Muslim legal tradition does not treat men and women equally. The assumption at the root of this unequal treatment is that men are, and should be, in charge of women. This assumption is encapsulated in two legal concepts that place women under male guardianship. These are Qiwamah, which denotes a husband’s authority over his wife; and wilayah, which denotes the right and duty of male family members to exercise guardianship over female members.
These concepts, as constructed by classical jurists and reflected in current laws and practices, have played and continue to play a central role in institutionalizing, justifying and sustaining gender inequality in Muslim contexts. Behind these laws and practices lies an ancient idea: Men are strong, they protect and provide; women are weak, they obey and must be protected.
Defenders of male authority frequently invoke Qur’anic verse 4: 34 as their main textual evidence:
Men are qawwamun (protector/maintainers) in relation to women, according to what God has favored some over others and according to what they spend from their wealth. Righteous women are qanitat (obedient) guarding the unseen according to what God has guarded. Those [women] whose nushuz (rebellion) you fear, admonish them, and abandon them in bed, and adribuhunna (strike them) If they obey you, do not pursue a strategy against them. Indeed, God is Exalted, Great.
It is no exaggeration to say that the edifice of family law in Muslim legal tradition is built on the ways in which classical jurists understood this verse and translated it into legal rulings. There is now a substantial body of literature that attempts to contest and reconstruct the meanings and connotations of the four key terms highlighted above. The translations I have given approximate the consensus of classical jurists, as reflected in the rulings (ahkam) that they devised to define marriage and gender relations. Their rulings rested on a single postulate: that God placed women under male authority and protection. They defined marriage as a contract that automatically places a wife under her husband’s qiwamah (authority), and presumes an exchange: the wife’s obedience and submission (tamkin) in return for maintenance (nafaqah) by the husband.
Yet this is the only appearance in the Qur’an of the word qawwamun in relation to marital relations. The abstract term qiwamah, which derives from it, does not appear at all.
In relation to marriage and relations between spouses, however, two other terms appear several times: ma‘ruf (common good) and rahmah wa muwadah (compassion and love). And there are other verses that affirm the essential equality of men and women in the eyes of God and the world.
Consequently, the following questions arise:
- Why and how did verse 4:34, rather than other relevant Qur’anic verses, become the foundation for the legal construction of marriage?
- Why did the jurists not choose to base their legal rulings on the two other terms that occur so frequently?
- How, and through what juristic processes, was men’s authority over women legitimated and translated into laws?
- What does male guardianship, as translated in the concepts qiwamah and wilayah, entail in practice?
- How can we rethink and reconstruct them in ways that can accommodate gender equality?
- Do those modern-day jurists and Muslims who resist and denounce the notion of equality in marriage and society as alien to Islam have any more valid textual justification to offer?
- How can we argue for an egalitarian construction of Muslim family laws from within Muslim legal tradition?
These questions are central to the ongoing struggle for equality and justice in Muslim families. Men in Charge? Rethinking Authority in Muslim Legal Tradition seeks to clarify the questions and suggest some answers.
The book is the first product of a research initiative that we began in Musawah in 2010, to understand how male dominance became embedded within Muslim legal tradition, which has legitimated and institutionalized a patriarchal model of family and gender relations. It builds on the scholarship and insights of an earlier project - ‘New Directions in Islamic Thought’ of the Oslo Coalition for Freedom of Religion or Belief.
The Musawah project has two interconnected elements. The first is the production of new feminist knowledge that critically engages with the legal concepts qiwamah and wilayah and redefines them in line with contemporary notions of justice. The second element of the project involves documenting the life-stories of Muslim women and men in different countries with the aim of revealing how they experience, understand, and contest these two legal concepts in their lived realities.
For the first element of the project, we invited scholars from different disciplines to write background papers that expound and interrogate the construction of qiwamah and wilayah, their associated religious and legal doctrines, and their place and working in contemporary laws and practices. Then, in the course of several intensive workshops beginning January 2010 we discussed these background papers and shared their insights with our advocates and those involved in the Global Life Stories.
We framed the project in two related contexts. The first is that of the recent encounter between two ideologies and modes of knowledge production, one rooted in pre-modern notions of justice, gender and rights, which allow discrimination among individuals on the basis of faith, status and gender, as found in pre-modern interpretations of the Shari‘a; the other shaped by the ideals of human rights, equality and personal freedom, as found and advocated in international human rights documents such as CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women).
The second context is that of twentieth-century shifts, both globally and locally, in the politics of religion, law and gender, and the changed relationship between Muslim legal tradition, state and social practice in Muslim contexts.
Interrogating Muslim legal tradition through a critical feminist lens, Musawah takes a critical feminist perspective, but most importantly we also work within the Muslim legal tradition by invoking two of its main distinctions. The first distinction is between Shari‘ah and fiqh – a distinction that underlies the emergence of various schools of Islamic law and, within them, a multiplicity of positions and opinions. Shari‘a, literally ‘the way’, is the ideal divine way, which in Muslim belief was revealed to the Prophet Muhammad through the Qur’an. Fiqh, literally ‘understanding’, is the science of Islamic jurisprudence, as developed by Muslim jurists in order to discern the terms of the Shari‘a, through extracting legal rules from the sacred sources of Islam: that is, the Qur’an and the Sunna (the practice of the Prophet, as contained in hadith, Traditions). Fiqh also denotes the ‘laws’ that result from this process, and like any other system of jurisprudence and law, is man-made, temporal and local. Anyone who claims that a specific law or legal rule is Shari‘a, or ‘God’s law’, is claiming divine authority for something that is in reality a fiqh ruling, which is nothing but a human interpretation. What we ‘know’ of ‘Shari‘a’ is and always will be only an interpretation, an understanding.
The second distinction, which we also take from Islamic legal tradition, is between the two main categories of legal rulings (ahkam): those that regulate ‘ibadat (ritual/spiritual acts) and those for mu‘amalat (social/contractual acts). ‘Ibadat concern relations between God and the believer, where jurists contend there is limited scope for rationalization, explanation and change, since they pertain to the spiritual realm and divine mysteries. This is not the case with mu‘amalat, which are relations among humans and remain open to rational considerations and social forces; most rulings concerning women and gender relations belong to this category.
These distinctions give us the language and the conceptual tools, to challenge patriarchy from within Muslim legal tradition. Our main objective is to insert women’s concerns and voices into the processes of the production of religious knowledge and legal reform in Muslim contexts. We do this by linking scholarship with activism, contributing to the larger struggle for the democratization of knowledge in Islam and for the authority to interpret its sacred texts.
The book Men in Charge? clearly shows that male authority over women cannot be defended on religious grounds. Our studies show that qiwamah and wilayah, in the sense of placing women under male guardianship, are not Qur’anic concepts; they are juristic constructs that in time became the ‘DNA of patriarchy’ in Muslim legal tradition. They rest on the assumption that God gave men authority over women, a theological fiction that became a legal fiction, whose main function now is to sustain gender inequality.
The idea of gender equality, which is now inherent to conceptions of justice, provoked what we can call an ‘epistemological crisis’ for Muslim legal tradition, which Muslims thinkers have been trying to meet since the early 20th century. The break-through, I contend, came only recently, with the rise of new reformist and feminist voices and scholarship in Islam.
These new critical voices start from the premise that the textual sources of Islam are not inherently patriarchal, nor do they set out an exhaustive set of eternal, immutable laws. What they give us is ethical guidance and principles for the creation of just laws. The Qur’an upholds justice and exhorts Muslims to stand for justice; but it does not give us a definition of justice, rather it gives indications of the path to follow towards justice, which is always time-bound and context-specific. To understand the Qur’an’s direction, they contend, we need a critical reassessment of the entire Islamic intellectual tradition: theology, ethics, philosophy and jurisprudence.
But this fresh approach faces a major obstacle: entrenched patriarchal and authoritarian structures, and how they conspire to silence the voices of reform and change.
Recent political developments – notably, the emergence and suppression of the Green movement in Iran, subsequent popular uprisings in Egypt, Tunisia, Libya, Syria and Turkey, and the rise of so called ‘Islamic state’ – have once again revealed the extent to which women’s rights in Muslim contexts are vulnerable to local and global power struggles between forces with diverse priorities and agendas. Islamist elements, which tend to win popular support in times of upheaval, are almost always motivated by traditionalist patriarchal assumptions and policies, supported by established pre-modern interpretations of the Shari‘a. These interpretations provide them with the theological and ideological justification for keeping women under male authority and treating them as second-class citizens – or worse.
The problem is not, and never has been, with the text, but with context, and with epistemologies, ways of knowing the text, as well as ways in which the text is used to sustain patriarchal and authoritarian structures. The strategy must be not just logical argument and informed reinterpretations from within the tradition; there must also be challenges on the political front. What are the motives and interests of those who claim the authority to speak in the name of religion, who manipulate interpretations of the texts for authoritarian purposes, and who in effect appeal to concepts such a qiwamah and wilayah not only to support male authority in the family but also to maintain authoritarian and absolutist approaches to religion and society.
The new feminist voices and scholarship are taking up these challenges. They are opening the way for a meaningful and constructive conversation between feminism, human rights and Muslim legal tradition. On the epistemological front, feminist critical theory enables us to see how unreflective assumptions and ‘common sense’ arguments limit and deform our knowledge. It gives us tools for analysing relations between the production of knowledge and the practices of power. It also provides us with a research methodology for giving voice to women and inserting their concerns and interests in the process of law making.
On the political front, bringing current Muslim legal tradition into conversation with feminism can pave the way for transcending ideological dichotomies such as ‘secular’ versus ‘religious’ feminism, or ‘Islam’ versus ‘human rights’, to which Muslim women’s quest for equality and dignity has remained hostage since the early twentieth century. These dichotomies have masked the real site of battle, which is between patriarchal and authoritarian structures, on the one side, and egalitarian, pluralist and democratic ideologies and forces on the other.
Unmasking this reality entails two linked processes: recovering and reclaiming the ethical and egalitarian ethos in Islam’s sacred texts, and decoding and exposing the relation between the production of knowledge and the practices of power. It is only then that we can aspire to real and meaningful change that can dent the deeply embedded assumptions and tendencies that have shaped our religious, cultural and political realities.