Woman’s Jurisprudence (Fiqh al-Mar’ah) – Sayyid Kamāl al-Ḥaydari | Lesson 20

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Before we begin discussing the importance of gender studies, or the science that deals with the personality and nature of males and females, I want to once again mention the importance of the discussion of Fiqh al-Mar’ah it self. This is not just a crucial discussion to have within religious discourse, but rather it is one of the most important discussions to have for any nation. If we wish any change and advancement, it has to be done through the reform and rectification of women. If the status of women is not rectified and appropriate, no society can progress and advance and perfection. History is filled with examples of this.

One of the personalities who has discussed this topic in detail is Dr. Imām ‘Abd al-Fattaḥ – he has written a number of books on this topic. One of the themes he has discussed is the notion of a ‘female intellect in the history of philosophy’ – the topic sounds interesting and some of his book titles are: Aflātūn wa al-Mar’ah, Arasṭū wa al-Mar’ah, al-Filsūf al-Masīḥī wa al-Mar’ah and a few others. One of his claims is that women are that vessel in which any society moves and progresses, because it is through her that humans are born and trained. She plays the greatest role in developing the personality of a person and giving order to a society.

Of course, do not think that the moment we begin speaking about women’s rights and their role, that we are necessarily speaking about Western jurisprudence, their practices and norms and what they currently have at their disposal with respect to women’s rights and freedoms. Only someone who is not aware of the nature of our discussion will think such a thing. As a matter of fact, we will explain in the near future the main difference between women rights movements in the West, and what Islam has to offer in light and perspective of the Qur’ān. All these discussions will come later God Willing.

If you believe that Islam has given the family unit and family structure a central role in the progress of a society, then you should also know that the importance a woman has in this family structure is great and central. If a family is righteous, the society and community will be righteous. If a family is corrupt, then a society will be corrupt. If a woman is righteous, the family will be righteous and subsequently the society. If a woman is corrupt, the family will be corrupt, and so will the society. We will explain later what it means for men to be qawwamūn (maintainers) of women. I do not want to discuss this point any further, it was just to emphasize its importance.

Yesterday we said, these qualities – negative or positive – describing women and men, are these ontological traits that are not alterable, or are they accidental attributes conditioned to society. We need to know, who has the right to determine this in the first place. One of the subjects that needs to be considered is gender studies. Now gender is not an Arabic word – the Arab world has taken this word from English.The subject is inclusive of both genders, not a subject that discusses just the female or just the male.

One of the specialists in this field is ‘Abdul Majīd al-Sharfī. He writes in an introduction he wrote on the book of Dr. Āmāl Qirāmī:

ولو رمت تحديداً لما تقوم عليه الدراسات الجندرية لأمكنك تلخيصه في أن المجتمع هو الذي يشكل الاختلاف بين الذكورة والأنوثة أكثر من أي عامل آخر بكل ما يترتب على هذا التشكيل من مظاهر الاختلاف الأخرى بحسب السن والانتماء العقدي والغناء والفقر والحرية والعبودية وما إليها من الفروق بين البشرقدیما و حدیثا.

وليس هذا الإقرار بأن للمجتمع دوراً أساسيّاً في تكييف الاختلاف بالأمر الهين. فهو نقيض ما انبنت عليه كل الآراء الشائعة في شأن الفروق بين الرجال والنساء إذ تعتبر الذهنية التقليدية تفضيل جنس يعني ذكر على آخر من فعل الطبيعة وأصل الخلقة، وتجسيماً للإرادة الإلهية وضماناً لتوازن المجتمع وحسن سيره لا أثراً من آثار الثقافة وإفرازاً لأنماط من الاقتصاد والاجتماع والسياسة في ظروف معينة وتبنى على الفروق الفيزيولوجية والتكوينية نتائج لا صلة لها سواء تعلقت بالتربية والتنشئة أو بالأدوات الاجتماعية أو بالنظر إلى قيمة كل من الجنسين أخلاقياً ودينياً

So, some specialists in gender studies are claiming that many differences that we predicate on women and men are not due to ontological and biological differences, but rather a lot of them have to do with our surroundings and external factors. Society plays a role in assigning certain roles to men and women, just like it does to other realities such as age differences, affiliations with different groups, poverty, freedom, slavery and so on. Furthermore, some of these specialists claim that the popular view that the majority of these differences are due to mere ontological differences is not valid. We are not saying whether what these specialists are saying is true or not, we are simply saying this is their claim, and we are also investigating whether the popular view that has existed for centuries is true or not.

If we say that these differences are ontological, then they are not alterable. Therefore, the laws that have been prescribed for both genders will not change either. If we say these differences are rooted in societies, then we can say that the laws that God has ordained are alterable, and not stagnant. If – for example – women are better homemakers, then they should be doing that, but if men are better than women then it should become their responsibility. So, when the verse says, men are maintainers of women, this verse can’t be absolute, because they are maintainers as long as they are able to peform this duty in society. If a man was not brought up and trained to be responsible, mature and so on, can we say he is a maintainer of women, or his wife, or his home?

We also evidently see that many women performing tasks that are generally considered to be masculine – such as supporting a family, running for positions of power in politics, or even becoming strong economists. If someone comes and says these are exceptions to the rule, we will say ontological laws do not have any room for exceptions. The fact that these laws are being broken in these instances shows that they are not set in stone, and can be altered. These matters that are related with society, they are the matters which accept change, exception and alteration.

What about divorce laws? The narration says, divorce is in the hands of a man – is this ruling absolute or conditioned? If you say this is due to the mere fact that the husband is a man, then this law is not changeable. However, if you say the reason why divorce is in the hands of men is due to their ability to better reason, their ability to govern, their ability to make better decisions, then this relates to the society at large and is alterable.  – Someone will probably cut this part up from my speech and say Sayyid Kamāl allows women to initiate divorce (sarcastic remark).

Coming back to our point, if we see that in the Qur’ān it says men are greater than women, then we need to know is this greatness due to ontological reasons, due to the fact that there is something existential within men that makes them greater, or is it due to their role and place in society. Al-Sharfī writes elsewhere:

وقد اعتمدنا في تحليلنا لظاهرة الاختلاف بين الجنسين المقاربة التي قامت عليها الدراسات الجندرية فهي التي ألحت على تنزيل الاختلاف في إطار رؤية أكمل تتمثل في النظر في طريقة تشكيل الثقافة للفرد ونحكها لشخصية الفرد

We see in many societies today, that if a man ends up giving some duties to his wife, people end up seeing that as a deficiency in his masculinity and manhood. They may find it funny, or use terms to refer to such a man. These societal perceptions don’t just develop a personality of a woman, but also a personality of a man. This is all the while that man might know for a fact that my wife is better than me in taking care of some of these matters from all aspects. Therefore, gender studies is not a subject that concerns just the female, rather it is a subject whose intent is to study how masculine and feminine traits are developed and perceived in a society. Al-Sharfī continues to explain:

فالجندر إذن عامل من العوامل المنتجة للا مساواة ويسمح لنا تفكيك بنيته بادارك أن الاختلاف لا يرتبط بالفروق البيولوجية وإنما هو نتاج ممارسات ثقافية واجتماعية وسياسية

Through this discussion we will show how many narrations that condemn women are not only fabricated, but even if they are not, they are prone to naql bil-ma’na (transmitting through meaning), and that this meaning was what they understood from the original words of the Prophet (p) or an Imām (a).

Therefore, we know have a huge task in front of us where we need to determine if any given law is a law because of a certain ontological reason, or due to societal reasons. So many verses and narrations praise men by using the word al-rijāl, and you see scholars and exegetes trying their best to determine how to include certain women like lady Fāṭimah (a) in these praises – and some of their justifications and explanations are beyond strange.

In any case, no one is denying that the two sexes are biologically different. Men and women are biologically different from many different perspectives, but the discussion here concerns gender. All these traditions that speak about men and women, are they concerned with their biological differences, or their gender differences.

By this, we can now say that this discussion should be investigated in detail in Uṣūl al-Fiqh, because it is a principle that needs to be derived as it has a direct impact in deriving law. If we come across a law that pertains humans, are these laws to be first understood as alterable laws, or unchangeable laws.

About Ali Imran 231 Articles
An internet marketer by profession, I am the author of Iqra Online. I am currently pursuing a MA in Islamic Studies from The Islamic College of London, and as well as continuing my studies in a seminary in Qom, Iran.