Al-Mar'ah, al-Mafahim wa al-Huquq (Book)

Author: Mahdi Shajarian

Al-Mar'ah, al-Mafahim wa al-Huquq
Book Information
Author	Ahmad al-Qabbanji
Language	Arabic
Pages	331
Publication Information
Publisher	Manshurat Sayyidi

• Abstract

Al-Mar'ah, al-Mafahim wa al-Huquq: Qira'ah Jadidah li Qadaya al-Mar'ah fi al-Khitab al-Dini (Woman, Concepts and Rights: A New Reading of Women's Issues in Religious Discourse) is the title of a research work in the field of women's jurisprudence by Ahmad al-Qabbanji. In this book, the author critiques the traditional jurisprudential (fiqhi) reading of the status of women in Islam and, in contrast, presents a reformist and rational approach. The main axis of the book is based on the idea that many of the common rulings and concepts regarding women are not devotional (ta'abbudi) and eternal rulings; rather, they are rooted in the culture, custom ('urf), and social conditions of the era of revelation.

By distinguishing between "religion" (din*—fixed Quranic principles) and "Sharia" (historically variable laws), the author considers many famous narrations (riwayat) and fatwas to be the product of a patriarchal culture and specific temporal conditions that are in conflict with the spirit of the Quran and the criterion of rational justice. Ultimately, by examining instances such as guardianship (qawwamiyyah), blood money, inheritance, and political positions, the book concludes that with changing conditions, these rulings are also subject to revision and change in order to realize true justice—which has a fixed concept, but its instances vary according to temporal and spatial requirements—and that the Muslim woman enjoys equal rights with man in human, social, and legal arenas.

Brief Overview and Structure

The book Al-Mar'ah, al-Mafahim wa al-Huquq: Qira'ah Jadidah li Qadaya al-Mar'ah fi al-Khitab al-Dini (المرأة، المفاهيم والحقوق) is a research work in the field of women's jurisprudence in Arabic by Ahmad al-Qabbanji, organized in 331 pages and published by Manshurat Sayyidi in the city of Najaf in 2004. In this book, the author speaks of the intellectual and cultural conflict between two main currents regarding women's issues: the "jurisprudential Islamic current" or traditional one, and the "reformist Islamic current" or conscientious one. According to him, both currents represent a vast segment of Muslim thinkers and scholars, and one cannot accuse one of a lack of sincerity and consider the other to be true Islam (pp. 5-6).

According to the author's report, the traditional current is based on foundations such as the "universality of the mission and the continuation of the Sharia until the Day of Resurrection," the "devotional (ta'abbudi) nature of legal rulings," and the "comprehensiveness of religion for all aspects of life"; in contrast, the reformist current believes in the "historicity of the Sharia," the "human nature of jurisprudential deductions," the "separation between religion and the variable Sharia," and the "ability of human intellect for legislation." In this book, the author supports the second reading (pp. 6-7).

Structure

The discussions of the book are organized into an introduction and two main sections.

• The first section, entitled "Woman in the Circle of Concepts," critically analyzes the derogatory perceptions and narrations regarding women, such as the manner of woman's creation, the deficiency of her intellect and faith, and the necessity of her absolute obedience to her husband.
• The second section, entitled "Woman in the Circle of Rights," examines, on a case-by-case basis, key jurisprudential rulings such as the right of guardianship (qawwamiyyah), hijab, leaving the house, inheritance, blood money, political positions, marriage, divorce, and custody. In each topic, the author first presents the perspective of traditional jurisprudence and then, by referring to the Quran, intellect, and the conditions of the times, critiques it and presents his alternative viewpoint.

The Position of Islam Regarding Woman

Acknowledging that Islam elevated the status of woman (pp. 10-11) and that the general texts of the Quran emphasize the equality of man and woman in innate rights (pp. 11-12), the author raises the question of whether Islamic jurisprudence has also secured all the rights of woman. In this regard, he points to three viewpoints:

• Most jurists (fuqaha) believe that the Sharia has guaranteed the most complete rights for the woman (pp. 13-14).
• Some modernists say that due to the unfavorable cultural and social conditions of the era of revelation, Islam could not realize all the rights of woman and contented itself with a minimum, so that in the future, with the evolution of human intellect, these rights would be completed (pp. 14-16).
• The author himself believes that the legislations of Islam regarding woman were "just and reasonable" within their cultural and social context, but this does not mean their fixity; and with the change of time and place, their instances also change (pp. 16-17).

Based on the foundation of the separation of "religion" from "Sharia," the author believes that "religion" includes general doctrinal and moral values, and is a "fixed" matter; however, "Sharia" is the set of specific laws for every nation (ummah) that has been established according to the conditions of time and place, and is a "variable" matter. Accordingly, the Quranic concepts indicating the equality of man and woman in humanity are part of "religion," whereas the jurisprudential rulings related to woman are part of "Sharia" and have interacted with the social realities of their era, and they change with changing conditions (pp. 18-19).

Woman in the Circle of Concepts

In this section, the author examines the common concepts regarding woman in religious texts that have influenced the deduction of jurisprudential rulings (pp. 21-60). These concepts, although not directly jurisprudential, play a fundamental role in the formation of the issues of women's jurisprudence and contemporary jurisprudence. By referring to narrations, the author investigates issues such as the manner of woman's creation, the existence of woman being an evil, women being deficient in intellect and faith, the prostration of the wife to the husband, not consulting with women, the allocation of the Houri (hur al-'ayn) to men in Paradise, and the reprehensibility (karahah) of education for women. By examining the chains of transmission (sanad) of the narrations and critiquing their contents, he finds these interpretations to be in conflict with the spirit of the religion of Islam.

The Creation of Woman

According to the author, there are two viewpoints in the narrations regarding the creation of Eve (Hawwa). One group, influenced by the Torah, considers her to have been created from Adam's left rib, and the other group calls her the product of the surplus of Adam's clay, both of which are derogatory viewpoints toward woman (pp. 23-27). Rejecting these narrations, the author believes that the Quran considers the creation of man and woman to be from a "single soul" (nafs wahidah), which indicates equality in creation (pp. 27-30).

Women Being Deficient in Intellect and Deficient in Faith

Pointing to the description of women in Nahj al-Balagha as being "deficient in intellect, faith, and shares" (naqisat al-'aql wa al-iman wa al-huzuz) (p. 33), the author rejects this description and explains that abandoning worship during menstruation is obedience to the divine command, not a deficiency of faith; the lesser share in inheritance is due to the different financial responsibilities of man; and the predominance of emotion, which has been interpreted as a deficiency of intellect, is a perfection for fulfilling the maternal role (pp. 33-35).

Opposition to Consulting with Women

The author believes that the narrations that recommend against consulting with women and acting contrary to their opinions are a reflection of a patriarchal culture and explicitly oppose the Quran and the Prophetic conduct (sirah) (p. 46). The Quran has endorsed positive examples such as consulting with the daughter of Shu'ayb and acting upon the opinion of the Queen of Sheba (Malikat Saba'), and the Prophet also acted upon the opinion of Umm Salama during the event of Hudaybiyyah (pp. 47-52).

Woman in the Circle of Rights

In this section, using a new approach, the author examines the jurisprudential rulings related to women, such as the right of guardianship, leaving the house, hijab, holding political positions, blood money, inheritance, custody, divorce, and marriage.

The Right of Guardianship

According to the author, the verse "Men are the protectors and maintainers of women" (al-rijalu qawwamuna 'ala al-nisa) is the main foundation for traditional jurists regarding the inherent superiority of man and his right to head the family (pp. 63-64); however, the author believes that *qawwam* does not mean "head/supervisor", but rather means "protector and caretaker of affairs" (pp. 66-69). In his view, this guardianship in the Quran is accompanied by conditions such as "justice" (qist) and "goodness" (ma'ruf), and is granted to the man for two reasons: "by what Allah has preferred" (bima faddala Allah) and "by what they spend" (bima anfaqu); therefore, if the woman participates in the living expenses, one of the pillars of this right is eliminated (pp. 69-72). The author also believes that this verse is highly likely in the position of "informing" (ikhbar) about a social reality at that time, not the "establishment" (insha) of an eternal Sharia ruling (pp. 76-77).

Leaving the House

The author considers the fatwa of the prohibition of a woman leaving the house without her husband's permission, even for obligatory and recommended affairs (pp. 87-89), to be based on evidences such as the verse of guardianship (p. 89), the right of marital compliance (tamkin) (p. 104), and narrations stating that a woman is deserving of the angels' curses if she leaves the house without her husband's permission (pp. 91-92). In contrast, the author challenges these evidences in detail. He believes that the verse of guardianship is either in the position of stating a past social reality or is conditional upon justice and financial support (infaq), which might not be realized in today's world (pp. 90-91). The cited narrations are also weak in terms of their chain of transmission (sanad), contrary to the explicit text of the Quran regarding the mutual rights of man and woman, such as the verse "And due to the wives is similar to what is expected of them" (lahunna mithlu alladhi 'alayhinn), and in conflict with intellect and a sound conscience (pp. 92-100).

In the author's belief, the adherence of some jurists to traditional fatwas about women is rooted in their ideological thinking, which, by ignoring the developments of civil society, attempts to impose rulings that were effective for yesterday's society onto today's world. By proposing the distinction between the "concept" and the "instances" of justice, he states that although the concept of justice is fixed, its instances change in accordance with culture and time (pp. 124-126).

Hijab

By distinguishing between "Islamic hijab" and the "seclusion of woman" (hajb), the author believes that hijab, as a Sharia ruling, is not an obstacle to a woman's social participation; rather, the problem is a strict type of covering that has in practice led to "seclusion" (hajb) or marginalizing women from society (pp. 129-131). According to the author, two extremist discourses—namely the "traditional religious discourse" and the "Western secular discourse"—both damage the status of woman in different ways. The religious discourse, by emphasizing isolation, limits the woman to the roles of mother and wife, and the Western discourse, by emphasizing absolute freedom, destabilizes the foundation of the family. The author emphasizes that extremism in exerting pressure for hijab and gender segregation has had inverse results and has led to the spread of corruption and moral collapse (pp. 131-133).

The author emphasizes that the social presence and activity of woman is a necessity, not a deviation. This necessity can be examined from several aspects: 1) forming a healthy family (pp. 149-152); 2) the psychological health of the woman (pp. 152-153); and 3) the progress of society (pp. 154-155).

Holding Political and Social Positions

The author critiques the evidences of the opponents of women holding political and social positions from several aspects.

• Critique of the Argument from the Quran

The author considers the opponents' argument using the verse "And abide in your houses" (wa qarna fi buyutikunn) to be weak; because its address is specifically to the wives of the Prophet (s) and it possesses an advisory (irshadi) nature, not an obligatory one. Secondly, the conduct of believing women in the early days of Islam, including the Prophet's wives, involved leaving the house to participate in Friday prayers, jihad, and visiting the sick, and no jurist has issued a fatwa on the absolute obligation for a woman to stay at home (pp. 191-192).

He also considers the reliance on the verse "Or is one brought up in ornaments" (a-wa-man yunashsha'u fi al-hilyah) to be rejected; because this verse describes the condition of women in the culture of the pre-Islamic era of ignorance (Jahiliyyah), where they were deprived of education and upbringing, not the condition of the woman in the faithful and cultural atmosphere of Islam, which develops her personality (pp. 192-193).

• Critique of the Argument from Narrations

The author divides the narrations related to women into three categories:

1. Narrations consistent with intellect and the Quran: such as "Women are the twin halves of men" (al-nisa' shaqa'iq al-rijal) and "Paradise is at the feet of mothers" (al-jannah tahta aqdam al-ummahat), which are in complete accordance with the Quran and conscience (pp. 194-196).
2. Narrations contrary to intellect and the Quran: such as "Women are deficient in intellects" (al-nisa' naqisat al-'uqul) or "Woman is entirely evil" (al-mar'ah kulluha sharr), which, due to their explicit opposition to the spirit of the Quran and the dignity of the Prophet and the Imams, are fabricated and constructed by the culture of their time (pp. 196-197).
3. Narrations worthy of contemplation: such as "A people who entrust their affairs to a woman will never succeed" (lan yufliha qawmun wallaw amrahum imra'ah). These narrations, even if issued by the Infallible (Ma'sum), do not express a devotional and eternal Sharia ruling, but are propositions observing the external reality and the cultural and social conditions of that era. He considers the stark difference between the Quran and many narrations to be indicative of the historicity of the narrations and their being influenced by the culture of the time (pp. 197-201).

• Critique of the Argument from Consensus

In the author's belief, the claimed consensus (ijma') on the impermissibility of women holding political positions is a "document-based consensus" (ijma' madraki) and lacks authority (hujjiyyah). Furthermore, such a consensus fundamentally does not exist, and many early and later jurists have opposed it (pp. 207-210).

• Critique of Approbationary Aspects (Wujuh Istihsani)

The author considers reasons such as the viewpoint of the author of *Jawahir*, who said "it is not appropriate for a woman to sit with men," to be merely based on personal taste and founded upon undesirable customs (pp. 210-213). In his belief, the root of these viewpoints in traditional jurisprudence is, on the one hand, preferring the side of "chastity" ('iffah) over women's rights, and on the other hand, the deep-rooted patriarchal culture that views woman as a second-class being meant solely for service in the home (pp. 213-215).

Woman's Blood Money (Diyah)

Traditional jurists, to justify the fatwa of a woman's blood money being half that of a man's, argue that blood money is not the price of human blood, but rather a kind of "financial compensation" arising from the loss of the murdered individual. Since the economic role of the man in the family is generally greater than that of the woman, the loss caused by his murder is also greater, and therefore his blood money is double. In response to the objection that today women also have active economic participation, it is said that laws are legislated based on the "predominant state" of society, not exceptional cases (pp. 220-221).

To present a new solution, the author proposes three premises:

1. Distinction between Islam and Islamic thought: One must differentiate between "religion" as a sacred entity and "religious thought" which is the product of human understanding and influenced by time and place; thus, critiquing a famous fatwa does not mean opposing Islam (pp. 222-225).
2. The impact of time and place on jurisprudential deduction: Jurisprudence is a dynamic entity, and with changes in social, cultural, and epistemic conditions, the fatwas also change (pp. 225-232).
3. The primacy of the Quran over narrations: Many challenging jurisprudential rulings (such as the ruling on apostasy, stoning, and the halving of a woman's blood money) are solely documented by narrations. By proposing the theory of the "fixed and the variable," the author believes the general and fixed principles of religion are stated in the Quran, and the narrations have primarily addressed variable issues. Therefore, in legal and social issues like blood money, one must refer back to the Quranic principle of "justice" and "equality," and interpret opposing narrations in light of their historical conditions of issuance (pp. 232-233).

In the author's belief, the economic value of the work that a woman performs at home is no less than the work of a man outside, and her loss also inflicts a great economic loss upon the family. Moreover, the harm caused by the loss of a mother, from an emotional perspective for the children, is far heavier than the loss of a father, and the law of blood money should not ignore this aspect. Insisting on the halving of blood money in such conditions must either lead to pure devotional adherence (ta'abbud), which is incompatible with legal rationality, or it must be based on a logical cause that no longer exists externally (pp. 237-239).

The author ultimately concludes that, given the fundamental change in the economic and social role of women, the past economic justification for the difference in blood money can no longer be accepted. Since this ruling has no Quranic roots and is in conflict with the general principle of justice, and considering that the instances of justice transform with changing times, insisting on a woman's blood money being half is incompatible with the spirit of Islam and the requirements of today's world (pp. 239-240).

Woman's Inheritance

In the author's belief, legal rulings such as inheritance, unlike devotional (ta'abbudi) rulings, are based on a specific goal like "justice" and, for this reason, have the capability of rational analysis and adaptation to the conditions of the time (pp. 243-244). Emphasizing the overall superiority of Islam's inheritance system compared to the pre-Islamic era of ignorance (Jahiliyyah) and Western societies, the author examines challenging cases in which the issue of justice and legal equality for women is raised (p. 244).

The author presents the three main cases in which the inheritance shares of man and woman differ: the different shares of spouses, the double share of sons compared to daughters, and the deprivation of the wife from the husband's immovable properties (pp. 244-245).

In analyzing the first two cases, the author states the traditional justification of the jurists, who consider this difference to be just due to the greater financial responsibilities of the man (such as financial support [*infaq*] for the wife and children) (pp. 245-246); however, he raises this fundamental question: if in a society, women also participate in providing for living expenses, will this difference still be just? The author believes that although one cannot simply bypass the explicit text of the Quran, if the cause ('illah) of a ruling disappears, one can revise it by relying on the general principle of "justice." As a legal solution, he suggests that equality in inheritance can be realized through civil law and with the consent of the heirs (either directly or through elected representatives in parliament) (pp. 246-251).

The most important part of the author's critique is directed at "the deprivation of the wife from inheriting the husband's land." He emphasizes that this fatwa has no Quranic root and is in conflict with the absoluteness (itlaq) of the verse "And for them is a fourth of what you leave" (wa lahunna al-rubu' mimma taraktum) (p. 251). By analyzing the narrations documenting this fatwa, the author divides them into three categories and shows that the narrations indicating deprivation are in conflict with more authentic narrations that affirm the wife's right to inherit from all properties (pp. 253-260). The author also points to the opposition of great jurists like Muhaqqiq al-Ardabili to this fatwa in the past and endorses their view that the wife inherits from all of the husband's properties (pp. 260-268).

Marriage and Divorce

The author challenges the traditional viewpoint regarding the "right of marriage" and the "right of divorce." In this regard, he points to the issue of "the father's guardianship over the marriage of a virgin daughter" (wilayat al-ab 'ala zawaj al-bikr), where many contemporary jurists consider an "obligatory precaution" (ihtiyat wajib) in the necessity of obtaining permission from the father, although this precaution has turned into a condition for the validity of the contract in general custom (pp. 279-280). In contrast, the author cites the famous viewpoint of early jurists, including Muhaqqiq al-Hilli and al-Sharif al-Murtada, who considered the father's guardianship over the marriage of a mature and sensible (rashidah) daughter to be dropped (p. 280). He mentions reasons to prove this viewpoint:

• The principle of non-guardianship (asl 'adam al-wilayah): The foundational principle is that every mature and sane human being has dominion over all their own affairs, and guardianship over them is contrary to the principle and requires definitive evidence (p. 281).
• Quranic generalities (umumat): Verses such as "Fulfill the contracts" (awfu bi al-'uqud) and "marry those that please you of women" (fa-nkihu ma taba lakum min al-nisa) have generally delegated the choice of marriage to the individuals themselves (p. 281).
• Explicit narrations: Numerous narrations have been transmitted from the Imams (a) that confirm the independence of the daughter in the matter of marriage (p. 282).
• The weakness of opposing evidences: The narrations used to prove the father's guardianship are weak in terms of their chain of transmission, and in the case of conflict as well, the narrations indicating the woman's independence take precedence due to greater fame (shuhrah) and agreement with the Quran (p. 283).

The author also rejects the common argument that "divorce is in the hands of the man because the man is more rational." He believes that in practice, it is the woman who, due to emotional attachment and social pressures, strives more to preserve the family (pp. 288-291). With a new interpretation of the famous hadith "Divorce is in the hand of the one who takes the leg [i.e., the spouse]" (al-talaqu bi-yadi man akhadha bi al-saq), the author believes this hadith places the right of divorce at the disposal of the "spouses" and strips it from others (like the father), not that it restricts it solely to the man (pp. 291-292).

He emphasizes the woman's right to "divorce by relinquishing her dower" (talaq al-khul), and by citing the conduct of the Prophet (s) in the incident of Thabit bin Qays's wife, he states that if a woman has an aversion to living with her husband and relinquishes her dower (mahriyyah), the Sharia judge (hakim al-shar) is obliged to execute the decree of divorce (p. 292). Criticizing fatwas that limit a woman's right to divorce even under difficult conditions, the author considers these fatwas to be contrary to the spirit of justice and the maxim of no hardship (qa'idat la haraj) (pp. 293-295).

Custody

Regarding the custody of a child after divorce, there are various fatwas. The famous fatwa is that the custody of a boy up to two years of age and a girl up to seven years of age is with the mother. Some jurists consider the custody of both to be with the mother until seven years of age (pp. 299-301). By examining the narrations, the author considers the famous fatwa (differentiating between the boy and the girl) to be an "unwarranted reconciliation" (jam' tabarru'i) without narrative and rational evidence. By reconciling the three categories of existing narrations (the narrations of two years, seven years, and until the mother's remarriage), he comes to the conclusion that the strongest and most just opinion is the mother's right of custody up to seven years of age for both children (boy and girl). This opinion is compatible with the more authentic narrations, as well as with the emotional and psychological needs of the child at these ages, and with intellect and custom. After seven years of age, priority is with the father, unless the child's best interest dictates otherwise, in which case the determination lies with a competent court (pp. 304-315).

In the author's view, the condition of "Islam" for the mother to have custody is also rejected. The verse of negating dominion (ayat nafy al-sabil) that is cited for it, applies to domination and governance, whereas custody is an emotional and service-oriented relationship. Furthermore, at an early age, a child does not have a proper understanding of beliefs for the danger of their deviation to be posed (pp. 317-320).