Worldwide: Of laws, religion and women's rights: women's rights in Muslim laws (Sharia)

المصدر: 
Ayesha Imam
Women's rights in Muslim laws is a topic that has become more and more sensitive with the passing of Sharia Acts in several states in Nigeria. This began with Zamfara State in November 1999, but presently also includes Niger, Sokoto, and Kano.
Published as Women’s Rights in Muslim Laws (Sharia) in The Place of Women Under Sharia CRP/FNS Lagos, 2000, pp. 16-31.

Women's rights in Muslim laws is a topic that has become more and more sensitive with the passing of Sharia Acts in several states in Nigeria.This began with Zamfara State in November 1999, but presently also includes Niger, Sokoto, and Kano - and others are likely to come soon.
While some argue vehemently that Sharia Acts will protect women, others argue equally vehemently that they will result in restricting women and ignoring women's rights. Unfortunately, the increasing sensitivity and controversy of the issue has not been matched by an increase in the clarity of the terms of discussion. In this contribution, my aim will be to help provide some clarity.

What do we mean when we use the term law?

It is important at outset to distinguish what the issues are, and to define one's terms. The word law can be used in several different ways. These include:

a) Statements generalising invariable patterns of occurrence in the physical world. These are often termed natural laws. One example of this is the law of gravity that holds, for instance, that when a ball is thrown up, it will come down again.

b) Religious injunctions about what to believe and think and how to behave. These are usually referred to as divine laws and revealed by the deity (Allah, God, Jehovah). One example for most religions, Islam included, is the injunction to do good. If one does evil instead, one will be judged and punished on the Day of Judgement by the deity.

c) Socially regulated rules and regulations to regulate behaviour. There are two types of these.

The first are norms and customs, which may be unwritten and tacit until infringed upon. Sanctions of these are usually informal. An example of this may be that in most African societies, one offers and receives items with one's right hand. If someone uses their left hand they may be scolded (if young) or treated with disdain and thought to be rude (if older).

The second are formally elaborated rules, infringements of which society punishes through formal state systems such as police and courts. An example of this might be that if a person is caught stealing, he or she can be tried, convicted and imprisoned for theft. These are laws of society.

This paper will be dealing mostly with the last type of law - formal laws of society.

Sources of Law in Nigeria

In Nigeria we have several distinguishable sources (systems) of law. These are:

1) statutory laws - these include all the decrees passed by military regimes, as well as the statutes of civilian regimes since Independence.

2) common law - those things that by long-standing habit have come to be law - usually through being so recognised in a court case. Unless otherwise repealed or amended, both statutory and common law include the statutes and common law of the United Kingdom up to the time of independence.

3) explicitly religious laws (Muslim laws) - in Nigeria Muslim laws follow the Maliki school. Since the early twentieth century, until recently, Muslim laws covered mostly personal law in Northern Nigeria.

4) various systems of customary laws - these include all the laws of many diverse peoples in Nigeria - not only Igbo or Yoruba, but also, for instance, Itshekiri, Tiv and Igala amongst many others. These also have covered largely personal law and community-derived property (especially land) during this century.

It is often thought that these systems of laws in society are very different, but actually they have many similarities. First, all of these are formally enforced or infringements punished by a formal court system, which stretches from area, customary and magistrates' courts in the first instance, all the way up to the Supreme Court. And this formal court system, regardless of the system, of law is staffed, paid for, and judgements enforced by the Nigerian state.

Second, the sources of elaboration of each of these systems of law are human beliefs about how societies should be organised and regulated. And, for each of them the process of elaborating laws in similar. In statutory laws it is obviously the ideas of the legislators about how to organise things which define the content of statutes, whether civilians democratically elected or military and other authoritarians. With common law it is a combination of what people are already doing (i.e. living their lives according to their beliefs) and the recognition of this by judges. With customary laws, it is the way each people (ethnic group or nationality) understand their social world which is reflected in their ways of organising marriage, divorces, kinship, inheritance and so on - and these, over time, come to be recognised as the customary laws. With religious laws, it the reasoning and opinions of religious legal scholars who elaborate laws for the believers in their religions. For instance, scholars like Malik b. Anas (d.796) and Abu Hanafi (d.767) elaborated laws for Muslims - the believers of Islam, their religion. These were the founders of the two oldest schools of Sharia or Muslim Laws.

Distinguishing Divine Law and Religious Laws

One difficulty is that very often people use the term law without considering which type of law they are dealing with. Hence, when people say religious laws (such as Sharia or Muslim laws - or for that matter Canon or Christian laws) the implication is that they are referring to laws which are divine as well as regulated by some social system. But different types of law have crucial differences.

In particular, neither divine law nor natural law require any human agency to enforce them. Whether or not any human being does anything, leaves that detach from trees will fall to the ground. If one is a believer, one knows that whether or not one gets away with not doing good in one's lifetime, after death there will be a reckoning. In contrast, laws of society are elaborated, enforced and punished by society itself. Unlike divine law, laws of society are not and cannot be left to their own devices or a higher agency to regulate and enforce.

Secondly, divine law, being God-given, is timeless, unchangeable and unchallengeable. However, laws elaborated by humans are necessarily contextual, historical products, and as such, can be both changed (or developed) and challenged.

Hence in the context of this paper, it is important to distinguish what may be said to be Islamic and divine, with what is Muslim and therefore social and historical. That is, one needs to distinguish between Islam - the way of Allah - on the one hand, and, what Muslims do - those who believe in Islam and attempt to practice it on the other. Islam is not questioned. However, what Muslims (human fallible people) make of Islam can be. In other words, how human beings understand and apply Islam in their contemporary realities and daily lives can be seen to be often contentious (or at the least an area of debate). This is so, not only in the present but throughout the past history of Muslim communities also.

Evidence of this can be found in the fact there is more than one school of Sharia. The four main schools that exist today were formed through the personal allegiance of legal scholars or jurists to the founders from whom each school took its name - Hanafi, Maliki, Shafi and Hanbali. Each school had its own specific circumstances of origin. For instance, both Hanafis and Malikis are the representatives of the legal tradition of a particular geographical locality – the former in Kufa, present-day Iraq, and the latter in the Arabian city of Medina. The two later schools, following Abu Hanifa and Al-Shafi developed precisely out of a controversy in jurisprudence (i.e. human reasoning over law). Consequently each school has variations according to the cultural, political and socio-economic contexts in which they were developed and the philosophy of reasoning that was accepted.

It is noteworthy that even these oldest schools of Sharia did not exist until many decades after the revelation of the Qu'ran or the Prophet's death. Hence they are clearly not direct divine revelations from Allah, but mediated through human judicial reasoning (ijtihad in Arabic).

Thus the schools of Sharia are religious laws. They cannot be divine law because although they draw upon divine revelation, they are not divine themselves. Hence although religious laws may draw their inspiration from the divine they are not the same as divine laws, precisely because they do rely on human agency to elaborate, implement and enforce them.

Common Myths About Muslim Laws

The confusion between Muslim laws as religious laws (made through human intervention and therefore susceptible to context and change) and divine law (God-given, immutable and unchangeable) has led to a number of myths about Muslim laws. The most common myths are that: Muslim laws or Sharia means divine law; which comes directly from Allah; which is therefore the same for all Muslims and is thus a unitary legal system where all regulations are known to all good Muslims; and which must therefore be accepted unquestioningly. These myths have had unfortunate consequences for the potential in Muslim laws to take account of equity and community needs, and therefore also for women's rights, amongst other things. Thus what has happened is that some provisions about women's rights, developed in the context of the Middle East in the eighth to tenth centuries of the Gregorian calendar, some of which were progressive in their time, are now being held to be divine and unchangeable.

The first myth
is that sharia means divine law. In fact, sharia is simply the Arabic word for law, deriving from the root 'the way'. And even today not all Arabs are Muslim.

The second myth
is that sharia comes from directly divine revelation. It assumed often that it is largely laid out in the Qu’ran in an unproblematic fashion, with the sunna to draw upon also. However, the Qu'ran is in the language of revelation - necessarily mystical. Furthermore, it is in seventh century Arabic. It is clear from exegetical writing over the centuries that even those who are expert in Arabic have not agreed on the final definitive meaning of verses in the Qu'ran. If many Muslims accept one scholar's tafsir (exegesis) as authoritative, yet others will accept that another scholar is more accurate.

Furthermore, the Qu'ran contains over 6,000 verses. One tenth of this, about 600 verses, deals with spiritual obligations such as prayer, fasting and pilgrimage. Only around 80 verses deal with legal provisions per se. These have often to do with marriage and inheritance, most of which were revealed in response to specific issues of the Arab community in Medina. The corpus of Muslim laws is of course very much broader and wider in scope than this. Hence it has been suggested that if Allah had intended to provide a comprehensive legal code for all times and places, He would have done so. Muhammed Azad argues that the limited scope of legal provisions in the Qu'ran and the Sunna are not accidental, but meant precisely to avoid legal and social rigidity.

The second source of sharia is the Sunna, which is based on the hadith, the traditions of the Prophet. It is known that many of the hadith are apocryphal or worse, motivated by inter-sect and dynastic rivalries. Buhari, Muslim and other collectors of hadith developed a methodology to rank the trustworthiness of hadith. However, many scholars - as long ago as Ibn Khaldun - have criticised this methodology. Critics argue that the methodology concentrates on isnaad (genealogy or line of transmission), and seems to have ignored matn (content). Hence there are many contradictory and inconsistent hadith. This is a point particularly significant for women's rights. Many of the hadith that have resulted in restrictions in rights for women are known to be inconsistent with surahs in the Qu'ran or other hadith, and/or they were narrated by only one person, and he known not to be close to the Prophet, and, to have falsified issues to boot (see Fatima Mernissa, Riffat Hassan and Leila Ahmed, for instance).

A third source of sharia is ijma - consensus. Here too there is divergence - about whether this consensus is only that of those who are deemed learned scholars, or the more democratic position that it is the consensus of the whole community. Whichever of these positions, it has to be recognised that consensus can change over time. Hence by implication sharia must be able to change over time also - and hence is not immutable divine law. For instance, Hussein points out that the Qu'ran permits lex talionis - the retribution of an eye for an eye (surahs 2:178, 5:45, 16:126) but the laws of current Muslim states - whether in conservative states like Saudi Arabia or radical Islamist states like Iran - do not allow citizens to take the law into their own hands and do so. This he says is because lex talionis is only appropriate for societies without a centralised state. This is therefore a clear example of a change in sharia, even where the Qu'ran permits an act. Similarly slavery is banned in Muslim states, although the Qu'ran permits it. A fourth source of sharia is qiyas - analogical reasoning.

However to derive laws from the Qu'ran and/or the sunna requires reasoning - ijtihad. An examination of early Muslim legislative history makes it clear not only that this took place that but also it was a valued and recognised tool of jurisprudence. Early Muslim jurists worked to meet the changing needs in each generation, political and geographical areas through fresh ijtihad within the context of developing Muslim laws. Amongst the principles to be borne in mind were istihsan (equity) and istihsal (the needs of the community). One Caliph, for instance, abridged the penalty for theft from amputation of the hand because of famine and poverty. It was recognised in that 'golden period of Islam' that there were legitimate variations in sharia, based on context - and therefore that sharia is not directly divine and unchangeable, but must be subject to development and change.

The third myth
is that being divine and eternal, sharia is a single unitary system where all provisions are applied in the same way by all good Muslims throughout the world. In fact, in both theoretical concept and empirical reality, sharia varies tremendously from place to place and even within a single locality, sharia also varies over time.

It has already been pointed out above, that the very existence of four recognised schools of Muslim law is evidence that sharia is not unitary law. Furthermore, although only four are currently accepted, there were once at least 19 major schools of sharia. While some argue that the recognised orthodox schools of sharia (the four sunni schools already mentioned and the Ithnar Azari of orthodox Shias) have little variation, an examination of this claim shows that the variations can be quite substantial. For instance, Abu Hanafi allowed non-Arabic prayer - still regarded as anathema in most of the Muslim world. Al-Shafi permitted ransom or free liberation for war prisoners, while Hanifa decreed death or slavery. The schools also vary in their attitudes to dar al harb (the land of the unbelievers).

The area of women's rights is one where there are variations both amongst and within schools. Orthodox Shia Sharia permits daughters who have no brothers to be residual heirs, while the Maliki school does not. Hanafi Sharia enables a woman to choose a husband without her father's permission, Shafi sharia does not. The schools also vary in their attitudes towards the management of fertility - some permitting family planning and/or abortion and others not. These and other variations in Muslim law and reasoning have rather significant effects on women's rights and lives.

I will give just one example here - the issue of polygyny (i.e. the marriage of a man to more than one wife). The Qu'ran permits polygyny. It does not require it. And it specifies certain conditions that should be fulfilled if polygyny is to occur. Furthermore, it is also known that the surahs on polygyny were revealed after the battle of Uhud when many Muslim men were killed. None of foregoing statements are contentious. Yet, Muslim thinking and sharia on polygyny varies tremendously. Yusuf Ali and others have argued that the conditions are impossible to fulfil, and therefore that polygyny should be banned. Others have argued that on the basis on surah 24:32, monogamy is clearly preferred. Hence in Tunisia and South Yemen, for instance, polygyny was banned or allowed only on very stringent conditions, which had to be validated by a court.

At the other end of the spectrum, there is emphasis on the permission to marry polygynously and that the Prophet did so (although the Prophet's first marriage - to Khadija - was monogamous until her death). Hence in Nigeria, for instance, not only is there fierce insistence that polygyny is allowed by immutable law, but men often go further to say that they must marry polygynously in order to be like the Prophet. This is in stark contrast to the way Muslim laws and thinking treat the Qu'ranic provisions on (for example) slavery. Like polygyny, slavery is permitted in the Qu'ran but not required. Yet Muslim states no longer permit slavery, acknowledging that freeing slaves is preferred. Thus the issue here is that both existing argumentation and the possibility of developments in Muslim law, especially as regards women, are being blocked in Nigeria, by the myth that there is only one divine and unchangeable system of Muslim law.

The fourth myth
is that if sharia is divine unchangeable law, it must therefore be accepted unquestioningly by all good Muslims. The irony here is that the scholars after whom the four currently accepted schools of sharia were named, themselves stated the very opposite! They had no intention of making their views final and binding on all Muslims. Abu Hanifa said "It is not right on the part of anyone to adopt what we opine unless he knows from where we derived it". Imam Hanbal urged "do not imitate me, or Malik, or al-Shafi, or al-Thawri and derive directly from where they themselves derived". Whilst Imam Malik cautioned "I am but a human being. I may be wrong and I may be right. So first examine what I say. If it complies with the Book and the Sunnah, then you may accept it. But if it does not comply with them, then you should reject it." [1] In the views of the very founders of the schools of sharia, good Muslims were precisely those who questioned and examined and trusted their own reasoning and beliefs.

This present myth of unthinking acceptance derives from what is called the 'closing of the doors of ijtihad', whereby for the last thousand years and more, legal jurisprudence has ceased to develop in favour of following established models. But it should be noted that this was a political event. Abu Zahra wrote that the acceptance of ijma (a consensus about the schools of sharia at that time) in the tenth century was "but for the maintenance of national unity and to check individual deviations, that al-ijma was legalised as an authority after the sacred texts". Refusing further ijtihad is not a religious or divinely sanctioned act. It is not required in the Qu'ran or by the Sunnah. To the contrary, both the Qu'ran and hadith refer approvingly to thinking, reasoning and diversity of opinion.

Sharia Acts in Nigeria

The current trend in the world is moving further away from oral pronouncements and more towards written codified legal texts. This applies to religious laws as well as secular. Hence sharia is increasingly enacted law - as witness the recent wave of Sharia Acts in several states in Nigeria. It is extremely ironic, however, that in complete divergence from Imam Malik's own views and practice, some states in Nigeria are purporting to legislate Maliki sharia within their boundaries. It is known that Imam Malik refused permission to Caliph Mansur, and later to Haroun al-Rashid, to enforce the Imam's own views of sharia as the legal code of that time within the caliphate.

Nigeria has always had Muslim personal law available to Muslims in northern Nigeria. Furthermore elements of Muslim law had also been incorporated in the Penal Code (such as that it is an offence for Muslims to drink alcohol, for instance). However, the new Acts are also expecting to extend to other civil law areas (commerce and finance, for instance) and also criminal law. There are also serious fears that Muslim laws may be imposed upon Christians and other non-Muslims - such as in a prohibition of alcohol, or amputation of the hand as a penalty for theft for all throughout the states involved, rather than for Muslims only.

What is disturbing is the lack of publication of details, and therefore of the difficulty of open and reasoned public debate, examination and seeking for consensus on the provisions of sharia that are now supposed to be enforced in those states. This open discussion of detail and content should be mandatory on several grounds. As Wali pointed out in the 1950s, religiously the rule of Muslims should by be consensus. And, as a part of a civilian and democratic process in a state which constitutionally can have no state religion, the provisions and content of all laws should be open to debate by all Nigerian citizens resident in the state. In addition, the provisions of law - including religious laws [2] - should be spelt out clearly and examined for their appropriateness. There is a lack of clarity about what sharia is or should be in twenty-first century Nigeria, which is particularly evident in relation to what has been happening over women's rights.

For instance, we heard first that in Zamfara State, as a part of sharia, women would be prevented from travelling in public transport. This was explained by some on the grounds that Muslim women should not be in the public sphere, and if they were should certainly not be in the company of unrelated men. There was an outcry and protests by many Nigerian women's organisations, who pointed out that: women's seclusion was not required by sharia; women's rights to freedom of movement were being violated; it would have particular severe effects on poor women; it would affect women's abilities to sustain themselves and their families; and their fears that this would be the first step towards restricting Muslim women's rights, violating the rights of non-Muslim women and imposing a dress code on all women. In the wake of this, the governor of Zamfara State said that women were to be free to use public transport as they wished, but that in addition, women-only vehicles would be provided for their convenience and modesty. In practice, there have been difficulties for women to use public transport and exercise their right to freedom of movement in Zamfara state - as well as for car, bus and motor-cycle taxi drivers to earn a living as a consequence.

Another example was the reported statement of the Chair of Talata Mafara local government in Zamfara State that all women who were not married should get married within three months, and non-married women would be sacked from jobs in the civil service. Women agreeing to marry would be provided with money. Therein were the implications that all non-married women were promiscuous at best, and prostitutes at worst. Again, there were protests from women's organisations. And again, a clarification or modification was announced to the effect that the Chair only meant to promote marriage and help assist women materially, and that sackings were not going to be implemented. Other examples abound.

This kind of toing-and-froing leaves a bad taste in the mouth and confirms fears that sharia will be used as an excuse to restrict women's rights, instead to promoting them. It also contributes to the atmosphere of fear, confusion and lack of clarity about what are the laws.

The political context in which the acts have been passed has placed many Muslims in a position where, whatever their private misgivings, they do not voice them in public, for fear of being considered to be betraying Islam and the Muslim community in Nigeria. Similarly non-Muslims are now in the unenviable position of being thought to be factionalist, anti-Islam and speaking out of ignorance, if making any criticisms. And furthermore, there is the problem that critiques coming from non-Muslims may have the effect of prodding Muslims into a defensive stance.

Privately, many Muslim women and men have expressed fears about and disagreements with restrictive ideas of women's rights in sharia and support for the potentials of women's rights in law (religious and otherwise). In public, they either keep quiet or speak rhetorically of supporting Islam. People expressing reasoned misgivings have been branded as anti-Islam and apostates and have received threats. Part of this problem has been precisely the belief in the myths mentioned above. We need to be able to move beyond these myths to acceptance of the legitimacy of diversity of opinion about Muslim laws and towards the possibility of developments in Muslim laws in Nigeria appropriate to the context and understandings - including of women's human rights - in the twenty-first century.

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[1] All quotations taken from Noor Amin.

[2] Or perhaps especially of religious laws, since if these are found to be inconsistent with jutice or inappropriate they bring the whole religion into disrepute.