Shariah, Fiqh and Women’s Rights – Part 7

By Professor Nazeer Ahmed

(Dr. Nazeer Ahmed, educated at Cornell University and other institutions. He is author of several books and innumerable research papers. He has also been featured as an invited speaker in many countries. Dr. Nazeer Ahmed was a Chief Engineer for the Hubble Space Telescope and several Star War projects.  He was Institute Scholar at Caltech, and Adjunct Professor to University of New Mexico. He has also been Consultant to numerous other institutions of high training and research here and abroad.  He is currently President of WORDE, a non-profit NGO based on Washington, D.C. He is also Executive Director of American Institute of Islamic History and Culture and Consulting Dean to HMS Institute of technology, Bangalore, India)

Amina Wadud recently caused a global stir by leading a mixed gathering of men and women in prayer. I heard speeches as far away as a village near Bangalore denouncing this event, and one in Dallas, TX by Professor Ali Mazrui supporting it.

Neither the event nor the responses deserve much attention. This was a non-event. Were it not for the attention of international media, it would have passed without much ado. As far as this writer is aware, a woman leading a mixed gathering of men and women is not sanctioned by historical precedents, social customs (a’dat), or religious edicts in any of the schools of fiqh. There are far more basic and fundamental issues facing the position of women in modern Islam than that of a woman leading a mixed gathering in prayer. It is like arguing about where to put a traffic light at an intersection when there are no roads leading up to the intersection.

There are perhaps more articles written, and more sermons given about women’s rights in Islam than perhaps any other subject. And there is no other issue that is used by the detractors of Islam to whip up a dislike for this religion.

Islam provides an exalted position for women. She is the spiritual co-equal of man and a partner in their common spiritual destiny. Men and women are described in the Qur’an as “garments” of each other, meaning that each is the honor, the embellishment and the beauty of the other. They are intertwined, like two bundles of light, complementing each other, and like an endless spiral, elevate the spiritual station of one with respect to the other.

But alas! This nobility is not reflected in the world of man. In many parts of the Islamic world, women are denied even their most fundamental human rights. There are entire regions where women cannot get a meaningful education, look for honorable work, drive a car, venture out of their homes without an escort or vote in a democratic election. Illiteracy is rampant. Health care is abysmal, and childcare non-existent. Protection from the legal systems is at the mercy of local customs. Women are beaten, subjected to “honor killings” and are abused for reasons that are unquestioned and unreported. Such human rights violations do not just happen “over there”; there are cases of abuse right here in the United States.

In this article, we examine briefly the position of women’s rights from a spiritual perspective and offer some insights on how they may be implemented in the modern global context.

We take as our point of departure the positions taken by two of the intellectual giants of the twentieth century. The Turkish poet Zia and Mohammed Iqbal of Pakistan reiterated the primacy of spirit over the physical and emphasized the construction of a spiritual democracy requiring inputs from all Muslims, not just from a few muftis. In other words, they argued for opening up the process of Ijtihad to all people, the ruler and the ruled, the prince and the pauper, the trader and the civil servant, the alim and the unlettered. Men and women, brothers and sisters, sons and daughters, mothers and fathers, grandmothers and grandfathers must all be participants in the process of applying the Shariah to social issues.

There are two separate elements in this position. One, the formulation and promulgation of legislative edicts is not just the privilege of a mufti; it is the privilege of all Muslims. Secondly, this process is as much open to women as it is to men. A legislative body, reflecting the will of women and men, would be fully responsive to the rights and responsibilities of both.

There are historical precedents for supporting both individual and collective ijtihad. During the Caliphate of Omar ibn al Khattab (r), it was Ali (r) who was often called upon to give legal opinions. Even Emir Muawiya, while he was locked in mortal combat with Ali (r), sought the latter’s advice on legal matters. The edicts of Ali (r) provided a foundation for much of Maliki fiqh in later years. The principles of Istehsan (creative juridical opinion based on sound principles) and Qiyas (deduction by analogy by a learned scholar) are allowed in some of the Sunnah schools.

On the other hand, all four of the Sunnah schools of fiqh use the ijma (collective opinion) of the Companions for their legal standings. The establishment of the Caliphate, the election of Abu Bakr (r) and later of Othman (r) offer concrete historical examples of collective ijma.

Women have had a profound impact of the development of fiqh from the very inception of Islam. The blessed ladies of the Prophet’s household were a source of a large number of traditions. Both Aisha (r) and Fatima (r) are a source of many ahadith which form the basis for fiqh.

Thus history supports both individual as well as collective ijtihad. In modern times, with the complexities of a global civilization, it is difficult for a single individual to grasp the interrelationships and subtleties of economic, technological, social, political and ethical implications of an issue. Collective ijtihad of a legislative body offers a more comprehensive methodology for tackling the issues of modern life. In such a legislative body, women must have as much of a say as men, as voters, participants, discussants and decision makers. Full and complete legislative empowerment of women is a first step in the full realization of spiritual democracy in Islam.

Once a legal position is taken, and a law is enacted by a legislative body, can it be implemented by a woman, acting as a judge? Historical precedence provides an answer in the affirmative. In the year 1236 CE, at the height of the Mongol onslaught, Razia Sultana ruled a vast empire extending across North India, Pakistan and Afghanistan. Upon the death of her father Al Tumash, she wrote to the Abbasid Caliph Al Mustansir in Baghdad for permission to rule in his name. The permission was granted and Razia made the following proclamation in Delhi: “In the time of Imam al Mustansir, Ameer ul Momineen, Malika al Tumash, daughter of Sultan al Tumash, she who increases the glory of Ameer ul Momineen……”. She ruled as the executive and legislative head of the empire (with the advice of a Chief Kazi) for four years until the jealousy of men caught up with her and she was dethroned and slain (1240 CE). Similarly, Shajarat ul Durr ruled as the queen of Egypt from 1251 to 1252 CE. In the seventeenth century, a succession of six queens ruled Acheh in Indonesia.

Both history and custom support the position that a woman can act as a judge and as a head of state. This has been reaffirmed in modern times with the election of women to the highest executive positions in countries as diverse as Bangladesh,  Indonesia, Pakistan and Turkey. The Arab world is behind on this score, as it has been for centuries. The world traveler Ibn Batuta who toured much of Asia, Africa and Europe during the years 1332-1351 CE records how women enjoyed considerably greater freedoms in non-Arab Anatolia (Turkey), India and sub-Saharan Africa, even in the fourteenth century. There are historical reasons for these differences between the Arab and non-Arab components of the Islamic world. These I have covered in my books Islam in Global History (Amazon.com).

The Shariah, as implemented in the dynamics of human matrix, requires that the legislative, executive and judiciary space be completely open to women, as much as it is to men. Only when a woman takes responsibility for legislation that affects her, and for its implementation and execution, can she attain fully the exalted spiritual potential that divine compassion has bestowed upon her.