Advancing the Legal Status of Women in Islamic Law

234 Pages·2021·2.252 MB·English

by  Mona Samadi

Advancing the Legal Status of Women in Islamic Law
International Studies

in Human Rights
volume 136
The titles published in this series are listed at brill.com/i shr

Library of Congress Cataloging-in-Publication Data
Names: Samadi, Mona, author.
Title: Advancing the legal status of women in Islamic law /
by Mona Samadi.
Description: Leiden ; Boston : Brill/Nijhoff, 2021. | Series: International
studies in human rights, 0924-4751 ; volume 136 | Includes bibliographical
references and index.
Identifiers: LCCN 2021011113 (print) | LCCN 2021011114 (ebook) |
ISBN 9789004446939 (hardback) | ISBN 9789004446953 (ebook)
Subjects: LCSH: Women (Islamic law) | Muslim women–Conduct of life.
Classification: LCC KBP526.3 .S26 2021 (print) | LCC KBP526.3 (ebook) |
DDC 342/.1670878–dc23
LC record available at https://lccn.loc.gov/2021011113
LC ebook record available at https://lccn.loc.gov/2021011114
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/b rill- typeface.
issn 0924- 4751
isbn 978- 90- 04- 44693- 9 (hardback)
isbn 978- 90- 04- 44695- 3 (e- book)
Copyright 2021 by Koninklijke Brill nv, Leiden, The Netherlands.
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Contents

A cknowledgments ix
G lossary x
1 T he Legal Status of Women: An Introduction 1
1 H istorical Aspects 4
2 T he Dictonomy Between Classical Islamic Law and the State 7
3 J ustice and Gender Equality 11
4 C rucial Developments of Law 12
5 O utline 19
2 F oundations of Islamic Law 24
1 I mmutable Law? 29
1.1 S haria 29
1.2 F iqh and Usul al- fiqh 32
2 S ources of Islamic Law 33
2.1 T he Quran 34
2.1.1 Authoritative Interpretations 36
2.1.2 Dealing with Contradictions 37
2.2 S unnah 38
2.2.1 Hadith Compilations 44
2.2.2 Validity of Hadiths 45
2.3 I jma 50
2.4 L egal Reasoning 52
2.4.1 Ijtihad 52
2.4.2 Other Forms of Legal Reasoning 57
3 W ho Has the Right to Interpret the Law? 59
3 W omen and Islam 63
1 T he Pre- Islamic Status of Women According to Muslim Sources 64
1.1 T he Pre- Islamic Status of Women According to Historical
Sources 67
2 T he Wives of Muhammad 70
2.1 K hadija 71
2.2 A isha 72
3 T he Influence of Islam on Women 76
3.1 T he Ethical Voice 80
vi Contents
3.2 M arriage 83
3.2.1 Temporary Marriages 88
3.2.2 Polygyny 90
3.3 S exual Relations 93
3.4 F ornication and Adultery 95
3.5 T estimony 98
3.6 C ompensation for Death 104
3.7 I nheritance 108
3.8 D ivorce 112
3.9 P olitical Positions 114
3.10 V eiling 118
3.11 T he Consequences of the Death of the Prophet on the Status of
Women 122
4 G uardianship of Women 125
1 G uardianship of Minors 126
2 L egally Incompetent but Financially Independent 130
2.1 M en Are the Managers of Women 132
2.1.1 Marriage Based on Cooperation or
Supervision? 133
2.2 C orrecting Women 144
3 T he Marriage Contract 148
3.1 T he Guardians Right to Conclude the Marriage Contract 151
3.2 M ahr 155
3.3 T he Analogy to a Sales Contract 158
5 A dvancing the Legal Status of Women in Islamic law 162
1 G radual Changes 164
2 C ould the Abolition of Slavery Be a Model for Advancing the Rights
of Women? 167
2.1 T he Status of Slaves 169
2.2 F emale Slaves 170
2.3 A bolishing Slavery 172
2.3.1 Egypt 174
2.3.2 India 176
2.3.3 Persia 178
2.4 I s There an Ijma on Slavery? 179
3 D oes the Principle of Justice Include Female Autonomy? 180
3.1 T he Concept of Justice 181
3.2 A n Unjust God? 183
Contents vii
4 P olitical Reform 186
4.1 S tate Law 188
6 C oncluding Remarks 193
B ibliography 195
I ndex 215

Acknowledgments

This book would not have been written without the help and active support
of many individuals, colleagues, friends, and family. First and foremost, I want
to express my deepest gratitude to Professor Mohammad H. Faghfoory at the
Department of Religion, George Washington University. I am indebted for his
support, not only while working on this book but for over a decade of generous
support and inspiring conversations.
I have had the pleasure of researching much of the material for this book in
such inspiring environments. George Washington University is where I started
and finished this book. Time spent at Princeton University was very valu-
able for my research. I want to thank Professor Hossein Modarressi and Julia
Buelow- Gilbert at the Department of Near Eastern Studies. They made sure
I could make the most of my time at Princeton University.
Special thanks are due to Professor Said Mahmoudi, Stockholm University,
and Professor Joakim Nergelius, Örebro University, who both reviewed early
drafts of this text. Their perceptive comments on various chapters were most
useful. I’d also like to thank Professor Mohammad Fadel at Toronto University
for providing me with valuable material for this book.
This research project would not have been possible if it wasn’t for the
generous contributions of the Sweden- America Foundation, Johan & Jacob
Söderbergs Foundation, Birgit and Gad Rausings Foundation for Humanist
Research, Emil Heijnes Foundation for Law Research, and the Wallenberg
Foundation for Jurisprudence Research.
To my incredible friends; the Londoño family; Rosario, Patricia, and Chiara,
Ph.D. candidate Therese Johnstone, Karin Karlsson, Negar Sedghi Altieri,
Tara Horne, Haleh Rahjoo, Ph.D. candidate Niousha Nademi, and Martin
Runosson – I am so inspired by and grateful for every one of you. Without the
endless encouragement and support from my parents Farhad and Zohre, and
my brothers Milad and Mahyar, I would never have finished this.
Glossary

Agd agreement
Aql reason
Ayah a verse of the Quran
Ayatollah Islamic priest
Bidʿah innovation, usually pernicious innovation as opposed to the valid precedent.
Bidʿah is often used in contradistinction to the Sunnah.
Closing of the gate of ijtihad ijtihad is the maximum effort expended by the jurist
to master and apply the principles and rules of usul al- fiqh (legal theory) for the
purpose of discovering God’s law. The activity of ijtihad is assumed by many to
have ceased about the end of the ninth century, with the consent of the Muslim
jurists themselves.
Darurah a legal instrument applicable in cases of extreme necessity or vital inter-
est by which a person is allowed to act in a manner that would normally be
forbidden.
Daruriyyat indispensable benefits or rights – comprising: (right to) life, intellect,
religion, family and property.
Fatwa considered opinion given by a qualified scholar, a mufti (jurisconsult) or a
mujtahid (one who is competent enough to conduct ijtihad) concerning a legal/
religious issue: a religious edict. As there is generally no priesthood or the equiv-
alent recognized in Islam (except in Shia Islam), a fatwa is necessarily not bind-
ing on believers. Fatwas need to be based on Islamic sources and it is not uncom-
mon for Islamic scholars to hold different opinions on the same matters.
Faqih jurist
Fiqh Islamic jurisprudence. The term is often used synonymously with Sharia; the
main difference being that Sharia bears a closer link with the divine revelation,
whereas fiqh mainly consists of the works of religious scholars and jurists.
Fitnah sedition; affliction and tumult. In the Quran it is often used to imply oppres-
sion and persecution which denies its victim the freedom of religion.
Fuqaha the religious lawyers of Islam
Hadd an obligatory Islamic punishment laid down in the Quran
Hadith saying; traditions of the Prophet Muhammad
Halal that which is permissible and legal
Haram that which is forbidden and unlawful
Hudud limits; the fixed punishments for certain crimes under Islamic law
Hukm legal ruling; injunction; decision
Huquq plural form of haqq, meaning rights