Human Rights &Women in Islamic Law

Human Rights &Women in Islamic Law offered by: Prof.Dr.Muhammad Zia-Ul-Haq Dean Faculty of Shariah & Law International Islamic University, Islamabad

Religions & Women Rights The issue of women’s human rights has become a separate category of analysis in relatively recent human rights scholarship and is at the centre stage in the discourse on human rights. Religion plays a pivotal role in the way women are treated around the world, socially and legally. ‘The two major challenges to all human rights and especially those of women in the twenty-first century will be the forces of religious extremism and economic globalisation’. Some Scholars argues that: ‘religious fundamentalism poses the most acute problems for women’s equality’.

Islamic Law & Women (Western Perception) • It is believe in West that Islamic statutory laws practiced in many Muslim jurisdictions wherein men and women are treated unequally. The general areas of tension between human rights standards and Islamic law (as interpreted and practiced by Muslim states) are the unequal treatment of women and religious minorities, freedom of religion.

Opinions of Muslim Scholars Regarding Women Rights In Islamic human rights scholarship, a distinction should be made between the positions of Islamic states and that of the scholars of Islam. The scholars of Islam may be broadly divided into following categories: 1-Modernists, 2-Conservatives 3-Fundamentalists or Integrates

Compatibility of Islam with human Rights • Is Islam compatible with human rights? This fundamental question has generated a large body of literature addressing the question from different, often opposing, positions. The literalist reading of Islam emphasizes the gaps between the limits of tolerance and acceptability in the Quràn and Hadith on the one hand, and internationally-sanctioned standards for human rights. The status of women and religious freedom are often the two key area of contention.

literalist reading of Islam • It is perhaps ironic that the literalist reading of Islam has been adopted by two very distinct groups. On the one hand some traditionalist Muslim leaders, have taken up a tough attitude toward the idea of a human rights regime because that is seen as nothing more than a cover for a neo-colonial attempt at regaining domination over the Muslim world by Western powers.

literalist reading of Islam • The fact that the normative framework of the human rights regime emerged in the halls of the United Nations where Western powers tend to set the agenda is seen as proof by the human rights skeptics of a Western conspiracy. And by some the principles enshrined in the Universal Declaration of Human Rights were seen as contravening the Shari’a. Accordingly, this Declaration (adopted in 1948 by the United Nations) was rejected by Saudi Arabia as un-Islamic

literalist reading of Islam • This perspective is shared by groups like the Taliban in Afghanistan, or the trans- national Islamist group Hizbut-Tahrir which argue that Islamic injunctions in the text are perfect and eternal. Adopting anything that contradicts or deviates from them, therefore, is forbidden. The above position rests on the belief that the Quràn and Hadith are immutable. Emphasizing the timeless and eternal nature of Islamic junctions presents a challenge for its application in the contemporary era, some fourteen centuries after their articulation.

literalist reading of Islam • Indeed some Scholars use the very point regarding the temporal modification of Islam to criticize ruling regimes. For example, the famous father of Islamism SayedQutb, rejected the Egyptian regime for allowing society to astray from the path of Islam and permitting Islam to be contaminated by contemporary influences

literalist approach to Islam and human rights and West • In a mirror image of this literalist approach to Islam and human rights, critics have presented the two as poles apart and insisted on the incapacity of Islam to reform itself. Authors such as Bernard Lewis and Daniel Pipes have argued that Islam contradicts modern human rights norms and conventions as it reflects the norms and conventions of the seventh century civilization of Arabia. In an ironic twist, they add their voice to the literalist Islamic approach by insisting on the static nature of Islam.

Approach of Bernard Lewis • Lewis has argued that there is an inherent resistance to democratic governance as the notion of a ‘corporate or majority decision’ through electoral means is an ‘alien’ concept in many Islamic societies, with violent contestations, in this view, seen as the norm . Echoing the literalist approach to Islam, Lewis insists on the incompatibility of Islam and modernity.

Approach of Daniel Pipes • Daniel Pipes, former appointee by the Bush Administration to the United States Institute of Peace, leads the charge in seeking to highlight what he claims is the ‘historically-abiding Muslim imperative to subjugate non-Muslim peoples’ (2006). The conclusion Pipes draws is that ‘ultimately, there is no compromise’ with Muslim communities and what he sees as the inherent absolutist drive of the religion, one that, in his own words, asks the question of whether ‘the West [will] stand up for its customs and mores, including freedom of speech, or will Muslims impose their way of life on the West?’

Opinion of Abdullah Saeed-1 • Abdullah Saeed, among others, has argued that there is nothing certain and undeniable about the literalist approach. In recognizing that, Saeed advocates recognition of human agency and an acknowledgment of the context to help give meaning to the text. Such contextualization offers new opportunities for exploring the relevance of Islam to contemporary conditions and the challenges faced by Muslims today.

Opinion of Abdullah Saeed-2 • The above recommendation holds significant promise on the question of compatibility between Islam and human rights. An increasing number of Muslim thinkers in modern times have tried to move away from ideological rigidity, emphasizing instead the essence and core values embedded in the holy text. In this perspective, restrictions on women and religious freedom which are applied in most Muslims societies, are challenged as contradictory to the essence of Islam.

Opinion of Abdullah Saeed-3 • Accordingly, Islam is seen to be founded on the principle of unity between God and the humankind; piety and personal devotions are key to the ideal Islamic state. This approach places the individual, the Muslim believer, as the conscious actor on the centre stage, and may therefore be called the humanist approach. In this vein Ali Abootalebi, a former associate of the Iranian President Muhammad Khatami, has argued in favor of ‘freedom of thought and expression, including freedom from government control and suppression’

Opinion ofAbdullah Ahmed An-Na’im • He has argued for the religious neutrality of the state in Muslim communities. For An-Na’im, Islamic thought can be injected with renewed vitality and flexibility through the process of ijtihadas a means to maximise the ability of Muslims to exercise their human agency. In other words, this perspective focuses on the need for Muslim communities to reconcile with the human rights regime, not to manipulate the concept of human rights to further particular social interests. This allows for Muslim communities to engage with the human rights regime on their own terms. This also helps undermine the view of human rights as a ‘Western’ concept imposed on Muslim communities. This approach contains significant implications for the idealized Islamic state.

KhaledAbou El Fadl, s Humanist Approach-1 • In the words of KhaledAbou El Fadl, the Quràn ‘does not specify a particular form of government’ (2004: 5). In a direct challenge to the literalist reading of Islam especially that adopted by Islamist groups, El Fadl insists on the importance of values: justice, consultative government, mercy and compassion are essential values for Muslim policy.

KhaledAbou El Fadl, s Humanist Approach-2 • The humanist approach in Islam offers significant promise, not only in Muslim majority societies enthused by the prospects of establishing an Islamic state but also for the Muslim Diaspora. One of the challenging features of globalization in the latter part of the twentieth century has been the movement of a significant number of people from the Muslim world to territories that have traditionally been regarded as foreign. Muslim settlements in Europe, the United States, and in subsequent years Canada and Australia, have presented difficult questions to migrant communities and their hosts regarding the precedence of one rule over another.

Humanist Approach • In other words, to what extent should Muslim minorities in the West follow and obey secular law? In the literalist perspective, the dichotomy of Shari’a versus secular law is absolute. But the humanist approach to Islam moves beyond the apparent dichotomy and questions the assumed contradiction between the two.

The Opinion of Tariq Ramadan • Tariq Ramadan, perhaps the best known author on this matter, has argued that the Western-style secular law is very much inspired by the same core values that rest at the heart of Islam. Writing on the question of being a good citizen and a Muslim in Europe, Ramadan has emphasised the principles of fairness, equity and justice as common to Islamic jurisprudence and secular law (which is ironically inspired by Judea-Christian traditions). Consequently, he sees no contradictions between the two

The Opinion of Tariq Ramadan • In this approach, Muslims in the West can abide by secular rules that govern their country of adoption without fear of violating Islamic principles. The liberal and tolerant nature of European states facilitates this interpretation because it allows significant freedoms to individuals to pursue their interests, beliefs and traditions. In other words, individual liberties enshrined in liberal democracies offer sanctuary to the Muslim diaspora.

Challenges to the Humanistic Approach • It is important to note here that Western liberal democracies meet the qualifications set out by El Fadl for legitimate political authority. In some cases, however, the humanist position on the compatibility of secular law and Islamic principles faces serious challenges, as became evident in France under the new law banning hijab at schools. This ban, which came into force in 2004 appeared to reverse the tolerant traditions of France and put Muslim girls wearing hijab and their families in a difficult dilemma: either remove the hijab to attend school or keep the hijab and be excluded from public education.

Challenges to the Humanistic Approach • Some French Muslims have responded by weighing the costs and benefits of the alternatives and opted to stay in the education system, even if that means removing the hijab.3 For most French Muslims, however, that is not an acceptable compromise. Islamic reformism which is at the heart of the humanist approach is still in its infancy and stumbling from one challenge to the next.

Challenges to the Humanistic Approach • An ongoing issue that is still to be addressed by reformist thinkers in Islam is the position of non-Muslims in Muslim societies. To what extent does the humanist interpretation of Islam, which emphasises the intrinsic values of individual piety and freedom to pursue a personal path to divinity may be applied to non-Muslim individuals and minority groups? More specifically, what role is set aside for non-Muslims in Muslim majority states?

Present Muslim Societies and Human Rights • The question of compatibility between Islam and human rights in Muslim majority states is an urgent and topical issue, partly because most such states in the Middle East suffer under the yoke of authoritarian rule while the United States has made democracy promotion and protection of human rights its top mission in this oil-rich region. The most immediate beneficiaries of any move towards greater freedoms tend to be Islamist groups in opposition, which might explain why the latter has adopted a conciliatory (sometimes enthusiastic) position towards human rights, freedom and democracy.

Present Muslim Societies and Human Rights • Appeals to values of liberalism and human rights by Islamist groups have precipitated a debate in policy and academic circles about the relationship between political expediency and principles. Are Islamists using human rights as a pretext to push their own agenda that is inherently intolerant and totalitarian? Or in the words of Neil Hicks, Director of the Human Rights Defenders’ Protection Initiative at the Lawyers Committee for Human Rights in New York ‘is it conceivable that we might have human rights activists who are Islamists, that is to say Islamist human rights activists?’

Present Muslim Societies and Human Rights -3 • There are no easy answers to these questions, which helps explain why the debate appears to go round and round with no end in sight. One response that is often favored in Western policy circles is that Islamist groups such as Hamas and Hizbullah or the Muslim Brotherhood are only interested in human rights because they draw immediate benefits from them. There is no doubt that an effective protection of human rights, which entails the promotion of individual liberties, offers direct benefit to Islamist groups that have been pushed to the margin by authoritarian regimes. The Muslim Brotherhood in Egypt is ready to burst out on the political scene the minute Hosni Mubarak’s regime loosens its grip on power.

Women Rights and Islam

The Role of Muslim Women in Early Islamic Period • According to the traditions of Shi’s Muslims, the revolt of Imam Husayn against the tyrannical Caliph Yazid in 680 C.E. ended in the greatest tragedy in the history of Islam. Not only was the Prophet’s grandson killed along with his male followers, but the women of his family were stripped of their veils and paraded publicly in disgrace. Brought to the presence of the caliph in Damascus, Husayn’s sister Zaynab remained defiant, openly challenging Tazid’s authority and lamenting the death of her brother, who was the rightful inheritor of the authority of the Prophet. So striking was her indignation that the caliph was shamed and let her and the other depart in peace.

Present Picture of Women in Muslim Societies • The standard picture of the Muslim woman shows someone who is oppressed by men, restricted to home, and veiled in public, although this image is admittedly anonymous and not related to any particular location. The extraordinary recent behavior of the Taliban in Afghanistan, who denied women education and even the most basic rights, has encouraged the impression that Islam is dedicated to the oppression of women. How can we reconcile these conflicting depictions of Muslim women?

The Role of Muslim Women in Early Islamic Period-2 • This dramatic picture, which has been evoked by many poems of lamentation, presents a powerful reminder of the important roles played by women in the early Muslim community. Women have never been ciphers or nonentities in Islamic history. The wives of the Prophet Muhammad were his partners and supporters in the creation of the new society, and the continued to have eminence after his death. ‘

The Role of Muslim Women in Early Islamic Period -3 • A’isha is noteworthy for transmitting more than 2,000 hadith reports from the Prophet and she was the principal leader of an unsuccessful revolt against ‘Ali. The prominence of women in early Muslim society stands in contrast with the image of Muslim women today, at least as they are perceived in Europe and America.

Present Picture of Women in Muslim Societies • As mentioned earlier, Islamic law in theory provides resources for women, such as property rights, which were not available to European women until very recent times. Yet in practice the complex application of Islamic law was filtered through multiple levels of custom and tradition, so that ethical principles of equality between the sexes all too frequently were sacrificed for the benefit of male privilege. The imposition of patriarchal authority over women is hardly unique to Islamic civilization.

Women and Ancient Civilizations • Aristotle, it must be remembered, regarded women as natural slaves. Despite statements about gender equality in the New Testament there are also strong traditions that for centuries have excluded women from positions of authority in Christian churches. Misogyny and the assertion of men’s authority over women is, in fact, characteristic of the history of much of the world, including china and India. Disentangling the roles of the ethics of gender and patriarchal history is a task that now is the name of feminism.

Effects of European Colonialism and Women Rights-1 • What makes the discussion of gender relations in Islamic cultures especially tricky is, once again, the effects of European colonialism. By the late nineteenth century, Europeans had developed a number of arguments to demonstrate the cultural inferiority of the nations of the Orient, principally Muslim countries., the scientific language of racial categories and the alleged evolutionary superiority of Europeans were key elements in the ideology of colonial ascendancy. A new and surprising weapon in the colonialists’ arsenal was the language of European feminism.

Effects of European Colonialism and Women Rights-2 • However uncomfortable Victorian officials may have been with feminist agitation for equal rights at home, they eagerly and hypocritically criticized Asian and especially Muslim men for their bad treatment of women (although some colonial administrators, such as Lord Cromer and Lord Curzon, were active opponents of the British suffragette movement).

Effects of European Colonialism and Women Rights-3 • By maintaining that Islam was essentially oppressive to women and by linking Muslim backwardness to the practice of veiling women, colonial administrators could justify their rule over Asia and Africa, since they were the bearers of enlightened modernity. At the same time, they maintained that Muslims could only become civilized if they abandoned veiling – that is, if they abandoned what were believed to be essential practices of Islam.

Actual Reality-1 • The same rhetoric of condescending shock about the veiling of Muslim women continues to be applied today, despite less than perfect gender equity in Europe and America. When we look, however, at the authoritative Islamic scriptures, we can see prominent resources for an ethic of gender equality. In Christian and Jewish circles, it is only in relatively recent years that the gendered language of the Bible has become an issue, leading to new translations that do not automatically assumes the male gender as normal.

Actual Reality -2 • It is striking fact of the history that among all the great religions of the World ,Islam made a very comprehensive survey of the position of the women in Society, and laid down a very detailed legal framework of her rights and privileges. Prior to the advent of the Islam, the Arab women enjoyed no rights. They had absolutely no share in the property left behind by their parents. Their position in the society was that of mere chattel or marketable commodity.

Actual Reality -3 • Islam came to set that: [and women shall have rights similar to the rights against them, according to what is equitable] Al-Quran 2:228. • Although modern European and Americans assume that Muslim women are invariably oppressed, it is by no means clear that Muslim women have always suffered from disadvantages in comparison with Christians or other.

Actual Reality -4 • This is an instance in which very recent advances in Europe and America are some-how assumed to be an essential part of the West. English women did not have full property rights until the Married Women’s Property Acts of 1870 and 1882, yet under Islamic law, Muslim women have been guaranteed inheritance and property rights since the seventh century.

Advancement of Islam in Women Rights • English women were still chattels of their husband or father when Lady Mary Wortley Montague traveled to Constantinople in 1716 with her husband, the British ambassador. She was amazed to meet their Ottoman women of the nobility who owned large estates and managed their own property without male interference. Lady Mary even found the veil to be a liberating device that freed women from the prying eyes of men.

Western Hypocracy • Certainly misogyny and unequal rights for women are features that can be found in abundance in the societies of North Africa, the Near East, and much of Asia, but can we honestly say that America and Europe are free of these problems? It is easy and hypocritical to accuse other societies of abuses and inequities when injustices still exist in our own culture. The image of the oppressed Muslim woman can all too often serve as another self-righteous reason for Europeans to congratulate themselves on their superiority.

Image of Islam and the West-1 • In all the images of Islam that are commonly circulated in European and American culture, little can be found that is positive. Is it possible for an entire civilization to have such negative features, enduring more than 1,000 years across half the world? Although as Carl W.Ernstfeel in his book Rethinking Islam in the Contemporary World. but feel that there is a mechanism of projection operating here, along the lines spoken of by Jungians, in which one’s own negative characteristics are projected onto others.

Image of Islam and the West -2 • There is certainly plenty of evidence of fantasy throughout the history of anti-Islamic stereotypes. Muslims are considered to be violent, yet we do not hear any similar accusations about intrinsic violence in Christianity or European culture; what was it about Christianity that motivated the world conquests of the nineteenth century or more recent atrocities such as the 1996 massacre of more than 6,000 Muslim men and boys carried out in a single day by Eastern Orthodox Serbs in Srebrenica?

Image of Islam and the West -3 • Muslims are considered to have dysfunctional roles for women, yet that emblem of Western technological superiority, the Internet, is saturated with pornographic mages, and the sexualization of women is omnipresent in television, newspapers, and advertising. Is the West so confident of its relations between the sexes?

Image of Islam and the West -4 • Everyone needs to become educated as a media critic nowadays, because the recycling of sensational images is what the communications media love most, especially when conflict is present. Islam is a subject that most Americans and Europeans have experienced only through these negative images and stereotypes. Clearly the time has come to go beyond those images and encounter real human beings.

Human Rights &Women in Islamic Law