Justice Through Equality: Building Religious Knowledge for Legal Reform in Muslim Family Laws

Publication Author: 
The Oslo Coalition on Freedom of Religion or Belief
Дата: 
May 2013
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Introduction
 
Compare these two statements:
 
"The fundamentals of the Shari‘a are rooted in wisdom and promotion of the welfare of human beings in this life and the hereafter. Shari‘a
embraces Justice, Kindness, the Common Good and Wisdom. Any rule that departs from justice to injustice, from kindness to harshness, from the common good to harm, or from rationality to absurdity cannot be part of Shari‘a."
 
"The wife is her husband’s prisoner, a prisoner being akin to a slave. The Prophet directed men to support their wives by feeding them with their own food and clothing them with their own clothes; he said the same about maintaining a slave."
 
Both statements were made by the same scholar, Ibn Qayyim al-Jawziyya (1292–1350 CE), but through modern eyes they seem poles apart. A law that embraces justice, kindness, and wisdom seems incompatible with the idea of a wife as a prisoner or slave of her husband. The former quotation reflects the ideal of Shari‘a as the divine law, the second reflects the realities of how this law came to be understood in medieval jurisprudence (fiqh). 
 
Some Muslims celebrate and identify with Ibn Qayyim’s idea of Shari‘a, which appeals to timeless principles of justice, welfare and reason, but are deeply troubled by his views on marriage, which no longer seem to reflect the justice of the Shari‘a and cannot be defended on rational grounds.
 
As Muslim women organise to press for reforms of gender-discriminatory national family laws modelled on classical fiqh, they experience these tensions, and raise questions such as: Why are the justice and equality, which Muslims believe to be inherent to Islam and Shari‘a, not reflected in family laws? How can they be reflected? Can Muslim women claim equality before the law without turning their back on Islam?
 
Here we discuss findings from new Muslim scholarship addressing these questions in an egalitarian perspective informed by Islamic tradition, modern conceptions of justice and human rights, and the social realities of women’s lives. Their work goes to the heart of current contests over Muslim family laws, providing knowledge-based arguments for legal reform.
 
Further reading
 
• Ziba Mir-Hosseini, “Justice, Equality and Muslim Family Laws”; editors,“Introduction”; both in GEMFL.
 
• The first quotation from Ibn Qayyim al-Jawziyya is from his I‘lam-Alamin; the second is quoted in Yossef Rapoport, Marriage, Money and Divorce in Medieval Islamic Society (Cambridge: Cambridge U. Press, 2005).
 
To read the full report, please download the pdf