Compared to the secular laws of modern western countries, what advantages do Muslim women have?  What rights does the shari’ah grant a woman she does not already have due to being a citizen?”

Brother Fahim Ferdous Promi: I think the idea of the Islam elevating women comes from the historical view of women in the Arab world during the time of Islam’s advent at the time of Prophet Muhammad’s (s.a.w.) prophecy.  Since then, the Western world has granted rights to women which the shari’ah had provided beforehand but failed to uphold in practicality such as giving the women the right to vote and be recognised as individual persons.

Brother Terence Helikaon Nunis: That is an excellent point, sister.  It is often said like a mantra that Islam elevates women, and yet the reality amongst the Muslims is contrary to that.  Perhaps a better way of understanding this would be looking at it in context.  What does the shari’ah actually say?  It says that women have the right to vote, to own property, to choose their partners in marriage, to seek divorce, to inherit property, to be modest, to have rights over their body, to be leaders and to be honoured.  All this was in a time where in most societies, women were ornaments.  This is a fact.

Now, the reality of Muslims now.  Women have been reduced to the hijab, and as objects.  They are denied their position in the mosques, they are denied the right to self-determination, they are denied the rights that the shari’ah gave them in terms of choosing their means of livelihood, the ownership of their property, the choice of their scholarship and teachers, the right to education, the right to lead, the right to protection of their honour and their right to dignity.  When many people say that heaven lies at the feet of the mothers, they lie because they do not even treat their mothers and their wives and their womenfolk well.  The Muslim world has the highest incidences of sexual assault, domestic abuse and general violence against women.  This was not always the case, but it is so now.

I believe that the religion is transformative, progressive and moderate.  There is no need for these appellations because that is what Islam is when we strip away the culture of ignorance and entitlement.  But the Islam we encounter has baggage, the parasites of generations of inertia, gathering the moss of jahiliyyah.  If we converted to that Islam, then it is true.  But did we?  Islam is us. We make it the reality.  If we behave as if it is moderate, then it is.  If we behave as if it is progressive, then it is.  Islam is the people.  And we surround ourselves with those who bring darkness, we will always be shadowed by this.  And if we surround ourselves by those who are enlightened, we will always be so.

The question we must ask ourselves then is what do we believe Islam to be?  And what will we do to make that a reality?  How much will we fight for what we believe in?  That is our jihad.  That is our legacy.  We might succeed, we might fail.  But we will be Rewarded.  There will be generations after us who will curse us or sanctify our names.  If you believe that women should have rights, then make it so.  And because you are who you are, they will say it is Islam.

I have 36 articles on women. I am not going to flood the thread with them detailing the rights of women, but I will share few.  There is this: A Muslim Convert Once More: The Honour of Women.

“The Prophet to whose speech the world was enslaved,
Used to say, ‘Speak to me, O ‘Aishah!’
The Prophet said that women dominate men of intellect,
And Possessors of Heart,
And ignorant men dominate women,
For they are shackled by the ferocity of animals.
They have no kindness, gentleness, or love,
Since animality dominates their nature.
Love and kindness are human attributes,
Anger and sensuality belong to the animals.
She is not your ‘Sweetheart’ - she is the Radiance of God.”

Mawlana Jalal ad-Din ar-Rumi (q.s.)

Sister Sabine: Sister Becky, that video is almost an hour long.  Maybe you could tell in your own words which points it makes that you think are significant in relation to Sister Nicole's question?  From what I have read by Yasmine Mogahed so far, I cannot relate to her vision of femininity.  And I strongly disagree with her argument that women who are demanding their rights ‘want to be like men’.

Brother Terence Helikaon Nunis: This story encapsulates the maqam of a woman, specifically Fathimah az-Zaharah (r.a.).  It is from the Sufi tradition, but I am sure our Shi’a brothers and sisters especially will love it: A Muslim Convert Once More: The Dowry of Fathimah az-Zahrah (r.a.).

This is by our shaykha, Shakha Camille Helminski, the wife of Shaykh Kabir Helminski: A Muslim Convert Once More: Women & Sufism.

Some of our greatest saint, the most elevated of the believers were women: A Muslim Convert Once More: Some Women Saints in Brief.

This is how much our great saints loved our women, even the prostitutes and the so-called immoral.  Can even women say the same?: A Muslim Convert Once More: The Greatest Act of Shaykh Badr ad-Din al-Hasani (q.s.).

Our Shaykh al-Akbar, Imam Muhyi’ ad-Din ibn al-‘Arabi (q.s.) on women: A Muslim Convert Once More: Muhyi’ ad-Din ibn ‘Arabi (q.s.) on Women.

Sister Nico Le: Sister Becky Hijabi: An interesting video.  I know I watched it once about 2 years ago, but I cannot remember much from it.  I do not agree with her view on women.  I know that in one lecture, she defended the husband’s right to ‘beat’ his wife.

Brother Fahim Ferdous Promi, yes, historically, I would agree.  However does it still do that today?  Or a better question: what gives women more rights the shari’ah or the secular law of a modern state?

Brother Terence Helikaon Nunis, yes, I agree the Muslims are a problem in their own right.  Thank you for all your links.  I think I have read them all but one article already.

I think my biggest objection is to the idea that men and women are fundamentally different.  I am not very good when it comes to understanding humans but it simply never occurred to me that men and women are different except, of course, for some physiological differences.

Brother Terence Helikaon Nunis: Men and women are biologically different.  That is nature. What they make of their lives; that is nurture.  By the way, I am not a fan of Yasmin Mogahed.  And I totally disagree with many of the things she has to say about women’s rights.  I feel that she is an enabler of discrimination, justifying the man’s ‘right’ to beat his wife, to control her movement and to be an unequal partner in a marriage.  She has taken her culture and made it Islam.  It is her Islam.  It is not my Islam.

Sister Cait Clarke: The rights given in the Qur’an have been taken away by the clinging to and returning to old pre-Islamic cultural traditions.  In the book, ‘The Muslim Next Door’, Sumbul Ali Karamali recounts her frustration at lessons in fiqh classes where teachers would teach the Qur’an, and then wipe it all away with multiple ahadits as if ‘God did not mean that’.  I have often felt the same way.  It is frustrating and even anger producing when the Qur’an is clearly in contradiction to practice.  The Qur’an should be the primary source, the ideal, what we strive to practice.  It is a document of peace, equality, restraint and justice.  Human beings, however, often have their own agendas.

Sister Sabine: As extracted from Rethinking Islam: Can Muslim Women be Sexist?, if I had to sum up Mogahed’s message to women about gender relations, I would put it this way: “You are fundamentally different from men, and therefore you should be satisfied with the lot that men and God have Apportioned for you.  Focus on the things that distinguish you as a woman, like motherhood, and stop hankering after what has been set aside for men.  Just think: if you were really satisfied with yourself as a Muslim woman — and by extension with the social fate that male Muslim scholars, ‘God’, prescribed for you — you would not ‘degrade’ yourself by obsessing over men’s rights.  Do you not value your womanhood?”

As extracted from Sober Second Look: Sexism, Transphobia, & Muslim Women: “Mogahed is the sort of woman that my ex and his ethic community approved of: a professional who is educated and has a ‘good job’ but still wears hijab, represents ‘the community’, the conservative ‘malestream views’ of what Islam is, articulately, and most importantly, still knows her place as a female.  And even more importantly, teaches other women to know their place too.

I remember when I looked at women like her as a ‘liberating’ model, at least sort of.  Partly because the idea of a woman having a career and speaking publicly was ‘too liberal’ in some conservative Muslim circles that I was involved in.  Partly because she seemed to have found a way to balance all the contradictory demands that were placed on us.

It is when these ‘exemplary’ conservative Muslim women make comments like this that, well, the mask slips.  In the sense that then one gets a glimpse of the sorts of ideas and assumptions that undergird the ‘separate but equal’ approach to gender roles.  That supposed ‘equality’, or ‘equity’, as some would insist, is not really equal or equitable; it is based on denigrating and very confining presumptions about what it is to be female.”

Brother Terence Helikaon Nunis: When my wife decided to remove her hijab, and that was her choice, it was the women who were the most judgemental, aggressive and emotional about it.  They treated her as if she had renounced the religion. And because of these women with their precious self-serving piety, she almost did.  I even had a call from some new convert, someone who did not even know how to read the Qur’an, who barely knew how to pray, wanting to lecture me on how I will go to Hell for not forcing my wife to ‘cover her nakedness’.  In issues relating to women, the women can be worse than men.

Sister Sabine: I listened to some parts of the video but found it pretty irritating.  Silly stereotyping and nonsensical statements: “Young girls have the ability to grow up and be ladies on their own.  Boys, they have to be taught what it means to be a man.”

Brother Fahim Ferdous Promi: Yes, I was not taught so I turned into a giraffe.

Sister Khadijah Alban: My assumption, Sister Nico Le, is your question relates to the treatment of Muslim men towards their women being their wives, mothers, sisters, daughters and so on.  Shari’ah law has not only given Muslim women many of their rights but has also raised the position of women from the time of our Beloved Prophet (s.a.w.) until the hour and shari’ah law will never change, like man made laws do over and over.  But sadly, if many Muslims do not follow the laws of Allah (s.w.t.), then we cannot blame Islam the religion of truth.  My rights as a muslimah are not only my rights they are also my choice: vote, inherit, marry, divorce and other.  When a woman marries it is up to her if she wishes to clean her marital home or not or raise her children or not, she can request a maid and nanny or anything else prior to the marriage this depends on both the husband and wife upon their agreement before the marriage contract.

Sister Sabine: Sister Khadija, I feel you are just repeating the sort of argument that Nico Le’s question was addressing: “Compared to the secular laws of modern western countries, which advantages do Muslim women have?  What rights does the shari’ah grant a woman that she does not already have due to being a citizen?”  How would you reply to this?

Sister Khadijah Alban: It is funny because this question is irrelevant being that shari’ah law existed way before the laws of the modern western countries you talk about.  Most man-made laws are established from many religious beliefs, Subhanallah.

Brother James Harris: If man-made laws are established from religious beliefs, so you are saying then that the laws of modern Western countries are not, in fact, ‘man made’ then.

Sister Khadijah Alban: I did say most, Brother James Harris, meaning not all, Subhanallah.

Brother James Harris: Where is the shari’ah law you refer to being implemented?

Sister Khadijah Alban: I live in Australia and we have a system for child support which in Islam would be nafaqah, the taxation department which would be bayt az-zakat, centre link which would be bayt asw-swadaqah and so on.  Subhanallah, these laws that exist in Australia are shari’ah law in reality.

Brother Abdul-Halim Vazquez: Something that is deeply problematic when the topic of comparing ‘Islam’ and ‘the West’ is that both terms are assumed to be a fixed reality which corresponds to the current status quo, when, in reality, both are a complex sequence of moving targets which have shifted over the years.  And for much of our mutual history, the Muslims actually, were more advanced than the West in many regards.  For example, even if you want to look at this past century, women in Turkey had the right to vote and stand for election before women in France.  And Pakistani women had the right to vote and run for office election several decades before women in Switzerland.  And a lot of time, when people in ‘the West’ say Islam taking people back to ‘the 7th century’, we are talking about phenomena which existed in ‘the West’ only a few decades ago.

Brother James Harris: What does the right to vote have to do with shari’ah law?  People did not vote for the Caliph in general elections.  That is, in fact, a Western concept.  The issue of women voting in elections in Turkey and Pakistan is not an issue of shari’ah.

Sister Nico Le: I am not talking about history.  I agree that historically, shari’ah was a good thing for women.  Let us use Swiss law of 2014 here, or British, if anyone prefers that, and compare it to shari’ah.  Under which system would you all rather live?  Which law is better for women?  Is there any right shari’ah grants a woman that the Swiss law in 2014 does not grant her?

Brother Abdul-Halim Vazquez: I suppose I reframed the issue in terms of the status of women in the Muslim world.

Brother James Harris: The answer to that question requires a concrete example, Sister Nico Le, not a theoretical one.  The only countries claiming to implement shari’ah law nowadays are places like Saudi Arabia and Afghanistan.  If we go by those examples, then ‘shari’ah’ does not look too good in terms of women’s rights; certainly not in comparison with Switzerland.

Sister Sabine: Sister Khadijah, why do you think the question is irrelevant?  If apologists claim that Muslim women are supposedly enjoying rights that are superior to the rights, they are enjoying under secular law, then that begs the question whether this is really true.  Sister Nico Le has been addressing an argument which she feels is not really sincere, and I tend to agree with her.

Sister Nico Le: With shari’ah, I mean the laws that are derived from the Qur’an and sunnah.

Sister Sabine: Shari’ah law is man-made too.  And it is neither static nor consistent.

Sister Jonae Cope: In an ideal, perfect Islamic country, which exists nowhere, women would be given every right commanded and responsibility in the Qur’an and in the practice of our beloved Prophet (s.a.w.).  That said, there is no perfect form of shari’ah law practiced by anyone, in any country.  We humans do our best to understand and implement Islam into our lives.  Due to this, many people have decided that practices of the ignorant days are better than the practices of our Prophet (s.a.w.).  It is a common misconception that men have more rights over women, when really they have more legal responsibilities towards them and women have more rights over them (in marriage).  It takes a lot of will power and self talk to understand the Muslims are not perfect, but there is a perfection in Islam.  I hope this helps.  If you want me to clarify anything, let me know.

Sister Nico Le: I wrote this very quickly now.  Now, anyone if you claim Islam elevates the status of women, give me something to add here where it says yes for shari’ah and no for Swiss law.

Sister Jonae Cope: Here is the thing, Western law will end, but Allah’s Law will not.  In order to understand the laws, we have to understand context, biological differences, lives of our Prophet (s.a.w.) and his family, and once that happens, one can see that most modern Muslims have no idea what it means to honour women.

Brother Terence Helikaon Nunis: If I may, Sister Nico Le, we will address them individually.

Women do get half the inheritance of men.  But what the men get is for the family, and what she gets is hers and hers alone.  In that sense, it is almost guaranteed that she gets more.  Her husband has no say in her wealth: A Muslim Convert Once More: Do Women Take Unequal Shares of Inheritance?

Brother James Harris: Let us be honest, for many Muslims nowadays, ‘shari’ah law’ goes little further than implementing a ban on alcohol, implementing hudud punishments, and renaming existing state institutions with Arabic terms.

Brother Terence Helikaon Nunis: Women have the right to vote.  And women have the right to lead.  The leaders of many Muslims countries, past and present, are women.  There is no stipulation in shari’ah against that.  Some scholars even believed that we had female prophets: A Muslim Convert Once More: The Possibility of Female Prophets.

Brother Abdul-Halim Vazquez: I am not sure about what the purpose of a comparison is.  I suspect you are comparing apples and oranges.  If you look at the past 1,400 years of Swiss legal tradition, I am sure you can find lots of misogynist principles which were pretty deeply enshrined up until recently due to feminism.  And if you look at Islam, I think there are certainly recent voices who find valid ways to think about certain issues you are mentioning but mitigated by Islamic concerns for justice and compassion.

Sister Jonae Cope: There is no compulsion in any aspect of religion, including hijab, each aspect of worship is a personal choice with consequences that are between you and God.  The only difference are those which hurt other people.  Marital rape is not allowed.  Women have control over their bodies and what happens to it.  There is a law that women have to be available to their husbands but they cannot rape them.  Harming someone in that way goes against the very heart of Islam.  Equality in marriage is what you make of it.  I know marriages that are to earner households that work just fine, and others are traditional in the sense that the man goes out to work and the woman stays home, by choice, to take care of kids.  Islam is not monolithic.

Brother Terence Helikaon Nunis: Women have the right to choose their partners.  And they have the right to end a marriage.  Whilst they may not pronounce the thalaq, they may get the shari’ah court to do so on their behalf.  In cases where that is not possible due to a lack of quality of the shari’ah court, they may petition the authorities to appoint someone as the hakam to pronounce on their behalf.  We can actually discuss this separately: A Muslim Convert Once More: The Young Bride.

Shari’ah also recognises women as reliable witnesses in Islam.  Muslims who do not are actually engaged in misogyny: A Muslim Convert Once More: Do Women Make Reliable Witnesses in Islam?

Brother Abdul-Halim Vazquez: For instance, here is Ustadz Suhaib Webb on the issue of marital rape: Question Regarding Marital Rape.

Brother Terence Helikaon Nunis: Whilst legally, we do not call it marital rape, we still recognise it in Islam, and it is haram: A Muslim Convert Once More: Does Marital Rape Exist in Islam?

And despite what the pro-Wahhabi brigade will have you believe, Islam does not condone domestic abuse: A Muslim Convert Once More: A Look at the Meaning of ‘Dharaba’ in the Qur'an.

Islam also, does not condone, and absolutely censures child marriages.  Again, despite what the dirty old men who claim religion say: A Muslim Convert Once More: Marriage of Minors in Islam.

Brother Abdul-Halim Vazquez: On the other hand, marital rape was not a crime in Switzerland until 1992 and was not a state offense until 2004.

Sister Nico Le: Let me give my opinion on some of the issues.

Inheritance: This idea of the men getting more because he has to take care of the women in the house made sense in the past but not anymore.  In Switzerland, if the husband dies, and the wife never worked before, she will get assistance from the state.  You get support if you have young children.  There is no need for her son to protect her.  And more importantly, women can earn their own income.   99% of all the women here have worked in one way or another and they are able to earn the family income.  This whole idea of the men earning the income just helps to put women down.  They are seen as incapable of taking care of themselves. 

Divorce: Why can the husband pronounce a divorce and the wife cannot?  It is simply unfair.  Again, it tells her, ‘No love, don't use your pretty little head; you need a man (judge) to decide for you.”

Brother Terence Helikaon Nunis: There are many opinions about the hijab.  I recommend Dr. Fatima Mernissi’s works specific to that subject alone.  Many Muslims consider her controversial, but I think she has a good point.  The hijab itself is not mentioned in the Qur’an, but dressing modestly is: A Muslim Convert Once More: What is the Hijab?

Brother Abdul-Halim Vazquez: It started becoming illegal in other Western countries during a similar period.

Sister Nico Le: Brother Abdul-Halim Vazquez, I am not discussing history here.  I know Swiss law takes forever to change.  I am talking about 2014 and, yes, even in 2014, our laws are far from perfect.

Brother Abdul-Halim Vazquez: In 2014, what reference are you going to use for what ‘the shari’ah’ says.  For example, if you look to Ustadz Suhaib Webb, he says marital rape is haram.

Sister Jonae Cope: In Islam, women can earn money, but they do not have to.  It is not one of their responsibilities.  If she does, her money is hers and the husband cannot demand any of it from her.  As for inheritance, this is a simple case of who has more responsibilities.  In Islam, it is the man.  It has nothing to do with men being more important.  After a divorce, the husband, at least in Ja’fari fiqh, is required to maintain her for 3 months during the waiting period, and this is for several reasons including getting her on her feet if she does not have a job or decides to move back home.  The ideal Islamic state is not going to just let her fend for herself if she needs help.  As for divorce, women can put it in their contract to act in place of their husband in the situation of divorce.  This gives them the right to divorce themselves from the husband should it be necessary.

Brother Terence Helikaon Nunis: That is correct, Sister Nico Le.  And the shari’ah is a theoretical concept derived from the Qur’an, the ahadits and other sources.  What we are actually addressing here is fiqh, jurisprudence, not shari’ah.  We do not implement shari’ah; we implement the fiqh.

Just like any law, fiqh is also dependent upon the makan, the place, and the zaman, the era.  What the Qur’an and the ahadits do is give the starting position, and we infer the Divine Intent, and extrapolate the required rulings, the ahkam, to adhere to that Divine Intent.  There is no reason that a fiqh position cannot evolve as the circumstances change.  Marital rape was not an issue until relatively recently, when we recognised that women have a right to their bodies within marriage, and are not the sexual property of the husbands.

Likewise, other positions may evolve as long as they do not directly contradict the Divine Intent and are contrary to the principles of the religion.  Does that mean the situation can change?  Yes, indeed. Does it mean it will change? Perhaps not for the foreseeable future, because no one is actually raising it and fighting for it.  Does that mean you can change it?  Yes, you have a say.  Now, the question is, what will you do about it?

Brother Abdul-Halim Vazquez: Yes but Islam and ‘Switzerland are like apples and oranges.  So that particular comparison is kind of weird from the start.  And it is not clear what conclusions could be fairly drawn from the results of the comparison.

Brother James Harris: It is a comparison between man-made law versus Islamic law, which was introduced above in this thread, and is very frequently done among Muslims.

Brother Abdul-Halim Vazquez: But it can only ever be a comparison between human-made law and human-made fiqh, and then you have to pick which humans.

Brother Cikgu Dah Bengang: If I may bring back the discussion to the issue introduced by Sister Nico Le, yes, Islam does lift the status of women from having no recognised rights, to having legal rights.  Regarding inheritance, in Islam, a female must inherit, whereas previously, she had no such guaranteed right.

Shari’ah law is not supposed to be static.  It must respond to conditions in society.  What happens today is that Muslims ourselves have become static in our thinking, hence the stasticity of the portions in inheritance.

On being the head of state - is that a right, or responsibility?  It is a fact that in Muslim history in many parts of the world such as Patani, a Malay sultanate that is now in southern Thailand, and in Acheh, now an Indonesian province, there have been female Muslim heads of state and government.  There was a supposed hadits which ostensibly prohibit this, but I am not sure if it is a strong one, and the words used seem to refer to a certain particular situation and not to be of general rule.  I find that this hadits has been conveniently used and abused time and time again to advance the political ambitions of politicos, to denigrate the forwardance of female rivals

Brother AbdRohim Sinwan: Muhammad Asad, in his book, ‘The Unromantic Orient’, had something to say on this matter: “The most glaring discrepancy is felt in that this is a community only of men; women are not included in their circle, they live a life of their own, unseen by the outside world even more so here than in other cities of the Orient with which I am familiar.  Yet the women are not disrespected.  On the contrary, the Muslims view their women in the same way they regard children, trying to protect what is important in order not to lose it.  But it seems that that which is cherished is thereby devalued and gradually becomes a comfortable obsession.”  This was his observation in Amman on June 1922.

Sister Shahida Mohamed Ali: I think a lot of the points touched on this thread are to do with Muslim or community problems, and also, yes, we operate within a legal framework, shari’ah, but we also have to look at the realities of our now, our societies, our issues and such.  Islam should not be reduced to just rights and responsibilities or contracts.  There is love, relationships, families, trials, circumstances, feelings.  The Prophet (s.a.w.) said he was Sent to perfect character, and that seems to be our very trial in this age, whether it is the man who wants to enforce himself upon a woman or the woman seeking to overcome the trials of her gender.  All this means nothing in the face of the true spirit of Islam, an experience with God, a beautiful dance where your perspective just focuses on what is truly important - you and God.  And also, Sister Nico Le, this article may help: Zawia Ebrahim: The Fithrah is the Authority.


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