This paper seeks to highlight selective use of the Islamic Legal tradition to the manifest disadvantage of Muslim women and their human rights in legally pluralist societies such as Pakistan. It attempts to offer the contours of a framework for (re) claiming our position as equal, legal person ( de jure and de facto) , exploring why and how certain milestones of Muslim history are glossed over or forgotten especially those with a potential to empower women. It will be argued that while egalitarian notions of obligations and entitlements of all sections of society including women, was a central agenda of Islam, yet the embedded ness of elitist and patriarchal customary norms appropriated its implementation and discourse. I will draw upon some juristic concepts including ijtehad, ikhtalaf, takhayyur, and talfiq that mirror the tolerant and democratic nature of the Islamic legal tradition. I propose that students of Islamic law engage with these concepts as foundational instruments in advancing analytical critical thought in Muslim communities and to set some ground rules for a tolerant, non-discriminatory, democratic polity.

Unveiling “Unity in Diversity”: Some Glimpses of Islamic Legal Tradition:

Islamic law is not a monolithic concept and is susceptible to varying interpretations. This has been its tradition and history for well over 1400 years of its existence. There is no doubt that formative period displayed an environment of hostility between competing systems (for instance among the Medinan and Kufan schools); a highly expected outcome considering circumstances of origin of the various schools of juristic thought. Development of Jurisprudential theory in the late 9th century however contributed to a lessening of the tension between the different schools. By this time all schools of juristic thought had arrived at a general acceptance of a basic scheme of the usul ul fiqh or sources of law. Competitive hostility thus gave way gradually to a mutual tolerance, and lent impetus to evolution of some legal concepts that allowed respectful coexistence between the schools of thoughts in Islam. Plurality within the Islamic legal tradition was canvassed as a healthy sign and one which was celebrated within the Islamic legal tradition.

In the continuous endeavor of Muslim judges to apply principles of Islamic law to ensure Justice, Equity and good Conscience, a clear distinction arose between the theoretical, legal doctrine and the actual practice of Islamic jurisprudence. This resulted in a gap between the sharia as expounded by the classical jurist and the positive law administered by courts. The emphasis of Muslim legal philosophy has essentially been an elaboration and the “analysis of Sharia in abstracto rather than a science of the positive emanating from judicial tribunals.” Therefore after an initially stimulating era of independent legal and thought, intellectual stagnation set in, in particular at the theoretical level, creating a ‘mismatch’ between the rhetoric and reality of law. What has therefore been handed down as juristic legacy to succeeding generations of Muslims is not the ‘living’ normative and applicatory framework of Islamic law; only the fossilized theory of legal philosophy.

The decline of Muslim political power precipitated this trend and Muslim socio-legal and political thought became defensive, ‘fencing’ itself in an attempt to ‘protect’ itself from alien, foreign influences. At this juncture of Muslim history, the perception gained currency that in the post classical period of Islamic legal history, masters of the maddhabs(schools of thought) has settled all legal problems and therefore what remained for subsequent generations of Muslim was to emulate or copy. Hence the controversial position of the so-called ‘closure of the gates of ijtehad’.

Revisiting classical expositions of the various schools of juristic thought in Islam, it is evident that ‘doors’ of independent juristic reasoning i.e. ijtehad were never really closed. Qadis(judges) and muftis had to deal with new, current cases, and by definition any case that was even slightly different to an earlier one, involved interpretation of the religious text in Islam. Ijtehad therefore continued unabated, albeit in the guise of taqlid.

Taqlid or duty to follow is considered by most students of Islamic law as mere ‘imitation’ to emulate or copy. As a term of jurisprudence, taqlid may be used in the context of accepting someone’s intellectual authority. Reality of the Islamic legal tradition however shows that taqlid was employed by Muslim jurists to engage in juristic methods and processes that was anything but blind emulation. Whilst inhibiting independent legal formulations, taqlid allowed later day jurists a choice from among various views recorded in authoritative text. Thus, by applying the process of ikhtilaf, or the ‘unity in diversity’ doctrine, jurists of the various schools of thought as well as practitioners arrived at position that were as varied as the colors of the rainbow. The beauty however, of this divergence of opinion was that it was not hidden from view in an attempt to look uniform, but in the words of Gerber, “paraded with relish”.

But by far the most dynamic concept in the Islamic jurisprudence is takhayyur meaning the process of selection. As a term of jurisprudence, it has been used to consider possible alternatives from a range of juristic opinions on a particular point of law and with the intention to seek less restrictive legal principles in applications to issues arising. Takhayyur has been of enormous significance in developing a number of women friendly codes of family laws in Muslim jurisdiction. For example regarding circumstances where a married Muslim woman may seek dissolution of her marriage, the hanifi school is restrictive where the maliki school is flexible and allows a wife to seek dissolution on the grounds of cruelty of her husband. This was incorporated in the number of personal status laws in the Muslim world. Likewise, the hanbali doctrine of abiding by stipulations (based on the hadith of the Prophet Muhammad) led this school of thought to declare that the marriage contract could stipulate monogamy of the husband; the wife could choose the place of residence and so on. Examples of takhayyur includes the dissolution of Muslim marriage act 1939,the Moroccan code of personal status 1858, the Jordanian law of family rights 1951, Syrian law of personal rights 1953 and the Ottoman law of Family Rights 1917.

Talfiq translated literally as a ‘patchwork’, implies the process whereby Muslim jurists constructed legal rules by the combination and fusion of opinions derived from different schools of thought on a particular issue. An interesting example of talfiq is the landmark case of Muhammad Ibrahim v. Gulam Ahmed (1864) where a girl brought up as a Shafi’I married without her father’s consent. When the case came up in court, she declared that she had chosen to change her school of juristic thought to Hanafi School because Hanafi law allows an adult Muslim woman to marry without the consent of her guardian.

The previous section outlined some of the mechanisms used by Muslim jurists of the classical period of Islam to explore avenues of legal expression within an environment of egalitarian, tolerant and democratic legal framework. Islamic jurisprudence at this stage was inclusive and afforded multiple spaces for divergent opinions, without appropriating a ‘superior location’ for any single school of thought and belief. Jurists and judges alike struggled to seek out the most favorable legal position for litigants appearing before them.

But the inclination to engage across ideological divisions is a dissipating phenomenon reflected in the actual practice of contemporary Muslim communities and evident in the narratives of women’s lives presented below. These Muslim women articulated their rights and stated their case before state and society. Whether they succeed or not in their endeavor is not the point. What is important to bear in mind here is that these incidents demonstrate how individual women’s histories became transposed on the collective consciousness of women’s lives, rights and positions in successive generations of Muslim communities. How history makes selective use of memory and makes certain women and their actions invisible is highlighted in our narratives below. But, by deconstructing popular memory of these incidents and reconstructing them, I aim to present alternative readings of those narratives in an attempt to reclaim our entitlements as equal, human beings in contemporary Muslim communities.

1. Despite being a student of women’s human rights in Islamic tradition for well over 30 years I must confess that it was less than a decade ago that I stumbled upon a story of the daughter of the Prophet Muhammad, Fatima Zahra instituting what must surely be the first inheritance law suit in the Muslim world. She as her illustrious father’s heir, sought a share in his worldly goods but was told that since she was the daughter of the Prophet Muhammad and his legacy was for entire humankind, she could not lay claim to his possessions. How many Muslim women have heard of this case; has it ever been flagged up as a course of action, i.e. claiming one’s inheritance, for Muslim women? Why does it not figure in Muslim history as indicative of the rights of women in Islam? What are the lessons learnt for women claiming inheritance rights from their natal families?

2. The second story that I have read and I am sure most persons in the audience today have come across is the story in either an Islamic studies course book or Urdu reader in most Pakistani schools. While the title of the story benignly read “Battle of the Camel”, it was actually an account of a battle led by the first Muslim woman insurgent in Islamic history, Aisha, wife of the Prophet Muhammad. It is a rather bland and ‘defensive version of the unfortunate civil war where the wife of the Prophet went into battle against his cousin and son-in-law, Ali, the fourth Rightly Guided Caliph of Islam. As a child all I ever wondered reading this story was why on earth it is called ‘Battle of the Camel why was it not named after the woman who rode that camel and was the ‘general’? Only years later did it dawned upon me that its purpose was to hide from history that a Muslim woman has taken a controversial but decisive political and military initiative. The incident has been glossed over and made ‘invisible’ to succeeding generations of Muslim women to prevent any repetition of that fateful war named after an animal but not the woman who rode it and commanded thousands of soldiers!

3. The Caliph Umar ibn al Khittab, one of the strictest administrators in the Muslim history, announced lowering of dower (mahr) for Muslim women. He was promptly and fearlessly challenged by them, questioning the basis and authority on which the caliph proposed to deprive Muslim women of that which, in their eyes, God had granted them. The caliph thereafter reconsidered his decision.

4. the fourth narrative relates to Sakina, the great granddaughter of Prophet Muhammad. A renowned beauty and highly intelligent woman of her time. She wrote a number of stipulations in her marriage contract including the condition of monogamy upon her husband as well as the right to choose the place for their marital home. Why has this marriage contract failed to acquire a place of pride in Muslim women’s history as part of her precious heritage, to claim under the Islamic legal tradition? In the context of Pakistan in particular, why is clause 17 of the nikahnama(marriage contract) under the Muslim Family Laws Ordinance 1961 that reads: “special conditions, if any”, left blank in the vast majority of contracts? What’s more, clause 18(delegation of right of divorce to wife and conditions thereof) and 19(restrictions imposed on husband’s right to unilateral divorce) are simply crossed out!

5. On Sunday, the 29th November 2003, some Pakistani newspaper carried a decision of Lahore High Court that an adult Muslim woman may marry of her own volition without the consent of her parents. Justice Asif Saeed Khosa observed that the courts had no authority under Islamic jurisprudence and under the Constitution of Pakistan to declare marriages of choice by adult girls invalid. The court quashed the first information report (FIR) lodged against the woman and her husband by the girl’s parents under the Hudood law, terming it baseless and unnecessary. The advice of the court to the parents was not to indulge in character assassination of their own daughters should they choose to marry a person of their own choice. It is a well documented fact that 95% of women languishing in Pakistani prisons today are their, because their close relatives have accused them of illicit sexual relationship. On investigating and trial, most charges are proved false and after loosing precious years of their lives, these women abandoned by their near and dear ones and shunned by society are released from prison. Who can they hold responsible for this grave miscarriage of justice? The state and its institutions, their own families or society? Or should they seek an answer from the religious tradition that supposedly brought about their fall.

6. In researching for this paper, I came across the Islamic law of legitimacy. I discovered that Islamic law protects women from the stigma of committing zina by extending the period of gestation of an unborn child well beyond the medical maximum. Hanafis concede a gestation period of up to 2 years between conception and a birth of a child. Hanbali Shafi’I and Maliki up to 4 years (Malikis up to 5 years). The law of evidence of Pakistan law, section 128 of Qanun-e-Shahadat order 1984 also provides that a child born within two years after dissolution of marriage, the mother remaining unmarried, shall be conclusive proof of legitimacy the a child. Yet the Hudood ordinances 1979 is used by thousands of parents and others to tarnish the honor and reputation of the very women Islam is meant to protect. The ‘ethical’ mismatch between the Hudood ordinance 1979 and the law on legitimacy belies belief. We like to pride ourselves in considering women our ‘honor’ (izzat), yet are happy to implicate them in zina cases and declare them disreputable women in the eyes of the law and society if they marry without consent of their male guardians.

7. In the Muslim Diaspora, and I can in particular refer to the UK and Scandinavian countries, the protective hand of the Islamic legal tradition appears to have all but disappeared and the politics of identity are being played out in the arena of women’s rights and position in Islam. Two examples of on-going controversy will suffice here: a civil ceremony of marriage is essential to create a valid legal relationship of husband and wife in these jurisdictions. But a number of Muslims, especially those who marry women from the country of origin, undergo what they like to term an ‘Islamic’ marriage to the exclusion of a civil ceremony. In a number of cases the husbands abandon their spouse or re-marry. When these wives approach state institutions for support, they find that in the eyes of the UK/other jurisdictions, they are not married.

8. Likewise I have come across numerous marriage contracts in UK, where the dower or mehr, defined in Islam as money or other property given by the husband to wife as a mark of respect, is settled at a meager amount (£50 or £101). This is quite contrary to the purpose of the institution of dower, i.e., to give the wife an economic head start and sense of security in her new family. All she gets, in the words of one woman, is money that will ‘only buy me a pair of shoes’! Questioned as to the reason for such a paltry sum as a dower, the women are told: mehr (dower) is only a token gesture; respect cannot be reflected in money or property! Well thought out clever words, but resulting in numerous difficulties for divorced wives who have no legal recourse to any resources in the absence of a mehr (dower) that courts can enforce in their favor.

9. The divorce scenario in non-Muslim western jurisdictions too, is bleak. Even though a Muslim woman obtains a divorce through the civil process of her country of residence/nationality, she is made to believe that this is not a valid divorce and she must receive an Islamic divorce, i.e. pronouncement of talaq from the husband. This misplaced belief results in untold miseries for numerous Muslim women who suffer in limping marriages due to a misrepresentation of Islamic law on the subject. My work in progress, trying to establish through research from classical Islamic law and practice, right of Muslim women to seek divorce, is a small intervention in this reclamation of our histories and rights project.

In most Muslim jurisdictions a discussion on women, Islam and human rights invariably open with a blanket statement that is meant to initiate and conclude the debate thus: “Islam has given women all the rights; we need not look any further”. The speaker then ventures to describe an ideal theoretical situation that bears little resemblance to the actual lives of Muslim women today. Very few have courage to pose the question: Why is the reality of Muslim women’s lives so dismally different from the glorious ideal? Why are Muslim women at the bottom of the statistical ladder n terms of literacy, health indicators, poverty and employment?

What is not acknowledged by many Muslim today is that we have lapsed into an acceptance of status quo, a situation where social, economical and political disparity has taken over our capacity for independent thought. We feel that there is more security in treading familiar terrain rather than embarking on the challenging task of separating the egalitarian tradition of Islam from its cultural, elitist manifestation. The theme of this paper is (re) claiming for Muslim women the right to engage with their religious tradition on their terms and through their life experiences. I have tried to highlight the fact that diversity in opinions, legal formulations and legal practice is the established component of the Islam tradition. In other words, democratic norms of multiple choices are inbuilt into the scheme of Islamic law and justice. The concepts I have touched upon are juristic methods, tried and tested over many centuries and not once I have had any difficulty in ‘discovering’ despite sustained efforts of ‘establishment’ Islam to keep these well hidden from any inquisitive, roving Muslim eye! The exploratory journey and search for the above cited narratives helped to unfold some long forgotten strands of the history of Muslim women within the Islamic legal tradition.

The paper advanced the view that women in contemporary Muslim societies are able to contextualize their human rights within a historical perspective without having to re-interpret the religious text. Application of the religious text by successive Islamic communities have displayed sufficient dynamism to dispel the belief that the sharia is anything but a living dynamic ever flowing and responsible organism, sensitive and susceptible to an ever changing world.

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