10th September 2001, 10:09
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Quote:
You & your Islannazi cohorts has never answered a question. Thr Morocco.com posse hounded of a good dude, Reddy from that site 'cos' he did attempt to answers questions. Remember the Question about Sikhs Maggs  You never answered that either. Answer the question Maggs babe, Islamic country (any one) V Sweden. I is waiting. Love the NZman 
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"THE OAR SNAPS IN HIS HAND BEFORE HE REACHES DRY LAND... BUT THE SOUND DOESN'T DEAFEN HIS SMILE" Love the NZman
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10th September 2001, 10:18
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Re: Re: Islam and Democracy
Quote:
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"THE OAR SNAPS IN HIS HAND BEFORE HE REACHES DRY LAND... BUT THE SOUND DOESN'T DEAFEN HIS SMILE" Love the NZman
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12th September 2001, 12:06
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Another one for you Maggs
From you guessed it the centre of Christian, Jewish, Hindu Sikh, capitalist, communist propaganda... The BBC.
Two women in Indian-administered Kashmir have been splashed with paint for ignoring a militant demand for strict Islamic dress. Reports from Kashmir's summer capital, Srinagar, say more than half the women on the streets have complied with the directive to wear head-to-toe veils. The deadline to cover up passed on Monday amid fears of a repeat of acid attacks last month on women not wearing the veils, or burqas. Paint, not acid Police say the group has opted for paint rather than acid in response to the criticism. In the first incident, two men threw paint on a woman in Kralkhud in Srinagar and were immediately arrested by Indian police officers. Police said one other woman was also attacked with paint in the city. . He said police have been deployed across the city and would arrest anyone attacking women. Defend this Maggs, Love the NZman
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"THE OAR SNAPS IN HIS HAND BEFORE HE REACHES DRY LAND... BUT THE SOUND DOESN'T DEAFEN HIS SMILE" Love the NZman
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2nd October 2001, 09:42
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I love a good quote
From the Islamic guide book.
"Man have authority over women because Allah has made the one superior to the other, and because they spend their wealth to maintain them. Good women are obedient. They guard their unseen parts because Allah has guarded them. As for those from whom you fear disobedience, admonish them and send them to beds apart and beat them." (4:34, Quran) Maggs can you make a sentence from these words Mouth Straight Horses The From Silence is a Killer Love the NZman
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"THE OAR SNAPS IN HIS HAND BEFORE HE REACHES DRY LAND... BUT THE SOUND DOESN'T DEAFEN HIS SMILE" Love the NZman
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12th October 2001, 10:16
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How many of you know that NZman is a probable indicted Serb War Criminal wanted by the International court in Den Haag? He has probably been indicted for crimes against humanity and genocides in Bosnia. He is believed to be in hidding ever since his indictment!!
NZman, Better prepare for your defense dude, rather than posting anti-Islam crap!!
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12th October 2001, 14:28
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courtesy: http://www.law-lib.utoronto.ca/Diana/fulltext/saye.htm ISLAM AND THE TREATMENT OF WOMEN: AN INCOMPLETE UNDERSTANDING OF GRADUALISM LEILA P. SAYEH* AND ADRIAEN M. MORSE, JR.** SUMMARY I. INTRODUCTION ........................................... 312 II. UNDERSTANDING ISLAM ........................................ 313 A. Islam as Religion ....................................... 313 B. Islam as Jurisprudence: Principles of Interpretation .... 316 III. GRADUALISM AND ISLAM ....................................... 318 A. Gradualism as a Method of Interpretation ................ 318 B. Gradualism as Applied to Certain Practices .............. 319 IV. EVOLUTION OR REGRESSION: ISLAM AND WOMEN ................... 321 A. The Age of the Prophet: Women as Equals ................. 322 B. Women's Rights in Islam ................................. 324 1. Education .......................................... 324 2. Marital Consent .................................... 325 3. Dowry .............................................. 326 4. Polygamy ........................................... 328 V. UNIVERSAL HUMAN RIGHTS ..................................... 330 VI. CONCLUSION ................................................. 333 [End of Page 311] I. INTRODUCTION In the last fifty years, women's rights have made immense world-wide gains. The degree of acceptance of women's rights, however, varies from country to country. Women's rights have not evolved uniformly because of religious, political, social, and economic differences. In particular, Islam has often been named as the main factor inhibiting the development of women's rights in Muslim countries. Persecution of women has gone on throughout history and has only recently been diminished in some societies. Although discrimination against women continues overtly and unabated in most countries, Islamic countries in particular have been singled out in the Western press for their treatment of women, and not entirely without reason. 1 Today, countries with large Muslim populations face very real problems related to their treatment of women and governmental condonation of such treatment. This Article's genesis lies in an attempt to break through some of the inaccuracies and distortions about Islam which presently enjoy wide acceptance in the United States, both in society as well as in academia. Law journals and foreign affairs newsletters are not above perpetuating these misperceptions. Most commentators have focused erroneously on Islam itself as the source of Muslim women's persecution. The motive behind writing such articles is not sinister or purposeful, but the harm that spreads from simple ignorance nevertheless affects a wide spectrum of people, and inaccuracies should be corrected where possible. One author attempted to draw attention to the need for expanded definitions of "persecution" and "refugee" in international treaties in order to cover women who have been victimized by the societies in which they live. 2 Unfortunately, that work focused on Islam itself rather than the misinterpretation of Shari'ah law 3 perpetuated by patriarchal societies. Similar attempts to address the problems of women in Islamic culture tend to perpetuate harmful stereotypes about Islam as a religion. Another commentator, attempting to performan economic analysis of the treatment of women in Islam, paralleled Islam's treatment of women with racial apartheid in South Africa. 4 A third author, writing about the World Trade Center bombing, stereotyped all Muslims as discontented with the West and posited that Islam is therefore dangerous to the West because it represents a vast and united conspiracy. 5 Even authors who attempt to be fair-minded tend to overstate the "dangers" of Islam and present the religion as rigid and irreconcilable with such documents as the Universal Declaration of Human Rights. 6 Unfortunately, the focus on Islam itself as the source of the persecution of women is misplaced and detracts from a true understanding of the nature of the plight of women in Muslim societies. This Article will briefly discuss the historical setting and roots of the religion of Islam as well as principles of interpreting Islam. Part III will introduce the concept of gradualism and explore its application to various practices in Islamic society. Part IV describes the role [End of Page 312] of women in Islam under the Prophet and how this role changed after the Prophet's death. The Article continues by exploring the evolution of certain concepts applied to women and how misinterpretation of Islamic law has created a patriarchal society. Part V will consider the role of a proper understanding of Islam in the context of human rights. The Article concludes by suggesting that the current treatment of women is not the result mandated by Islamic law. Instead, by applying both proper principles of interpretation and stricter human rights standards, women in Islamic societies can achieve the position and respect that the Prophet intended. II. UNDERSTANDING ISLAM A. Islam as Religion To properly understand and discuss the treatment of women in Islam, a certain level of familiarity with the basic tenets and historical roots of the religion itself is essential. Islam descends from the Semitic religions and shares with Judaism and Christianity the core concepts of monotheism: a belief in God's revelation, His prophets, ethical responsibility and accountability, and the Day of Judgment. 7 Moreover, Muslims trace their origins to Abraham, as do Christians and Jews; thus, Islam has a strong historical relationship with both Christianity and Judaism. Interaction among the three religions has at times produced both mutual benefit and borrowing as well as misunderstanding and conflict. 8 Although Arabian tribal society was the historical milieu in which Islam began, 9 Islam did not originate in seventh-century Arabia. From a Muslim theological perspective, Islam was not an isolated and totally new monotheistic religion. Rather, Muslims view Islam as the last true and correct revelation of God's word which had previously been revealed to the prophets of Judaism and Christianity in forms suitable for those times and places. 10 Thus, [End of Page 313] although there are obvious differences in these faiths, there are also numerous similarities which stem from their shared roots. Most importantly, all of these religions share a belief in individual and communal accountability to God's Law. The period of pre-Islamic Arabia--known as Jahiliyyah, or the Age of Ignorance 11--consisted of a patriarchical, tribal society living mainly in the desert. Throughout the desert, various populous agricultural and trading centers such as Mecca and Medina flourished. 12 The culture was polytheistic, with a belief that gods and goddesses, dwelling in various locations such as trees, stones, or sources of water, protected individual tribes. 13 Beyond this polytheism was a shared belief in Allah ("the god"), who, although considered the supreme god, was removed from everyday concerns and was therefore not the object of cult or ritual. 14 During this period, the Prophet Muhammad was chosen as the messenger of God. In the holy month of Ramadan, God sent the angel Gabriel to reveal his Word to Muhammad. 15 Muhammad, a successful business manager and member of Meccan [End of Page 314] society, had retreated to the solitude of a cave on Mt. Hira' north of Mecca to contemplate his life and the ills of society. 16 Once the angel appeared, Muhammad was no longer a mere merchant but the messenger of God, and for the next twenty-two years, he received divine revelations from God. 17 The Qur'an is the collection of God's revelations to Muhammad and is Islam's sacred scripture. 18 The Qur'an delineates the core beliefs of Islamic society and establishes the criterion for being a Muslim. 19 The acceptance of God's message places the Muslim on the straight path, and Islam's purpose is not to profess an abstract belief in God's existence, but to actually live in accordance with his law as revealed in the Qur'an. 20 Like other prophets before him, Muhammad's message was both feared and shunned by the powerful and entrenched interests of the economic and political elite, who represented the social and economic inequities of society which the Prophet censured. 21 His teachings included outright condemnation of false contracts, usury, the neglect and exploitation of orphans and widows, the suppression of the rights of the poor, and the neglect of the downtrodden by the rich. 22 Muhammad had come to shake up the status quo in his world, and the radical nature of his message was clear: Say: "O men! I am (Sent) to you only to give A clear warning: "Those who believe and work Righteousness, for them Is forgiveness and a sustenance Most generous. [End of Page 315] "But those who strive Against Our Signs, to frustrate Them,--they will be Companions of the Fire." 23 B. Islam as Jurisprudence: Principles of Interpretation Muslims belong to a single community of believers although, as in Christianity with Catholics and Protestants, there has been a major historic division between Sunni and Shi'i. 24 Historically, there are five major schools of Islamic law--four Sunni and one Shi'i. 25 The major Sunni schools of law are located in different parts of the world: the Hanafi in the Arab Middle East and South Asia; the Maliki in North, Central, and West Africa; the Shafii in East Africa, Southern Arabia, and Southern Asia; and the Hanbali in Saudi Arabia. The Shi'i adopted their own schools, the most important of which is the Ja'fari. 26 Islamic jurisprudence consists of an interplay between the sacred source of the Qur'an, the Sunnah, 27 and the tradition of ijtihad. 28 Both the Sunni and Shi'i accept the Qur'an [End of Page 316] as the primary and authoritative textual source containing the word of God and the Sunnah of the Prophet as an inspired secondary source that can shed light on the interpretation of the verses of the Qur'an. 29 There are, however, four sources of difference between these schools of Islamic jurisprudence: (1) different construction of some Qur'anic verses, (2) disagreement among the ulama 30 on the authenticity of some of the Hadith, (3) dissension on the acceptance of some legal sources, and (4) differences in opinion in some practical situations. 31 The Shi'i leadership is vested in the Imam, who is a political leader, a religious guide, and an authoritative interpreter of God's will. On the other hand, the Sunni selected a khalifah as a successor to the Prophet's political and military authority, 32 but he did not have religious authority, which instead was vested in the ulama. 33 The ulama of the various schools are the interpreters of Islamic law. Although originally judges had been both interpreters and makers of the law, their role became restricted to applying the law as developed by the ulama jurists. The ulama's decisions constitute the ijma, or legal precedent on which future cases will depend. 34 Islam's legal rules are subject to rationalization, and thus, changes in the interpretation of its rules are permissible. 35 Shari'ah 36 demonstrates this dynamism and receptivity to change. It is used by jurists in religious and legal cases in order to administer the appropriate ruling in a new factual setting. Shari'ah allows different interpretations of existing precedent in at least three situations as laid down in the Qur'an and the Sunnah: (1) necessity or public interest, (2) change in the facts which originally gave rise to the law, and (3) change in the custom or usage on which a particular law was based. 37 If one of these three conditions is present, the jurist may adapt existing law to the new situation, and his ruling then becomes a part of Shari'ah law, provided it does not contradict the Qur'an. 38 The following provides an important illustration of the process: The Prophet had provided that wheat and barley were to be measured by the kail, a volumetric measurement. Later, weight became the customary commercial measure of grain. Abu Yusuf, the Hanafi Chief Justice of Baghdad, upheld the validity of transactions based on the new usage despite the longstanding legal rule based on the old custom. 39 This flexible application of the rules of Shari'ah interpretation in order to meet the needs of modern [End of Page 317] society parallels the common law study in analogy and reason; therefore, students of English or American legal systems should have little difficulty in recognizing the basic mechanisms at work in the decisions of Shari'ah jurists. After the era of the Rightly-Guided khalifahs, 40 the prestige of rulers rested in sheer force rather than on successorship to the Prophet; because of this development, their rule required doctrinal legitimacy. 41 Therefore, in addition to retreating to patriarchical interpretation, as a result of political necessity rulers attacked the roots of independent thinking, causing a retreat of critical thought. The threat of individual violence against Muslim scholars advocating free will in the interpretation of Islam and the imposition of an official dogma effectively limited religious interpretation. 42 Finally, in the tenth century, the religious leadership of the Sunni decided that henceforth only the accepted schools of interpretation would delineate the meaning of the Qur'an and the Hadith based on their earlier ijtihad. This is known as the closing of the door of ijtihad. 43 Thus, in Sunni Islam today, judges are severely limited in their authority to engage in ijtihad, and accordingly their flexibility and adaptability in applying principles of interpretation such as Shari'ah is limited. 44 III. GRADUALISM AND ISLAM A. Gradualism as a Method of Interpretation The concept of gradualism will be used in this Article to show how women's rights in Islam have evolved and continue to evolve. As the name suggests, gradualism is a method of interpretation that proceeds by degrees, over time, advancing slowly but regularly. Gradualism is ideally suited to Islam because, while the Qur'an does enumerate certain legal standards, it consists primarily of very broad and general moral directives. 45 The idea of gradualism complements the notion that Islam is a further step along the path to a greater understanding of God. Just as Muslims see Judaism and Christianity as precursors of the advent of Islam, so are the limitations and changes made upon society by the Qur'an signs of how God wishes His community to continue to evolve and grow in the future. Gradualism is a conceptual framework that will highlight the overall pattern in the evolution of the status of Muslim women beginning with the rights of women in the patriarchal society existing prior to the Prophet, followed by the rights enumerated for women in the Qur'an, and ending with the treatment of women in Muslim society today. [End of Page 318] At the end of the analysis, a compelling argument should emerge: Islam allows, and in fact mandates, a status for women which is equal in dignity with that of men, and all Muslims are compelled to complete God's plan for such a society as revealed in his words and lessons. But before applying gradualism to the role of women, it is important to see how the notion was used for other aspects of Islamic society. B. Gradualism as Applied to Certain Practices Islam represented a radical change in direction for the society in which it flourished; therefore, different methods had to be used to accommodte different aspects of society. All changes had as their ultimate goal a new society that would live according to more enlightened standards than those that existed prior to the Prophet's revelations. A few illustrative examples may help to emphasize this theme. The transformation was instantaneous with regard to practices less central to the basic characteristics of society in Jahiliyyah, such as the practice of charging interest on loans. God had no need to slowly acclimate His people to effect this change. The Qur'an simply states: Those who devour usury Will not stand except As stands one whom The Evil One by his touch Hath driven to madness. That is because they say: "Trade is like usury," But God hath permitted trade And forbidden usury. Those who after receiving Direction from their Lord, Desist, shall be pardoned For the past; their case Is for God (to judge); But those who repeat (The offence) are Companions Of the Fire: they will Abide therein (for ever). God will deprive Usury of all blessing, But will give increase For deeds of charity: For He loveth not Creatures ungrateful And wicked. 46 This admonition occurs only once in the Qur'an, for it is directory and final, and all Muslims are thereby forbidden from charging usurious interest on debts. To be sure, this sort of admonition must have seemed rather hard for the merchants of Mecca, but in the [End of Page 319] end, it was simply a business practice, affecting a small portion of the community, and not an ingrained societal predilection. Certain cultural practices and habits common in Arab society at the time of the Prophet were less amenable to instant change and had to be modified more slowly. Admonitions had to be explicit about the reasons for change. Gradualism was clearly a central feature of this process. Little by little, the verses revealed to the Prophet modified the customs and usage of the Arabs in order to prepare them for the fully revealed Word of God. 47 For example, Arabs had been accustomed to drink alcohol and gamble, and initially, there was no outright prohibition on either but rather a recommendation: They ask thee Concerning wine and gambling. Say: "In them is great sin, And some profit, for men; But the sin is greater Than the profit." 48 Later, a verse was revealed which first imposed a moratorium on drinking alcohol during the hour of prayer: O ye who believe! Approach not prayers With a mind befogged, Until ye can understand All that ye say,-- Nor in a state Of ceremonial impurity.49 The final stage was an outright and absolute interdiction of all intoxicants and of gambling in all circumstances: O ye who believe! Intoxicants and gambling, (Dedication of) stones, And (divination by) arrows, Are an abomination,-- Of Satan's handiwork; Eschew such (abomination), That ye may prosper.50 This change in practice was brought about by a series of verses that were revealed over a period of years. 51 Thus, the principle of gradualism was established from the earliest days of Islam, as God revealed the Qur'an to the Prophet. 52 [End of Page 320] Changes such as these were not always so easily achieved. Some societal habits and biases were so basic and ingrained as to require an even more delicate approach. With regard to the treatment of women, Islam incorporated a combination of immediate changes to stifle the most egregious excesses of Jahiliyyah 53 as well as gradual changes meant to instill in Muslim society a basic framework of rights and ideals. The importance of this truth cannot be understated: Islam contains within it the seeds for fundamental change in the treatment of women. The elimination of alcohol provides a model of gradualism which, taken together with the Qur'an's revelations concerning women, the Sunnah of the Prophet, and the changes in society brought on by the Prophet, indicates that Islamic society was meant to evolve to a state in which women were equal with men in all regards. Since the law of Islam as contained in the Qur'an must be obeyed by all Muslims, men in Islamic countries are under a duty to respect women's rights--as the Prophet did during his lifetime. IV. EVOLUTION OR REGRESSION: ISLAM AND WOMEN In order to fully comprehend how Islam views women, it is essential to first understand the status of women in the Arabian peninsula. The social and political culture that existed in Arabia when the Prophet began to spread his message was rooted in membership in clans and tribes dominated by patriarchs. 54 The domination of society and culture by men during Jahiliyyah was absolute. During this period, a man could marry up to one hundred women, and, upon his death, they became part of his estate for his heirs. Some tribes practiced female infanticide, and women were never allowed to inherit. 55 It is in the context of the repressed status of women in Jahiliyyah that the innovativeness of the Qur'an's declarations of a new status for women in society becomes clear. The importance of this early domination of Arab society by men lies not in the popular notion that Islam is a patriarchal religion, but rather in the reassertion of male societal domination after the death of the Prophet. Although the Prophet's death signalled the reanimation of patriarchal forces, it was not until the end of the reign of the first four Rightly-Guided khalifahs 56 that the political forces of patriarchy reasserted themselves and swiftly eroded the advances in women's rights guaranteed by the Prophet's teachings. 57 In order to undermine the gains made by women during the life of the Prophet, men alone began to assume the role of interpreting the Qur'an. 58 As discussed above, various schools of interpretation developed, but all had one thing in common--a patriarchal value system. 59 These schools began to disallow the participation of women in public life, and, as a result, Qur'anic scholarship and interpretation of Islamic law became the province of men, with predictable results for the rights of women in society. 60 The Islam intended by the Prophet and the Islam practiced today are identical in form only; in spirit, Islam has drifted from its guiding principles as they apply to Muslim women. [End of Page 321] A. The Age of the Prophet: Women as Equals During the time of the Prophet, Islam diminished the excessive practices of Jahiliyyah by imposing new laws using the principle of gradualism. Islam granted women their dignity and allowed them to claim equal rights with men in all spheres of life. The Qur'an teaches Muslims that God created both men and women from the same soul: 61 O mankind! reverence Your Guardian-Lord, Who created you From a single Person, Created, of like nature, His mate, and from them twain Scattered (like seeds) Countless men and women.62 This concept is a marked departure from the Judaeo-Christian tradition, which teaches that God first created man, and only afterward created woman as his companion. The image of creating Eve from one of Adam's ribs reinforces the concept of women as subordinate to men. 63 The creation passage in the Qur'an marks a departure from this tradition, as do the practices and teachings of the Prophet. In the period of nascent Islam, women played prominent roles in all realms of life: religious, political, educational, legal, moral, economic, and military. 64 A few examples will show what Islam accomplished in raising the educational level of women and will highlight Muslim women's contributions to the growth of knowledge in Islamic society. The Prophet gradually but persistently allowed women to assume important positions in society. He designated his wife A'isha as a religious authority by stating "take half of your religion from this ruddy-complexioned woman." 65 Through the Prophet's encouragement, A'isha played a visible and active role in the political, legal, and scholastic activities of the Muslim community. 66 The Prophet chose her as one of the people who would pass on knowledge of the Qur'an and his practices to later generations of Muslims. 67 A'isha herself taught famous scholars about the Qur'an and Hadith, and discussed complex problems of jurisprudence and commentary with them. 68 A'isha's knowledge and intellect were such that her critique of some of the legal decisions of [End of Page 322] eminent jurists caused them to change their minds and instead adopt her views. 69 In addition, she narrated 2,210 Hadith of the Prophet, and scholars have noted that one-fourth of the norms of Shari'ah law were also narrated by her. 70 In almost every respect, A'isha appears to have been not only one of the Companions of the Prophet, but also an exceptional person. 71 Other women played prominent roles in the growth and enrichment of Islamic civilization. Imam Nawawi stated that Umm al-Mu'minin Hafsa "was one of the intellectual and intelligent persons." 72 He also spoke about the mother of Anas, Umm Sulaim, as one of the learned and knowledgeable Companions of the Prophet. 73 Imam Nawawi expressed a similar opinion about Umm Atiyah, saying "[s]he is reckoned among those of the Companions who won excellence and honor and participated in jihad with the Prophet." 74 Imam Bukhari stated that "Umm Darda' sat in Tashahud [as a witness] as a man sits and was a jurist (therefore her actions are authoritative)." 75 Islam did not prevent women from participating in armed revolutionary resistance or legal decision-making. Zaynab, Ali's daughter, was a revolutionary, 76 and Umm Atiyah, Hafsa, Asma' bint Abi Bakr, and Sahla bint Suhail were all jurists. 77 Women also participated in the bay'ah 78 and, thus, were an integral part of the political process. In fact, through the bay'ah, they contributed later on to the election of the third khalifah. 79 In short, women were equal participants in the growth of the early Islamic state. The well-known saying of Omar Ibn al-Khattab, the second Rightly-Guided khalifah, demonstrated the change in the status of women which had occurred with the advent of Islam: "By God, we did not pay attention to women in jahiliyyah until God said about them in the Qur'an what is said, and gave them their share in matters." 80 After the schism in Islam that occurred when Ali died at the hands of the Kharijites, women in Islam began to lose their influence to the forces of patriarchy and despotism. It was through a [End of Page 323] biased interpretation of the Shari'ah, along with the rigid cultural tendencies of male jurists, that women became confined to a secluded life and subordinate existence to men. B. Women's Rights in Islam Customs and traditions that were an integral part of society before the Prophet began to resurface after his death. These social norms were so deeply rooted that one generation could not eradicate the built-up injustices that had developed over the centuries. The behavior and attitudes that the Prophet had tried to correct inevitably reappeared, imprinting themselves on the religion as Muslim scholars and historians began to interpret the religion and apply its laws to suit their own circumstances. Societal impulses not only stopped the gradual progress of change but also reversed the trend, affecting the interpretation of Islam in such a way as to reinforce the preexisting customs and traditions. The cure for this dilemma was supposed to lie in education, and the education of Muslims was to be the weapon wielded by Islam against the renewed onslaught of ills brought on by ignorance. This part of the Article will examine the changes that Islam brought to society and will attempt to demonstrate the effect Islam was meant to have upon its followers. 1. Education As will be discussed below, women in Muslim societies often face discrimination, which runs counter to the rights Islam guarantees to all women. Although these rights are each important, no single right is as important as education, as it alone forms the basis of women's ability to affect Muslim society and determine for themselves the correct application of Islam to their needs. The Prophet applied the doctrine of gradualism to many of the changes which formed Muslim society, and the education of women was one tool in the gradual elevation of women to equal status with men. The education of women was part of Islam's revolutionary progress out of Jahiliyyah and, together with other measures, helped to mold a new society which was to be more faithful to the pattern laid out for it by God. The evolution of Muslim society was not completed in the Prophet's era, but his example was meant to guide future generations of Muslims in further completing God's will. 81 Continued modification of women's status would have ultimately resulted in equality with men had there not been a reversion to patriarchy with the catastrophic breakdown of the Muslim community into two disputing parts 82 and a subsequent regression of the Muslim society. Education is much more than simply a right of women. It is also the religious obligation of all Muslims. 83 Islam makes absolutely no gender differentiation in the imperative to educate both women and men. 84 Muslims believe that those who seek [End of Page 324] knowledge will be rewarded with Paradise. 85 The Prophet himself stated that all women should be educated. 86 He also encouraged the education of women through his actions, specifically by ensuring that Hafsah, one of his wives, learned to read and write. 87 Scholars have commented that the Prophet did not forget to incorporate women in his general exhortation that Muslims be educated. 88 Not only is education a basic duty of all Muslims, but it represents the basis for the future equality of all believers. 2. Marital Consent In Jahiliyyah, women generally did not have the right to choose whether to marry or not, as consent was granted or withheld by the father in consideration of a gift of money or goods which the father would keep for himself. 89 With the advent of Islam, these unenlightened practices were abrogated in favor of a woman's right to consent. Islam guaranteed the dignity, liberty, and independence of women by securing for each woman the right to refuse or accept an offer of marriage without regard for the position of her parents. 90 The Prophet annulled the marriage of Khansa Bint Khuzama, a woman who had been forced into an unwanted marriage by her father, telling her that she could choose to marry whomever she wanted. 91 Although many of the Islamic schools of law erroneously take a different stance, the Prophet held that a virgin must consent to her marriage: "No virgin girl is to be married without first consulting her, and her silence is consent." 92 Thus, according to Islam there should no longer be any forced marriages. A woman's consent is a condition of marriage, and if a father forces his daughter to marry, the marriage is by that fact annulled. 93 During the Prophet's life, whenever any decision was taken against the wishes of a young woman, the Prophet changed it after finding out her actual wishes. 94 [End of Page 325] It is true that many Islamic schools of law allow a male guardian (wali) to make decisions concerning the marriages of young women. 95 Except for the Hanafi, the schools agree that a father who acts as a wali may force his virgin daughter to enter into marriage; 96 however, a mature woman does not need a wali when deciding upon a husband. 97 These schools have incorrectly interpreted the dictates of the Qur'an in this instance. The use of a wali results from a wish to spare minors from making poor decisions. 98 However, in view of the Prophet's actions, the schools' insistence on continuing the practice of male guardianship over women who have the capacity to assume responsibility for themselves seems contrary to the spirit of Islam. As discussed earlier, prior to the advent of Islam, a woman had no right to even influence the decision concerning her marriage. The fact that women in Islam now have a say in their lives is part of the gradual, larger change in the status of women in Muslim society envisioned by the Qur'an. Viewed in light of gradualism, it is apparent that the Prophet's actions in supporting women who refused to marry a man chosen for them represented a first step in allowing women full authority in choosing their own husbands. The later retreat from the Prophet's liberality demonstrated by the tradition of the wali represents a regression born of patriarchy and an incomplete understanding of the role of gradualism in reshaping society along Islamic lines. 3. Dowry In Jahiliyyah, fathers (or natural guardians, if the father was not present) would give their daughters in marriage without regard to the women's wishes. 99 Men would sometimes give their daughters or sisters in marriage in return for another man's daughter or sister, and neither of the wives would get a dower, which was considered to be the property of the husbands or fathers. 100 Islam abolished this practice. A dower (mahr) is a mandatory free gift to the wife from the husband with no conditions attached. 101 The Qur'an states: And give the women (On marriage) their dower As a free gift . 102 In the West, the dower is often viewed as the price determined by men for the sale of a woman. Although this was an accurate description of the practice in Arab society before the Prophet, this is no longer the case. Islamic scholars state that the mahr should be [End of Page 326] suitable to the husband's circumstances. 103 The Prophet stated that even an iron ring may serve as a mahr. 104 The Prophet allowed one man to teach his wife verses from the Qur'an as a mahr. 105 Umar Ibn al-Khattab, the second khalifah after the Prophet's death, attempted to limit the dower, and a woman berated him in the mosque saying that he would not take away that which God had given to women; al-Khattab subsequently relented. 106 Because the amount of the dower has been viewed as contingent on the resources of the husband rather than upon any attributes of the wife or her status, it is evident that the mahr cannot be considered as the price paid for a wife. In Islam, the mahr is considered to be the exclusive property of the wife. No one--including her husband or father--may acquire it against her wishes, or tell her how to spend it; the mahr is hers to spend as she sees fit. 107 The payment of the dower is to the wife alone; a father is not allowed to derive any financial gain whatsoever from the transaction. 108 The Qur'an forbids husbands from attempting to regain the dower from their wives, even in the event of a divorce: But if ye decide to take One wife in place of another, Even if ye had given the latter A whole treasure for dower, Take not the least bit of it back: Would ye take it by slander And a manifest wrong? 109 Moreover, a Muslim husband must take care of all household expenses, and the wife is not obligated to spend any money she has, whether earned or from her mahr, on any domestic expense. 110 The immediate prohibition upon husbands seizing their wives' dower is an example of a societal practice so repugnant to basic tenets of Islam that it was abrogated immediately. Thus, it may be seen that the changes in the status of women fostered by Islam combined immediate cessation of reprehensible practices and gradual limitations upon practices which were viewed as undesirable. These practices are equally important to the eventual equality of women, but were less amenable to abrupt cancellation for eminently practical reasons, as demonstrated by the limitation upon the practice of polygamy. [End of Page 327] 4. Polygamy Before the Age of the Prophet, men could marry up to one hundred women. 111 In fact, one Arab tribe, the Thakif, were known to place no conditions or limits on the number of women a man could marry. 112 Although polygamy existed in many different societies, Islam eventually circumscribed and limited the practice in the Qur'an. 113 Islam imposed limits where before there was no limit at all, although at first blush, the Qur'an appears to permit more than one wife: If ye fear that ye shall not Be able to deal justly With the orphans, Marry women of your choice, Two, or three, or four; But if ye fear that ye shall not Be able to deal justly (with them), Then only one, or (a captive) That your right hands possess. That will be more suitable, To prevent you From doing injustice. 114 Upon closer analysis, however, it becomes apparent that this passage is a microcosm of the gradualism inherent in Islam. The verse above, when viewed in conjunction with IV:129, takes on new meaning: Ye are never able To be fair and just As between women, Even if it is Your ardent desire.115 The two passages are contained in the same surah and, thus, must be read as a whole--as the entire Qur'an should be. The passage concerning four wives must be understood in the context in which it was revealed to the Prophet. This section of the Qur'an was revealed after the battle of Uhud, when approximately ten percent of the Muslim men had been killed, leaving a large number of women and children unprotected and without means of support. 116 An earlier verse explains that the Muslims must take extreme care with the property of orphans and that using up such property or substituting it with less valuable property constitutes a great sin. 117 Verse IV:3 continues with an admonition that if the Muslim man cannot [End of Page 328] deal justly with orphans (keeping in mind the care with which their property must be handled), then he may marry others. 118 One interpretation of this verse is that a good Muslim will first consider marrying a widow before considering other possible wives. If he realizes that he would not be able to deal justly with her property, only then may he consider marrying other women. Regardless, a man should never have more than four wives. Taken in conjunction with the admonition that a man cannot deal justly with more than one woman, these verses can be read to say that no Muslim should in fact marry more than one woman, whether widowed or otherwise. This idea has not been accepted by any of the existing schools, but is not inconsistent with other verses of the Qur'an, and so is a permissible reading. The permission to marry more than one woman has been interpreted in different ways by various scholars, consistent with the above discussion or otherwise. One interpretation states that the permission is conditioned upon a Muslim being capable of justice between all of his wives. 119 Some believe it signifies that Muslims may marry up to four orphans or widows, and such permission was granted only for the limited factual situation which existed at the time. 120 Others have simply recognized the limitation on Muslims to four wives rather than the previous unfettered discretion practiced in Jahiliyyah. 121 Still others have recognized that the limitation of four is conditioned on fair dealing among them, and read the limitation in conjunction with the admonition that one cannot be just among one's wives. These scholars have realized that as no man can be just between several women, the prohibition on more than one is in fact absolute. 122 This is the position taken by the Tunisian Personal Statute Code. The Tunisian Code expressly bases itself on the Shari'ah and derives its legitimacy from a modern interpretation of Islamic law. 123 When it was formulated, the Code employed various interpretations, drawing from those espoused by the different schools; the government felt that this combination best suited the needs of the Tunisian people. 124 In Tunisia, polygamy has been abolished and penal sanctions established for any man who marries more than one woman. 125 The justification for this prohibition is that, since Islam states that a Muslim must do justice among all his wives, and at the same time that this is impossible, the passages in the Qur'an amount to a prohibition. Therefore, polygamy is simply a permitted matter, not an absolute right or religious duty. Since the political authority may legislate against a permitted thing or make it obligatory according to the needs of society, polygamy may be banned by the government to safeguard society. 126 The reasoning behind the change in treatment of women in Tunisia was the [End of Page 329] notion that the basic principle of nondiscrimination in Islam should be applied in society through an enlightened and just interpretation of Shari'ah law. 127 The ban on polygamy was only one of many reforms embodied in the Tunisian Code, 128 but it exemplifies the application of principles of religious interpretation to allow Islam to best serve the needs of a modern society. Islam was not intended to freeze human history at the point in time at which God's Word was revealed to the Prophet. Therefore, Islam provides mechanisms of change to meet the needs of a growing umma 129 and simultaneously guides its followers in the correct path. 130 The passage on four wives provides a model of how God limited the excesses subsisting in society while providing a mechanism for future scholars to reinterpret His Word and devine its full meaning. Islamic scholars have been reluctant to fully exercise the flexibility given to them in Islam, but there is now a growing movement to reapply the principles of ijtihad to the Qur'an and to carry society past the more limited outlook of its stultified and misogynistic past. V. UNIVERSAL HUMAN RIGHTS This Article began as a response to criticism of Islam as the source of discrimination against women in Muslim countries and has demonstrated that such criticism is misapplied. Islam's equal treatment of women stemmed from a broader respect for all humans. In fact, Islam was one of the earliest proponents of human rights. The world community should not expect Muslims to agree that the Islamic view of human rights, formulated fourteen hundred years ago, must now be supplanted in favor of a secular standard imposed by the West. At the time Islam announced that women would have certain rights, including a right to education, a right to dower, a right to choose whether to marry, and a right to manage their own property, the West was mired in that unenlightened period now known as the Dark Ages. 131 The universal rights common to all humans recognized by Islam were not even formulated by the West for another fourteen centuries. 132 Muslims have a justifiable pride in their religion's universality and respect for individual freedoms. It must be recognized that many practices in Muslim countries do not conform to the principles of Islam, but that does not change the fact that Islam safeguarded the rights of women and minorities long before any other culture or government sought to do so. 133 [End of Page 330] The United Nations Declaration on the Elimination of Discrimination Against Women states that "the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women." 134 This document approaches the problem of protecting human rights from a secular and universal point of view--in other words, from a Western perspective. It has been observed that the debate on international human rights assumes that political conduct can be conceptualized by common Western norms and attitudes, a parochial, Western view of human rights. 135 This view ignores an important truth: There exist in non-Western countries conceptions of human dignity which are as valid as those engendered in the West. Muslims quote the Prophet as having said: No Arab has any superiority over a non-Arab, nor does a non-Arab have any superiority over an Arab; nor has a white man any superiority over a black man, or the black man any superiority over the white man. You are all the children of Adam, and Adam was created from clay. 136 This quote indicates a degree of advanced thinking embodied in the theology of Islam and too often ignored in the debate concerning the definition of human rights. Overlooking this essential tenet of Islam is even more offensive given that a Western definition of human rights is being imposed upon the Islamic world. This example of moral imperialism is decried by commentators as serving only the interests of the West. 137 Some Muslim scholars do not take issue with the imposition of a Western norm but rather disagree with any concept of human rights which does not come from God. 138 There are other arguments by cultural relativists rejecting the application of human rights to certain countries because those norms stem from the Western tradition. This position is elitist: It implies that human rights are good for the West but not for much of the non-Western world. 139 The difficulty of successfully imposing universal human rights upon the Muslim world lies not in the idea of a universal concept of human rights, but rather in the fact that these rights as currently formulated are not drawn from the Qur'an. The powers in the West who control the debate about human rights should bear in mind the importance of religion in the Muslim world. Women are undeniably persecuted in some Muslim countries, despite the signing of numerous declarations and treaties guaranteeing them those human rights recognized by the world community. The problem is not a lack of respect for human rights in Islam, but rather the fact that the definition of women's rights has evolved in a misogynistic culture. Women have fundamental freedoms within Islam, and all the goals of equality espoused by the West can be achieved by applying the notion of gradualism inherent in the religion. Thus, the best way to solve this problem may not lie in dictating from the outside what standards must be met by the culture, but rather in encouraging a liberalization of the [End of Page 332 interpretation of the religion by Islamic scholars themselves. A realistic solution to the problem must include a framework for human rights which complements the Muslim culture and takes into account those rights of women already guaranteed by Islam itself. 140 It has been suggested that the only sure means of ensuring that women's rights are enforced in Muslim societies currently accused of violations would be economic: "[T]he day the I.M.F. [International Monetary Fund] says you cannot get a loan unless you repeal all the laws which justify aggression against women, we will have another planet." 141 Such ideas represent a strong-arm approach to the problem and an impatience with Muslim cultures which historically have been slow to change and resistant to outside influence. Moreover, such an approach is not the only answer. Economic threats from the industrialized countries and redefinitions of rights contained in international treaties 142 may help women who leave their country to gain asylum in other countries, but will do little to solve the problems of women who remain in societies that do not respect their dignity. Only a change brought from within will result in a permanent elevation of the status of women, and the efforts of politicians and intellectuals should be aimed at this higher goal. The present practice of imposing Western standards has not borne fruit, and is unlikely to do more than foster superficial, face-saving changes by governments that wish to preserve the flow of aid from Western nations. Finally, as Fatima Mernissi, a highly regarded Moroccan feminist, has stressed, the need for stability and certainty in the politics of the Middle East has had more than a minor effect on the continued subjugation of women. Regretably, the West is too quick to bargain away its leverage on human rights issues in exchange for guarantees of regional security. This is epitomized by regimes such as Saudi Arabia. 143 The patriarchal system of tribal loyalty used by the Saudi monarchy allows Western powers to transact with a single figure of authority with whom deals can be cut, and whose actions at least have the advantage of predictability. 144 The United States claims its national policy to be the defense of democracy, human rights, and self-determination across the world. 145 Refraining to exercise this policy toward the pro-American Arab nations while bringing it to bear only against Iran and fundamentalist entities illustrates the duplicity of U.S. foreign policy when practiced in this arena. 146 Amidst the swirl of global power politics, the issue of a Muslim woman's fundamental right to practice Islam as it was revealed to the Prophet and before it was subverted by patriarchal society has been neglected. Muslim countries are slowly beginning to mend the cultural biases which have heretofore prevented women from claiming their rightful place in Islamic society. A remarkable case in point is Iran--an Islamic theocracy which by most accounts has been [End of Page 332] fairly isolated from the influences of the West, a condition both self-imposed as well as enforced by the will of the world community. 147 A recent divorce case in Tehran was reported in some newspapers but engendered little other comment. The case represented a remarkable break from previous Islamic law in three respects: (1) the wife was granted compensation for her housework during the marriage under a new law passed by the Iranian Parliament; (2) a female judge sat on the family court which reversed previous clerical rulings; and (3) the divorce was decreed by a civil court, which is now a requirement for obtaining a valid divorce in Iran. 148 The article also noted that, although Muslim extremists draw headlines for violent acts, the broader fundamentalist movement is engaged in peaceful, if less visible, efforts to transform Islam and the political order in Muslim countries. 149 This single decision and the law which engendered it are indicative of the fact that change within Islam can be achieved, and that progressive reforms can occur in Muslim countries, but must come from within, and will not be accepted if imposed by the West. The best means by which the Western world can encourage such trends is patience, combined with a firm resolve to encourage the impetus for reform in Islamic societies by various means which avoid the outright imposition of a universal or in any case non-Islamic concept of human rights. Islam contains within it the genesis for change, and it is from within Muslim society itself that ultimate change will come. 150 This debate will be enlivened by Muslims living abroad in Western countries who can import ideas freed from the influences of misogyny. The persuasiveness of their words is only magnified by the economic and political power of the countries in which they live. 151 VI. CONCLUSION Women are not given enough protection under current international treaties and conventions. Women are indeed persecuted in Muslim societies, as they are in other societies. The world community has a duty to ensure that women in Muslim countries are granted the same human dignity as men and women in other countries. This must be done, however, from within a framework of respect and especially understanding of the religion that plays such a large role in Muslim culture and society. Islam must be understood as it truly is, not as it has been depicted in the press. Indeed, Muslim scholars must share the blame for this distortion, for many have interpreted the religion through a patriarchal prism, which has resulted in practices that deny women the rights they were granted by Islam. Women's rights in Islam must be preserved by the world community and not simply brushed aside because of ignorance concerning how Islam, as a religion, treats women. Islam has been presented to the West in a negative fashion, both by governments in the Muslim world that deny fundamental rights to women, as well as by the Western press, which is quick to pin the blame on the religion itself rather than on the misogynists who use it as a pretext for persecution. These zealots in Muslim society have failed to understand the role of Islam's gradualism in ameliorating the status of women. Islam is supposed to adjust to all times, places, and circumstances, but this cannot occur without an embrace of the concerns of Muslim women. Unfortunately, negative stereotypes-- [End of Page 333] reinforced by distortions caused by a lack of understanding in the West--do not help the women who are harmed. The first step in helping Muslim women lies in identifying what forces actually govern their treatment. Islam, as a religion, is not the problem, and may in fact be part of the solution. ************************************************ * J.D. 1991, Universite Hassan II, Casablanca, Morocco; 1995 LL.M. Candidate, The University of Texas School of Law; Member, Board of Directors, Karamah: Muslim Women Lawyers for Human Rights. ** J.D. 1995, T.C. Williams School of Law, University of Richmond, Virginia; B.S. 1988, U.S. Naval Academy. The authors would like to thank Dr. Azizah Y. al-Hibri of the T.C. Williams School of Law, University of Richmond, Virginia, for her suggestions, insights, and inspiration. The authors also thank Johanna Oliver, Editor in Chief, for her diligence and understanding. 1 See Fanny Borloz et al., Le Courage des Iraniennes, [The Courage of Iranian Women], 500 MARIE CLAIRE 63 (1994). 2 Linda Cipriani, Gender and Persecution: Protecting Women Under International Refugee Law, 7 GEO. IMMIGR. L.J. 511, 513 (1993). 3 See infra text accompanying notes 35-39. 4 Manoucher Parvin, On the Synergism of Gender and Class Exploitation: Theory and Practice Under Islamic Rule, 51 REV. SOC. ECON. 201 (1993). 5 Martin Kramer, Islam & the West Including Manhattan; Bombing of World Trade Center by Muslim Extremists, COMMENTARY, Oct. 1993, at 33. 6 E.g., Judith Miller, The Challenge of Radical Islam, FOREIGN AFF., Spring 1993, at 43. 7 JOHN L. ESPOSITO, ISLAM: THE STRAIGHT PATH 3 (1991). 8 Id. at 3-4. 9 Id. at 7. 10 We have sent thee Inspiration, as We sent it To Noah and the Messengers after him: We sent Inspiration to Abraham, Isma'il, Isaac, Jacob And the Tribes, to Jesus, Job, Jonah, Aaron and Solomon, And to David We gave The Psalms. Of some apostles We have Already told thee the story; Of others we have not;-- And to Moses God spoke direct;-- Apostles who gave good news As well as warning, That mankind, after (the coming) Of the apostles, should have No plea against God: For God is Exalted in Power, Wise. THE HOLY QUR'AN IV:163-165 (A. Yusuf Ali trans., 1983) (all references in this Article are to the A. Yusuf Ali translation); see also ESPOSITO, supra note 7, at 6-7. 11 ESPOSITO, supra note 7, at 15. 12 Id. at 4-5. 13 Id. at 5. 14 Id. at 6. 15 Id. at 8-9. And now, behold! a dazzling Vision of beauty and light overpowered his senses, And he heard the word "Iqraa!" "Iqraa!"--which being interpreted may mean "Read!" or "Proclaim!" or "Recite!" The unlettered Apostle was puzzled; He could not read. The Angel seemed to press him To his breast in a close embrace, And the cry rang clear "Iqraa!" And so it happened three times; until The first overpowering sensation yielded To a collected grasp of the words which made clear His Mission; its Author, God the Creator, Its subject, Man, God's wondrous handiwork, Capable, by Grace, of rising to heights sublime; And the instrument of that mission, the sanctified Pen, And the sanctified Book, the Gift of God, Which men might read, or write, or study, or treasure in their souls. The veil was lifted from the Chosen One's eyes, And his soul for a moment was filled with divine Ecstasy When this passed, And he returned to the world of Time And Circumstances and this world of Sense, He felt like one whose eyes had seen A light of dazzling beauty, and felt dazed On his return to common sights. The darkness now seemed tenfold dark; The solitude seemed tenfold empty; The mount of Hiraa, henceforth known As the Mountain of Light, the mere shell Of an intense memory. Was it a dream? Terror seized his limbs and he straightway sought Her who shared his inmost life, And told her of his sense of exaltation, And the awful void when the curtain closed. She understood, rejoiced, and comforted him; Gave strength to his shaken senses; Wrapped up in warmth his shivering body, Unused as yet to bear the strain and stress Of an experience rare to mortal men. She knew it was no dream or delusion. She went and consulted her cousin Waraqa, A devout worshipper of God in the Faith of Christ, Learned in spiritual lore. He listened And with her rejoiced that he, Muhammad, Was God's Chosen One to renew the Faith. Introduction to THE HOLY QUR'AN. 16 ESPOSITO, supra note 7, at 8. 17 Id. These revelations spanned from 610 to 632 A.D. Id. 18 Id. at 8-9. The Qur'an is divided into surahs, or chapters, which are arranged according to length rather than chronology, so that the longer chapters which represent later revelations actually precede the shorter and earlier revelations. Id. at 19. 19 Id. at 27. Muslim means "one who submits." Id. 20 Id. at 69-70. 21 Id. at 10. 22 Id. 23 THE HOLY QUR'AN XXII:49-51. 24 Approximately 85 percent of the world's Muslims are Sunni, while about 15 percent are Shi'i. ESPOSITO, supra note 7, at 4-5. The schism between Sunni and Shi'i arose initially as a dispute between who would succeed to the leadership of the Islamic faith after the death of the fourth khalifah, Ali ibn Abi Talib. Ali, the last Rightly-Guided khalifah, was killed by the Kharijites, who were the first radical dissenters in Islam. They espoused a fundamentalist view of Islam and an egalitarian view of society which held that any member of the community could become the Imam. Their murder of Ali allowed the challenger to the Caliphate, Muawiyah, to fill the power vacuum created by Ali's death. This act created the schism which still divides the Sunni and the Shi'i. Id. at 40, 43-44. Ali was a descendant of the Prophet Muhammad, and his followers believed that Ali and his heirs had received by transmission from Muhammad some special quality of soul and insight into the true interpretation of the Qur'an. Some day one of them would arise and begin a new rule of justice--this is why the Shi'i (shi'at Ali, or the followers of Ali) await the coming of a mahdi ("he who is guided"). Until the awaited Mahdi arrives, the Shi'i are led by an Imam, who descends from Ali and has the right to impose a single interpretation of the faith upon the Muslim community. ALBERT HOURANI, A HISTORY OF THE ARAB PEOPLES 31-37 (1991). This assertion ran counter to the beliefs of another segment of the Muslim community, the Sunni. When Ali was assassinated, the majority of Muslims accepted Muawiyah, the leader of the forces arrayed against Ali, as the new khalifah. The Sunni saw a succession of different ruling families who assumed leadership through inheritance and conquest. The succeeding khalifahs consolidated greater power in their office, but religious interpretation was a separate matter. Sunni theologians held that the Qur'an and the habitual behavior of the Prophet offered all the guidance needed by Muslims. This belief gradually coalesced into a unity which includes interpretive differences of legal opinion, but all based upon the Qur'an and the practice (Sunnah, hence the term "Sunni") of the Prophet. Id. at 32-37. 25 ESPOSITO, supra note 7, at 86. 26 Id. For a more detailed discussion on the differences between the various schools and the reasons for those differences see SUBHI MAHMASSANI, AL-AWDA' AL-TASHRI'IYYAH FI AL-DUWAL AL-ARABIYYAH [THE LEGAL SYSTEMS IN THE ARAB STATES] 115-40 (3d ed. 1965) [hereinafter LEGAL SYSTEMS]; see also SUBHI MAHMASSANI, MUQQADIMAH FI'IHYYAH ULUM AL-SHARI'AH [INTRODUCTION TO ISLAMIC LEGAL STUDIES] 35-55 (1962) [hereinafter LEGAL STUDIES]; TAHA JABIR AL-'ALWANI, USUL AL-FIQH AL-ISLAMI [SOURCE METHODOLOGY IN ISLAMIC JURISPRUDENCE] (1990). For a more detailed discussion in English, see MORTEZA MUTAHHARI, JURISPRUDENCE AND ITS PRINCIPLES (n.d.). 27 The Hadith is the written record of what the Prophet said and did in his everyday life. The Sunnah is the actual example set by the Prophet including what he said, what he did, and those actions that he permitted or allowed. ESPOSITO, supra note 7, at 80-81. 28 Ijtihad is the general term for legal reasoning or interpretation and the entailed use of reason and analogy to interpret the sacred sources of Islamic law. Id. at 83; SUBHI MAHMASSANI ET AL., THE PRINCIPLES OF LAW-MAKING IN ISLAM 7 (1961). 29 ESPOSITO, supra note 7, at 86. 30 The ulama are the traditional religious scholars who have the religious authority to interpret the law in the Sunni tradition. Id. at 45. 31 MAHMASSANI, supra note 28, at 13. 32 Khalifah [Caliph] refers to the successor of the Prophet, who is also the head of state in Islam. Azizah Y. al-Hibri, Islamic Constitutionalism and the Concept of Democracy, 24 CASE W. RES. J. INT'L L. 1, 2 & n.2 (1992). The first four successors of the Prophet are referred to as al-Khulafa' al-Rashideen, or the Rightly-Guided khalifahs. Id. at 21. The Rightly- Guided khalifahs were Companions of the Prophet during his lifetime and continued to abide by his teachings after his death. They were, in order of their succession: Abu Bakr (reigned 632-634); Umaribn al-Khattab (634-644); Uthmanibn Affan (644-656); and Aliibn Abi Talib (656-661). 33 ESPOSITO, supra note 7, at 49. 34 Id. at 86. 35 MAHMASSANI, supra note 28, at 15. 36 Literally, "the road to the watering hole." Shari'ah is God's will for Muslims to follow--divinely inspired law. The law has four sources: the Qur'an, the Sunnah of the Prophet, the ijma (consensus of the ulama), and ijtihad. ESPOSITO, supra note 7, at 79-85. 37 al-Hibri, supra note 32, at 7-9; MAHMASSANI, supra note 28, at 15- 16; LEGAL STUDIES, supra note 24, at 59-77. 38 See al-Hibri, supra note 32, at 8-9. 39 MAHMASSANI, supra note 28, at 16. 40 See supra note 32; seealso ESPOSITO, supra note 7, at 37-38. 41 HAMID ENAYAT, MODERN ISLAMIC POLITICAL THOUGHT 13 (1988). 42 Id. 43 ESPOSITO, supra note 7, at 85; MAHMASSANI, supra note 28, at 7-8; LEGAL SYSTEMS, supra note 26, at 143. Shi'i Islam did not limit the use of ijtihad, but rather continues to allow jurists to interpret the law and recognizes the need for mujtahids. ESPOSITO, supra note 7, at 86. Mujtahid (or 'alim) means a knowledgeable person who exerts his mental faculties and is used to describe a scholar who derives legal norms from the sources of Islamic law. ENAYAT, supra note 41, at 5. 44 MAHMASSANI, supra note 28, at 7-8. 45 ESPOSITO, supra note 7, at 79. [The Quran] replaced, modified, or supplemented earlier tribal laws. Practices such as female infanticide, exploitation of the poor, usury, murder, false contracts, fornication, adultery, and theft were condemned. In other cases, Arab customs were gradually replaced by Islamic standards . Much of the Quran's reforms consist of regulations or moral guidance that limit or redefine rather than prohibit or replace existing practices. Slavery and women's status are two striking examples. Id. at 79-80. 46 THE HOLY QUR'AN II:275-76. 47 LEGAL SYSTEMS, supra note 26, at 92. The holy text of Islam is the Qur'an, which contains the verbatim instructions of God to the Prophet Muhammad. The Qur'an was not revealed to the Prophet all at once, but over a period of 22 years in different installments. It is not organized chronologically, but rather by the length of each surah, or chapter. ESPOSITO, supra note 7, at 8-9, 19. 48 THE HOLY QUR'AN II:219. 49 Id. IV:43. 50 Id. V:90-92. 51 ESPOSITO, supra note 7, at 80. 52 LEGAL SYSTEMS, supra note 26, at 92. 53 See supra text accompanying notes 11-14. 54 ESPOSITO, supra note 7, at 5. 55 Azizah Y. al-Hibri, A Study of Islamic Herstory: Or How Did We Ever Get into This Mess?, 5 WOMEN'S STUD. INT'L F. 207, 209-10 (1982). 56 See supra note 32. 57 See al-Hibri, supra note 55, at 214-15. 58 Azizah Y. al-Hibri, Marriage Laws in Muslim Countries: A Comparative Study of Certain Egyptian, Syrian, Moroccan, and Tunisian Marriage Laws, 4 INT'L REV. COMP. PUB. POL'Y 227, 229 (1992). 59 Id. 60 Id. 61 QAMARUDDIN KHAN, STATUS OF WOMEN IN ISLAM 17 (1988). 62 THE HOLY QUR'AN IV:1. "Person" was the translation chosen for nafs, which may also be translated as "soul," "self," "person," or "will." Id. translator's note 504. The choice of term is unimportant, as the primary importance of this passage is that both men and women were created from a single entity, and therefore were created equal. 63 Genesis 2:21-22. This verse is a particularly patriarchal interpretation, chosen to illustrate the similarity in the experiences of women both in Islamic society and Western society. For centuries, patriarchal society in the West used similar rationales as are now used in Muslim countries to delay women's gaining equal status with men. The similarity in experiences should cause those who now condemn Islam for its treatment of women to reflect. 64 See ENAYAT, supra note 41, at 92; see generally, AFZALUR RAHMAN, ROLE OF MUSLIM WOMAN IN SOCIETY 56-75 (1986) (discussing the status of women during the time of the Prophet). 65 MOHAMMED KOTB, BAY'AT AL-NISSA [THE WOMEN'S RATIFICATION] 101 (n.d.). It must be noted that this particular hadith is considered to be weak. Id. at note 1. Hadiths may be strong or weak depending on the strength of their attribution to the Prophet through contemporaneous accounts from several sources and similarity between these accounts. 66 ENAYAT, supra note 41, at 132. 67 2 MUHAMMAD: ENCYCLOPAEDIA OF SEERAH 174 (Afzalur Rahman ed., 1982) [hereinafter ENCYCLOPAEDIA]. 68 Id. 69 Id. 70 Id. at 61-62; 16 BADR AL-DIN AL-AYNI, 'UMDAT AL-QARI FI SHARH SAHIH AL-BUKHARI [THE READER'S PRIMER FOR UNDERSTANDING AL-BUKHARI] 250 (Muhammad A. Damaj ed., n.d.) (arranging and editing the works of al-Bukhari, who had originally collected hadiths of the Prophet); ENCYCLOPAEDIA, supra note 67, at 175. 71 See ENCYCLOPAEDIA, supra note 67, at 171-82; 1 IBN HAJR, FATH AL-BARI BI-SHARH AL-BUKHARI [EXPLANATION OF AL-BUKHARI] 207 (1959); RAHMAN, supra note 64, at 61-62. 72 RAHMAN, supra note 64, at 58. 73 Id. 74 Id. Jihad is the obligation of all Muslims to strive or struggle to follow God's will. ESPOSITO, supra note 7, at 36. Contrary to most Western interpretations of the term, jihad does not necessarily mean armed combat with non-Muslims. In fact, God instructed Muslims to propagate Islam through peaceful persuasion and preaching. See ENAYAT, supra note 41, at 64 (viewing the Prophet's acts of wars as not having as their purpose dissemination of religion but rather as efforts in the name of statehood and the consolidation of the Islamic polity). 75 RAHMAN, supra note 64, at 58 (alteration in original). For a comprehensive history of women in Islam, seeAL-GHAZALI HARB, ISTIQLAL AL-MARAH FI AL-ISLAM [THE INDEPENDENCE OF WOMAN IN ISLAM] (1984). 76 ENAYAT, supra note 41, at 92. 77 RAHMAN, supra note 64, at 60-61. 78 Bay'ah is part of the process of confirming a new leader and is considered a contract of allegiance to the khalifah. ENAYAT, supra note 41, at 16. 79 Hassan al-Turabi, The Islamic State, in VOICES OF RESURGENT ISLAM 241, 244 (John L. Esposito ed., 1983). 80 SAID AL-AFGHANI, AL-ISLAM WA AL-MARAH [ISLAM AND WOMAN] 24 (1945) (author's translation). 81 ESPOSITO, supra note 7, at 80-87. 82 See supra notes 24-26 and accompanying text. 83 Azizah Y. al-Hibri, Education and the Muslim Woman 12 (Feb. 4, 1994) (unpublished manuscript, on file with the Texas International Law Journal); KOTB, supra note 65, at 100; 1 ABU ABDALLAH IBN MAJAH, SUNAN [SAYINGS OF THE PROPHET] 81 (Muhammad Fuad Abd al-Baqi ed., n.d.) (ninth century). 84 MUHAMMAD ATIYAH AL-IBRASHI, AL-TARBIYAH AL-ISLAMIYAH WA-FALSAFATUHA [ISLAMIC EDUCATION AND ITS PHILOSOPHY] 53 (3d ed. 1975). 85 1 ABU ABD ALLAH AL-BUKHARI, SAHIH AL-BUKHARI [THE CORRECT SUNNAN OF AL-BUKHARI] 25 (n.d.) (ninth century). 86 MAJID AL-KILANI, TATAWWUR MAFHUM AL-NAZARIYAH AL-TARBAWIYAH AL- ISLAMIYAH [THE EVOLUTION OF THE UNDERSTANDING OF THE THEORY OF ISLAMIC EDUCATION] 64 (2d ed. 1985). 87 AL-IBRASHI, supra note 84, at 54. 88 Id.; HAMMUDAH ABDALATI, ISLAM IN FOCUS 186 (1975). 89 HARB, supra note 75, at 33; see MURTAZA MUTAHHERY, WOMAN AND HER RIGHTS 120 (1982); seealso al-Hibri, supra note 55, at 209-10 (explaining the origin of the dower (mahr), where a suitor would get the girl of his choice by presenting her father with a suitable gift). 90 HARB, supra note 75, at 34. 91 Id. at 34; MUTAHHERY, supra note 89, at 25; AHMED ZAKI TUFFAHAH, AL-MARAH WA AL-ISLAM [WOMAN AND ISLAM] 43-44 (2d ed. 1985). There were many similar cases brought to the Prophet's attention in which he also permitted women to marry contrary to their fathers' wishes. HARB, supra note 75, at 34- 36. 92 5 ABD AL-HALIM ABU SHUQQAH, TAHRIR AL-MARAH FI ASR AL-RISALAH [INDEPENDENCE OF WOMEN DURING THE ERA OF THE PROPHET] 71-72 (1990) (author's translation); SAID ABDULLAH SEIF AL-HATIMY, WOMAN IN ISLAM: A COMPARATIVE STUDY 25 (1979). It is worth noting here that there is an essential problem in interpreting any sayings of the Prophet or verses of the Qur'an. The Arabic language is extremely complex, and words may often have multiple meanings or nuances. In this particular hadith, for example, the word which here is translated as "virgin" is bakr. Bakr does not necessarily mean virgin, however. It can signify a girl who has passed puberty or can also mean a girl who has attained maturity (or the relevant age of majority). These varying interpretations demonstrate how complex the analysis of even a single phrase of the Prophet can become, and how much room exists for error and societal misinterpretations to creep into the analysis. 93 LEGAL SYSTEMS, supra note 26, at 466. 94 RAHMAN, supra note 64, at 84. 95 Azizah Y. al-Hibri, Marriage and Divorce: Legal Foundations 3 (June 1993) (unpublished manuscript, on file with the TEXAS INTERNATIONAL LAW JOURNAL). 96 Id. The Hanafi allow a mature woman who has reached puberty to contract her own marriage, and the wali merely advises her. If the woman ignores his advice and marries someone the wali considers unsuitable, he may move to void the marriage unless a pregnancy has occurred. Id. 97 See id. at 3-4 (stating that Ja'faris view mature women as coequals with their male counterparts and legally competent to make their own marriage decisions, regardless of their fathers' approval). 98 See al-Hibri, supra note 58, at 232. 99 MUTAHHERY, supra note 89, at 128. 100 Id. 101 ABU SHUQQAH, supra note 92, at 57; MUHAMMAD ABU ZAHRAH, MUHADARAT FI AQD AL-ZAWAJ WA ATHARUH [CONFERENCE ON THE CONTRACT OF MARRIAGE AND ITS OBLIGATIONS] 228 (1971); MUTAHHERY, supra note 89, at 131. 102 THE HOLY QUR'AN IV:4. 103 ABU SHUQQAH, supra note 92, at 57. 104 MUTAHHERY, supra note 89, at 136. 105 ABU SHUQQAH, supra note 92, at 60; see MUTAHHERY, supra note 89, at 136. 106 al-Hibri, supra note 55, at 215 (quoting WIDAD SAKAKINI, INSAF AL- MARAH [GIVING JUSTICE TO WOMAN] 129-30 (1950)). 107 MUTAHHERY, supra note 89, at 129. 108 Id. at 128-29. 109 THE HOLY QUR'AN IV:20. Men are forbidden from treating women so badly they would sue for divorce, allowing the husband to reclaim the dower (which was permitted in Jahiliyyah); in short, all harshness is forbidden. MUTAHHERY, supra note 89, at 185 n.528. 110 MURTATHA AL-MUTTAHAR, HUQUQ AL-MARAH FI NIDAM AL-ISLAMI [WOMEN'S RIGHTS IN THE ISLAMIC ORDER] 212 (n.d.). 111 al-Hibri, supra note 55, at 209. 112 HARB, supra note 75, at 36. 113 AHMED ALI TAHA RABENA, TAADUD AL-ZAWJET [POLYGAMY] 8-9 (n.d.). 114 THE HOLY QUR'AN IV:3. This verse was revealed after the battle of Uhud, where the Muslims suffered their only defeat and were left with many orphans, widows, and captives of war. The passage allows Muslims to marry orphans if they can protect their interests and property in perfect equality with their own dependents. Id. translator's note 508. 115 Id. IV:129. 116 See KHAN, supra note 61, at 19. 117 THE HOLY QUR'AN IV:2. 118 Id. IV:3. "Orphan" in this context refers to women widowed at the battle of Uhud. 119 KHAN, supra note 61, at |
