Salbiah Ahmad Part 1

Feminism is not my new religion
Salbiah Ahmad
Mar 15, 06 1:16pm
Malaysiakini


SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of 'Malaya' in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes o­n the process of reclaiming the many facets of independence.
Malaysiakini

There is a powerful idea in the juristic notion that all matters in relation to rights of man (Adami) or humankind (as opposed to haqq Allah) is the subject matter of muamalat (transactions) and thus negotiable.

The Muslim contract was a great invention and it facilitated ordinary dealings and commerce beyond the shores of the great Muslim empire. We take the contract so much for granted today.

In the classical Mejelle Ahkame Adliye, the first compilation of an Ottoman Muslim civil code, it is stated that the aqad or concluded bargain is composed of the combination of an offer (ijab) and an acceptance (qabul).

This invention was extended to the aqad nikah (marriage contract). When a theologian friend reminded me that the Muslim marriage was derived from a sales-and-purchase agreement, we fell about laughing. The marriage contract has its basic foundations from a contract for the sales of goods.

Yes, the marriage contract conceptualised by early jurists is predicated on ownership or mulk granted to the husband over the wife in exchange for mahr (dower). This payment makes sexual intercourse lawful. Maintenance is also predicated by the wife's sexual availability. As a lawyer and a feminist, I am not in the least offended by this early thesis, having full appreciation of the historical context of the formation of contracts. I will come back to this point.

About more than a decade ago when I was doing the regional women NGOs circuit at a time when women and Islam was just starting out as a very novel even exotic rights issue, I experienced an unhealthy expectation in my audience (with feminists and Muslims among them).

Muslim women in many parts of the world experience oppression and marginalisation that is justified in the name of Islam. I would receive accolades if I speak out against the ill-treatment of Muslim women.

Misogynist religion

If I were to support Islamic principles as empowering for women, I would be seen to be in denial, my headscarf indicating subservience. At the popular level, there are types of scholarship which continue stereotyping Islam as a violent misogynist religion.

It became necessary to step back. I want to position myself in supporting my beliefs in my faith and ensure that my responses will not be implicated as an attack on Islam which would add to the xenophobia directed at Islam and Muslims especially when addressing a non-Muslim audience.

At the same time, I will have to seek new knowledge and skills in approaching and presenting concerns of gender relations in Islam. It is unconstructive to relentlessly savage your Muslim critics as misogynists or that much abused term, 'fundamentalists' without offering a learned and informed response.

Islam, women's rights and feminist theory have always come together for me, although in recent years, I may have been compelled to clarify feminism's compatibility with Islam. Last March in Bellagio, I met some of the world's most knowledgeable secular feminist theorists and activists. I recalled saying in that meeting that feminism is not my new religion but I would duly acknowledge that feminism has shaped my understanding of oppression among Muslim women.

Many Muslims view feminist approaches as an attempt to discredit and misrepresent Islam or that it stands for enmity between women and men. Feminism has also been associated by some Muslims with colonial strategies to undermine the indigenous social and religious culture.

Range of feminisms

Whatever its different prescriptions, feminism is a politics of protest directed at transforming the historically unequal power relationships or masculinist social structures between women and men. It provides a tool of analysis.

Feminism of the 1960s has transformed to embrace cultural diversity and multiple feminist epistemologies including a range of Muslim woman's gender activism or feminisms in the last two decades. Both women and men suffer from oppressive gender constructs.

The Quran treats women and men in exactly the same way. Whatever the Quran says about the relationship between God and the individual (male and female), it is not in gender terms. However, access to the divine discourse is mediated by humans and in gendered languages. Masculinist biases have prevailed in exegesis because Muslim societies have patriarchal histories.

I want to come back to the notion of early jurists that human relations are negotiable by contract. The aqad nikah is made synonymous to a property transaction. The Muslim marriage is divinely inspired and is a sacrament, but the basic structure of the contract of marriage is a human construct. And being of human construction, it is informed by interpretations of behaviour that have cultural associations or assumptions of the time and place of its formation in Muslim history.

In brief, the marriage contract is premised on the view that men are guardians over women. Consequentially this premise stipulates that the husband is solely responsible for the financial support of his wife and family. In return, the wife is to obey her husband. Her recalcitrance disentitles her to support. There are other implications to this idea of males as guardians over women. Piecemeal reform does not shake the basic paradigm or structure of the contract.

‘No good Muslim men’

I find it extremely problematic that Muslim women would insist that what is hers is hers and what is his is hers as well and then complain that there are no good Muslim men to marry. The message seems to be that unless males can guarantee a life of complete ease and comfort to females, do not get married. Like how real is that?

In any case, I do not know if the majority of Muslim women can actually sit pretty at home and think that her primary obligation is only to provide sex to her husband. Even before the controversial petrol price hike in recent weeks, I believe that good majority of Muslim women have also been income earners. Both spouses are breadwinners except perhaps for a section of upper class and privileged women. A lot of families need two incomes to survive.

The Quran in 4:34 does not stipulate that all males are guardians to or are preferred to or are superior over or are responsible for all women. Properly rendered, 4:34 stipulates that in some circumstances, some men are responsible for some women and in other contexts, some women may be responsible for some men. The contexts are not specified.

The rule that men are solely responsible for the maintenance of women is not unassailable. It is important for women and reformers to think through this as the implications of women's rights and obligations in the marriage and in family law flow from this rule because of the early juristic premise of marriage being akin to a transfer of property.

The Quran in 4:34, the mother-verse of male and female relations, addresses males and females equally. The males-as-guardians-over-women paradigm is not an immutable principle, it is gendered, or a cultural assumption of a Muslim society of a particular time and place which has seeped into the jurisprudence. As a cultural assumption, it is changeable.

The investigation of theory is to reform praxis. A reformation of family law needs a careful investigation between principles and cultural norms or as Fazlur Rahman calls it normative and historical Islam. To collapse both is a category mistake.


References

Asma Barlas (2005), 'Holding fast by the best precepts': Quran and method. Conference on The Changeable and Unchangeable in Islamic Thought and Practice. Sarajevo; (2004); Text, tradition and reason: Quranic hermeneutics and sexual politics.

Salbiah Ahmad (2005), Gender equality under Article 8: Human rights, Islam and 'feminisms'. Malaysian Law Conference.