Women's Employment and the Limits of the Husband's Prohibition (Book)
| Women's Employment and the Limits of the Husband's Prohibition (Book) | |
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| Book Information | |
| Author | Esrafil Sobhani |
| Subject | Family Jurisprudence / Women's Employment |
| Style | Argumentative Jurisprudence |
| Language | Persian |
| Publication Information | |
| Publisher | Khorsandi Publications |
- Abstract
Women's Employment and the Limits of the Husband's Prohibition (اشتغال زن و حدود مانعیت زوج) is a Persian book about women's rights that, from a jurisprudential, legal, and social perspective, seeks to examine the limitations of women's employment as well as to determine the limits of the husband's authorities in this issue within Islamic society. According to the belief of Shahla Jahanbazi and Fariba Hajiali, the authors of the book, Islam and the Quran have taken great steps in favor of women, have not differentiated between men and women, and have also paid attention to women's employment. According to them, women during the era of the Prophet were engaged in common professions of that time, such as medicine.
In the authors' belief, one of the most important reasons for the permissibility of women's employment is the verse "And for women is a share of what they have earned" (wa lil-nisa'i nasibun mimma iktasabna), and on the other hand, they consider the story of Jethro's (Shu'ayb) daughters and the story of the Queen of Sheba in the Quran as supporting this permissibility. Based on the book's report, the majority of jurists believe in the permissibility of women's employment; although, in the event of a conflict (Tazahum) between work and family interests, they consider the interests to have priority. Among the jurists' reasons is the rule of dominion (Qa'idah al-Taslit).
In the authors' belief, in Article 28 of the Constitution, having a job is considered one of the natural rights of every individual, whether man or woman; of course, women's competence for employment in the judiciary has been negated by law. Also, according to civil law, a husband has the right to prohibit his wife's employment in specific jobs due to incompatibility with family interests or the dignity of the spouses; however, he cannot prevent the wife's right to employment. Therefore, a woman can change her job so that it is not incompatible with family interests.
Brief Overview and Structure
The book Women's Employment and the Limits of the Husband's Prohibition is the result of joint research by Shahla Jahanbazi, holding a master's degree in women's studies, and Fariba Hajiali, an associate professor at the Faculty of Theology at Alzahra University, which was published in Persian by Khorsandi Publications in 2020 (1399 SH). This book is about one of the most important rights of women, namely their employment, and determining the extent of the husband's authorities in imposing limitations on the wife's employment. From a jurisprudential, legal, and social viewpoint, the authors of the book seek to examine the issue of women's employment, the existing problems within it, as well as strategies to solve the dilemmas (p. 13).
Structure
The book Women's Employment and the Limits of the Husband's Prohibition is organized into eight chapters. The initial chapter deals with generalities and the semantics of concepts such as employment, housewife, women's employment, marital disobedience (Nushuz), and a disobedient wife (Nashizah) (pp. 15-24). The second chapter of the book is dedicated to the history of women's employment in Iran and the world (pp. 25-64). The third chapter addresses the sociological foundations of women's employment. In this chapter, theories such as feminist theories, gender theories, and functionalist theories regarding women's employment have been examined (pp. 65-80). From the fourth chapter, the authors enter into jurisprudential and legal discussions. First, the religious and jurisprudential foundations of women's employment are examined from the perspective of the Quran, Hadiths, and jurists (pp. 81-110); then, in the fifth chapter, the legal and statutory foundations of women's employment are elucidated from the perspective of Iran's domestic laws and rights, as well as international laws and rights (pp. 111-130). In the sixth chapter, the jurisprudential and legal opinions and viewpoints regarding the husband's prohibition of the wife's employment have been considered. In this context, public limitations, gender limitations, and limitations arising from the marital relationship are mentioned (pp. 131-144). In the seventh chapter, the authors engage in a jurisprudential and legal analysis and examination of the discussion of the husband's prohibition of the wife's employment (pp. 145-180), and finally, the pathology of the husband's prohibition of the wife's employment is addressed in the eighth chapter. The authors of the book believe in this regard that the husband's prohibition of the wife's employment causes psychological trauma to the woman and the waste of her talents and abilities (pp. 181-203).
Women's Employment as a Social Issue
Before being a jurisprudential or legal issue, women's employment is an issue with evident impacts in the social sphere on one hand, and in individual spheres on the other. In the authors' belief, this important characteristic has caused women's employment to become a multidimensional category that, in addition to social dimensions, is of importance economically, culturally, and even politically. It is obvious that an effective and wise encounter with such a subject requires a comprehensive view of it. In their view, the universe is constantly moving on a path of indescribable and, of course, purposeful work and effort where unemployment and aimlessness have no meaning in it; the constructive, creativity-bestowing, and flourishing role of work and activity is for all human beings the manifestation and source of acquiring human identity and is perfecting (p. 17).
In the authors' belief, although based on sociological foundations a woman can, in addition to housekeeping and raising children, have economic and social activities outside the home, does she also possess the existential (Takwini) capacity for this work (p. 77)? According to them, undeniably, fulfilling both roles completely is not feasible for a woman; because time limitations do not allow the woman to attend to her child and fulfill the demands of her husband and home during the hours she is engaged in economic and social activities. Limitations in energy also cause the woman to lack the physical strength to properly fulfill the roles of spouse and mother after returning from the workplace (p. 77).
Recognizing the Financial Independence of Women from the Perspective of Islam
The authors believe that Islam and the Quran, in the era of its revelation, took great steps in favor of women and their human rights. This religion did not grant legal privileges and preferences to men over women, but rather observed the principle of human equality regarding men and women. According to them, there are verses in the Quran showing that in the religion of Islam, women can enjoy financial independence just like men (p. 32). Women's employment during the era of the Prophet (PBUH) is also widely evident, and women were present in all common professions of that time, such as medicine, handicrafts, and even trade. In general, one of the goals of the Prophet of Islam was to secure freedom and liberty for women under the shadow of faith and piety (p. 33).
Religious and Jurisprudential Foundations of Women's Employment
According to the authors, addressing the religious and jurisprudential foundations of women's employment can have significant impacts on the thoughts of society in this regard (p. 83). For this purpose, from the perspective of the Quran, Hadiths, and the opinions of jurists, they have proceeded to extract the foundations for the legitimacy of women's employment.
Permissibility of Women's Employment from the Perspective of the Quran
Based on the authors' report, one of the most important verses from which the permissibility of women's employment can be derived is the verse of earning (Ayat al-Iktisab*: "And for women is a share of what they have earned"). In this verse, women benefiting from what they earn is explicitly stated. They believe that apart from this verse, which speaks very explicitly about women's employment, there are other verses that generally encourage and persuade both men and women toward economic activity (p. 84). Among the most prominent of this group of verses that generally encourages economic activities is Verse 10 of Surah al-Jumu'ah, which calls upon people, both men and women, universally to participate economically after performing the Friday prayer (pp. 84-85). In addition to the mentioned verses, the authors consider other instances from the Quran, such as the story of Jethro's (Shu'ayb) daughters and the story of Bilqis, the Queen of Sheba, as indicative of women's employment throughout history (pp. 86-87). According to the writers of the book, recognizing the woman's right to ownership in the Quran can also be considered one of the signs of the permissibility of women's employment (p. 86).
Legitimacy of Women's Employment Relying on Hadiths
Relying on the Prophet's tradition (Sunnah), narrations, and Hadiths of the Imams (a), the authors believe in the legitimacy of women's employment. Based on their report, during the Prophet's time, many women engaged in commercial activities, such as Umm Mundhir who sold dates during the Prophet's time, or Asma bint Makhrama who was a perfume seller, importing perfume from Yemen and selling it in Medina, or the Prophet's own wife, Lady Khadijah, who engaged in trade and commerce for many years (p. 87). Moreover, relying on numerous narrations, women in early Islam, aside from the profession of trade, were engaged in various professions including teaching and education, spinning and weaving, hairdressing, cooking, nursing and caring for children, medicine and surgery, especially midwifery which was exclusively in the hands of women, and through this they sought to earn income (pp. 89-93).
Women's Employment from the Perspective of Jurists
The writers of the book consider the opinions of jurists as another important source in the discussion of women's employment. They point to two categories of jurists' opinions regarding women's employment: 1) a group of jurists who have recommended absolute seclusion in the home for women, and 2) jurists who recognize women's right to employment. According to the authors, most of the negative views on women's employment belong to Sunni jurists, and Imami jurists have acted much more flexibly in this regard (p. 93).
Those who believe in women's employment hold the opinion that in Islam, women have not been prohibited from any job, and Islam always calls upon women to participate in social activities and undertake social duties. They consider the assigning of governmental positions to women in early Islam as indicative of the endorsement of this right to work for women (p. 94). This group of jurists, influenced by Quranic verses, has considered the right to work permissible for women, deeming it an indisputable and natural right of women, and has accepted it without any conditions. In the view of these jurists, Islam has not issued an order for seclusion and non-participation of women, and has no opposition to women's work (p. 94).
Conversely, a group of jurists who forbid women's employment believe that a woman's business and work cause sedition (Fitnah) and corruption; therefore, women are prohibited from engaging in any work. These jurists not only consider women's employment as causing moral corruption in society but also believe that women's employment is not proper and fitting because they bear no financial expenses (Makharj) in the home (p. 95).
Equality of Men and Women in Employment Based on the Rule of Dominion
Relying on this research, the majority of Imami jurists have not negated the presence of women in economic activities and have accepted the financial independence of women. In addition to relying on Verse 32 of Surah al-Nisa, they have also relied on the rule of dominion (Qa'idah al-Taslit). According to this rule, all people, whether men or women, have the right to any kind of disposition over their own properties, which are the result of their own earning and income (pp. 102-103).
In the view of Ayatollah Javadi, the legal difference between men and women and the issue of their employment have no connection whatsoever to the issue of superiority. Human perfection and executive positions are two separate subjects. The principle is the acquisition of knowledge and understanding, in which men and women are equal, but jobs, positions, and social activities can in no way represent perfection; rather, it is something that is divided according to physical structure and need (p. 103). Allamah Tabataba'i also considers men and women equal in will and work regarding managing the affairs of life; therefore, a woman can, like a man, will independently, work independently, and become the owner of the result of her work and effort. Also, Imam Khomeini, since he views the economy as a tool for the elevation of Islam, endorses women's employment alongside men with this intention (p. 103).
Precedence of Family Interests Over Women's Employment
Based on the authors' report, although in the viewpoint of Imami jurists the right to work for women is recognized, and alongside it, financial independence and fair wages are also accepted, nevertheless, considering the necessity of preserving the foundation of the family, the importance of women's work at home, and the compatibility of women's nature and biological characteristics with it, jurists prefer to place the responsibilities of housework and raising children upon women in the division of labor. In the event of a conflict (Tazahum) between women's work outside the home and family interests, the fundamental interests, which are raising children and managing the household (Hamsar-dari), take serious priority (p. 105).
According to the writers, in the laws as well, limitations and regulations have been established for women's work in the area of preserving family interests and the dignity of the husband and wife, such as the fact that if a woman's work necessitates her leaving the house, it is necessary to obtain the husband's permission and consent. Also, since performing hard and heavy labor is not proportionate to the physical and psychological condition of women, therefore this category of work is not fitting for them, and in fact, not only is this type of work not considered a service to women, but it is deemed an oppression against them and an unforgivable injustice to them (pp. 106-109).
Legal and Statutory Foundations of Women's Employment
Relying on the findings of the book's researchers, in the laws related to women's employment in the Islamic Republic of Iran, not only is there no discrimination in the sense of legal injustice against women, but a set of facilities and privileges such as part-time work, maternity leave, early retirement, etc., have been stipulated for the consolidation of the family (p. 113). According to Article 28 of Iran's Constitution, every citizen has the right to choose the job they desire, provided it is not contrary to Islam, public interests, and the rights of others. The government is obligated, while observing society's need for various professions, to create the possibility of employment and equal conditions for attaining jobs for all individuals. As is evident, this article has made no distinction between men and women (p. 115).
According to the authors, in the Labor Law of the Islamic Republic of Iran, an effort has been made to not only pay attention to international conventions and recommendations regarding women, but considering the dignity that Islam has accorded to women, regulations have been formulated in a way that women, in addition to being employed in various jobs, are capable of fulfilling their grave duties in the family. In the country's Social Security Law as well, regulations have been anticipated to support the equality of men and women in employment (pp. 117-118).
Limitations on Women's Employment in Iran
Based on the findings of this research, limitations have been anticipated in the constitutional and ordinary laws of the Islamic Republic of Iran for the employment rights of women and men, such as the job not contradicting Islamic rulings and standards, and the job not conflicting with public interests, both of which are considered general limitations. Furthermore, the law has anticipated specific limitations for women's employment (p. 133); including limitations in acting as a judge (Qadhawat), the prohibition of employment in positions within the armed forces, and limitations arising from the marital relationship.
Limitations in Acting as a Judge
After the victory of the Islamic Revolution, women's competence to act as judges was negated according to the law, and this prohibition was based on the famous opinion (Mashhur) of Imami jurists who considered being a man a condition for attaining the position of a judge. Of course, this prohibition does not conflict in any way with women assuming the roles of advisory judge and investigating judge (pp. 134 and 136). One of the reasons for opposing women acting as judges is the existence of four verses in this regard which have been relied upon by them. Among these Quranic references is Verse 18 of Surah al-Zukhruf; expert opponents have inferred women's overall weakness and inability compared to men from the content of this verse and have concluded that since women are weaker than men both physically and intellectually, therefore they do not possess the necessary competence to undertake matters such as religious jurisprudence (Fiqahah), judging, and governance, and men, who are stronger than them in every aspect, will be worthy of attaining such positions; although proponents of women acting as judges reject this argument (pp. 136 and 138).
Limitations in Armed Forces Services
Also, based on the existing laws of the country, women may be employed in military and law enforcement authorities, but in a limited manner, and that only in medical, health, and similar professions, while they are not utilized in heavy jobs. The reason for enacting such laws is also clear and evident, because it falls under the category of enacting protective laws, prohibiting hard and hazardous work for women, and considering their specific condition (p. 141).
Limitations Arising from the Marital Relationship
In the positive laws of the Islamic Republic of Iran, limitations have also been anticipated for married persons. In Article 1117 of the Civil Code, the husband is given the right, under certain conditions, to prohibit his wife from engaging in work; these limitations are expressed in this manner: the husband can, with the court's approval, prohibit his wife from engaging in any job that conflicts with family interests or his own or the wife's dignity. Of course, limitations for men are also seen in the Family Protection Law (p. 142).
Jurisprudential and Legal Analysis of the Husband's Prohibition of the Wife's Employment
In the opinion of the authors, some jurists (Huquq-danan), influenced by the famous theory of religious jurists (Fuqaha), have assumed a broad scope for the husband's headship and have stated: From a jurisprudential perspective, in principle, the wife's leaving the house for whatever purpose must be done with the husband's agreement. Therefore, if the wife was not employed at the time of marriage and the marriage was not concluded with the condition of employment, the husband can absolutely prohibit the wife from engaging in any kind of profession outside the home (p. 153). However, the truth is that according to Article 1117 of the Civil Code, the husband does not have the right to absolutely prohibit his wife's employment; he can only prevent the wife's employment in specific jobs due to incompatibility with family interests or the dignity of the spouses. Thus, if the husband opposes the wife's job for the mentioned reason, the wife must change her job and choose a job that is compatible with the interests of the family and the wife. Therefore, it can be said that the husband can oppose the wife's job, but he cannot oppose the wife's employment; and the result is that the deprivation of the right to employment is not considered among the effects of the marriage contract (p. 155).
Regarding the condition stipulated within the contract (Shart Dhimn al-'Aqd) for employment, it must also be said: The spouses may agree within the marriage contract (Nikah) that the wife be employed, or have a specific job. There is no doubt that the mentioned conditions in this contract are effective (Nafidh) and must be acted upon accordingly; although the famous opinion of Imami jurists does not consider acting upon initial conditions (Shurut Ibtida'i) in a marriage contract as obligatory to fulfill (Lazim al-Wafa') (pp. 172-175).