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Women
in Society: Legal Rights
by Muslim Women's League
September
1995
The legal rights of women have long been a source of misunderstanding which may have contributed to the belief, held by some, that women have a God given inferiority to men. While looking at the legal rights of women, a basic understanding of Islamic law is necessary. Understanding the difference between divine law and laws developed through human reasoning (the former law being permanent and mandatory, the latter law being subject to reformulation as circumstances require) is necessary to determine which rules are binding on us today and which were developed by jurists to address certain situations and can therefore be re-examined if circumstances warrant. Sharia is the law of God and it is incumbent upon Muslims to observe it.
M.F. Osman, Sharia in Contemporary Society, Multimedia Vera International, 1994, p. 18. The divine sources of sharia are the Quran and the authentic teachings of Prophet Muhammad. Id. at p. 31. For the most part, the Quran and sunna provide general principles of conduct with a limited number of specific legal rules. Id. at p. 19. Through the process of ijtihad (personal reasoning) the divine teachings can be interpreted and implemented to address the changing circumstances of Muslims; thus, ijtihad is the most important source of Islamic law after the Quran and authentic
sunna. Mohammad Hashim Kamali, Principles of Islamic
Jurisprudence, Islamic Texts Society, 1991, p. 366.
Fiqh, on the other hand, is the law itself and it is derived from
sharia. Kamali at p. 2. Fiqh is not limited to the small number of revealed laws; rather, it is the jurisprudence that is derived from
sharia. M.F. Osman, Sharia in Contemporary Society, Multimedia Vera International, 1994, p. 37. The development of fiqh is through human effort to promulgate laws and as such it is not part of the permanent divine law; therefore fiqh can be re-examined and, if necessary, reformulated to address changing circumstances. Osman at p. 37.
Legal rights, including those of women, should be discussed in light of the Islamic principle of justice. Osman at p. 31. The main areas of controversy in regards to women’s legal rights are in the areas of witnessing and inheritance. While acknowledging that further research by Islamic scholars is needed in these areas to address changing circumstances and, if necessary, to reformulate
fiqh, the divine and permanent laws of sharia must be respected.
Women as witnesses in debtor/creditor transactions
The Quranic verse in regards to witnessing a debtor creditor transaction states: "Whenever you give or take credit for a stated term, set it down in writing...And call upon two of your men to act as witnesses; and if two men are not available, then a man and two women from among such as are acceptable to you as witnesses, so that if one of them should make a mistake, the other could remind her." (Quran 2:282). The jurist Ibn Al-Qayyim points out that the rule enunciated in 2:282 is the exception to the general rule that the testimony of a woman is equal to that of a man. (Osman, Fathi, Muslim Women in the Family and the Society, Minaret Publications, p. 39). Furthermore, this verse states a reason behind the rule, in case one forgets, the other may remind her. Within Islamic jurisprudence once the reasoning behind a rule is no longer applicable, then the rule itself may not be applicable. (Khalaf, Abdel Wahab, Ilm Usul al-Fiqh, Dar al-Qalam 1978, p.66). Professor Khalaf, who was Professor of Sharia at Cairo School of Law, states that all sharia rules are based on their reasons; therefore, the existence or non-existence of a rule depends on the existence or non-existence of its reason. He further states that a sharia rule is applicable if its reason is present, even if the wisdom of the rule is not understood; however, a rule is inapplicable if its reason does not exist, even if the wisdom of the rule is clear. Id.
When the Quran was revealed in Arabia over 1400 years ago, the women of that time had virtually no interaction in the business community and were unfamiliar with financial transactions; thus, the rationale for the verse. Thus, women are not inferior as a result of this rule, as is frequently believed in Muslim circles; rather, the Quran simply stated the rule in a manner understandable to the community to whom the Quran was revealed. However, in modern society, where both women and men are well versed in business and financial matters, and business is becoming a discipline and a specialty, there is no special danger of a woman forgetting or misunderstanding a transaction; therefore, under these circumstances, there is room to question the applicability of this rule. Amina Wadud-Muhsin, Quran and Woman, Penerbit Fajar Bakti Sdn. Bhd., 1992, p. 85 (citing Fazlur Rahman, Major Themes in the Quran, 1982, p.49).
Furthermore, the rule set forth for debtor-creditor transactions gives no justification to expand the rule to either exclude women from being witnesses altogether or to require two women for one man in every situation where witnesses are required. The verse clearly sets forth the situation in which this rule applies and why. Muhammad al-Ghazali comments that it is both unfortunate and wrong that this rule has been extended by some to exclude women from all witnessing. Muhammad al-Ghazali, Sunna al-Nabawiya Bayna Ahl al-Fiqh wa Ahl al-Hadith, Dar al-Shuruq, 1989, p. 66.
Women as witnesses in cases of adultery
Further evidence that the debtor-creditor situation is an exception to the general rule that the testimony of a woman is equal to that of a man is found in the Quran where in cases of adultery the Quran requires witnesses but is silent on the issue of gender, thereby implying that the gender of the witnesses is irrelevant. "And as for those who accuse chaste women of adultery, and then are unable to produce four witnesses in support of their accusation, flog them with eighty stripes; and ever after refuse to accept from them any testimony -- since it is they, they that are truly depraved." (Quran 24:4). In cases of adultery where one spouse accuses the other, either spouse can swear by God that he or she is telling the truth with the Quran treating each equally. "And as for those who accuse their own wives of adultery, but have no witnesses except themselves, let each of these accusers call God four times to witness that he is indeed telling the truth...But as for the wife, all chastisement shall be averted from her by her calling God four times to witness that he is indeed telling a lie." (Quran 24:6,8). Accusations of adultery are much more of moral significance than debtor-creditor transactions and it would make little sense to require two women witnesses for the relatively less significant event of a debt transaction and to require only one for the more serious accusation of adultery unless we accept the proposition that the debtor-creditor situation was an exceptional one because at the time women were unfamiliar with business transactions.
Women as witnesses in cases of divorce
In cases of divorce the Quran requires that there be two witnesses; however, it is silent as to gender, thereby implying its irrelevance. "...And let two persons of known probity from among your own community witness what you have decided; and do yourselves bear true witness before God." (Quran 65:2). Again, divorce is a significant act where the Quran has specified many rules and its silence as to the gender of the witnesses is further evidence that the debtor-creditor situation is unique.
Women as witnesses to bequests
"O you who have attained to faith! Let there be witnesses to what you do when death approaches you and you are about to make bequests: two persons of probity from among your own people, or -- if the pangs of death come upon you while you are traveling far from home -- two other persons from among people other than your own. Take hold of the two after having prayed; and if you have any doubt in your mind, let each of them swear by God, ‘We shall not sell this [our word] for any price, even though it were for the sake of a near kinsfolk; and neither shall we conceal aught of what we have witnessed before God -- or else, may we indeed be counted among the sinful.’ But if afterwards it should come to light that the two witnesses have become guilty of this very sin, then two others -- from among those whom the two former have deprived of their right -- shall take their place..."(Quran 5:106-107). In this situation, where safeguards are taken to ensure the integrity of the witnesses, the Quran is again silent as to their gender. It is noteworthy that preference was given to witnesses "from among your own people" -- this was a relevant criterion and it was enunciated; however, gender was not specified and thus is irrelevant.
Inheritance rights of women
Islam was revolutionary in regards to inheritance by women. Prior to the Quranic injunction, women not only did not inherit from their relatives, women themselves were bequeathed as if they were property to be distributed at the death of a husband, father, or brother. Thus, Islam, by giving women the right to inherit, changed the status of women in an unprecedented fashion. Moreover, this right was God given and not aquired as a result of political pressure. Furthermore, it is interesting to note that the verses on inheritance are contained in Chapter 4 of the Quran which is entitled "Women", perhaps signaling the importance of this area for women. The Quran states: "Men shall have a share in what parents and kinsfolk leave behind, and women shall have a share in what parents and kinsfolk leave behind." (Quran 4:7). In terms of the right to inherit, women and men are equal legal entities; thus, whether women can inherit is not controversial. Rather, the dispute centers around the "share" that is to be inherited. The inheritance verses demonstrate God’s wisdom in detailing the rights of each family member where the society was tribal and patriarchal and where women generally had no financial security other than that provided by men; however, there may be hidden wisdom in these verses that is beneficial to other types of societies as well. Islamic scholars, while respecting the permanent divine law, must explore the application and inherent wisdom of these verses to ensure that the Islamic principle of justice prevails.
The Quran goes on to state in detail the division of property based on the number of relatives and the level of kinship.
"Concerning [the inheritance of] your children, God enjoins [this] upon you: The male shall have the equal of two females’ share; but if there are more than two females, they shall have two-thirds of what [their parents] leave behind; and if there is only one, she shall have one-half thereof.
And as for the parents [of the deceased], each of them shall have one-sixth of what the deceased leaves behind, in the event of the deceased having [left] a child; but if the deceased has left no child and the parents are the [only] heirs, then the mother shall have one-third; and if the deceased has brothers and sisters, then the mother shall have one-sixth after [the deduction of] any bequest the deceased may have made, or any debt.
As for your parents and your children - you know not which of them is more deserving of benefit from you: [therefore this] ordinance from God. Verily, God is all-knowing, wise." (Quran 4:11).
The injunction that a male receives a share equal to that of two females appears to apply only to the inheritance of children by their parents. Parents who inherit from a deceased child each inherit one-sixth if their child has left a child. In that instance, the division is equal between the mother and the father of the deceased. The verse then states what the mother shall receive if the deceased left no children or if the deceased left siblings. Presumably the father and the mother inherit equally in those situations.
Muslim jurists have debated the issue of inheritance for centuries with several theories being proposed. One theory explains that a brother receives double his sister’s share because he has an obligation to provide for her support. The inheritance verse may be read in conjunction with the following verses which state: "Hence, do not covet the bounties which God has bestowed more abundantly on some of you than on others. Men shall have a benefit from what they earn, and women shall have a benefit from what they earn. Ask, therefore, God to give you out of His bounty: behold, God has indeed full knowledge of everything."
(Quran 4:32). And, "Men shall take full care of women with the bounties which God has bestowed more abundantly on some of the former than on some of the latter, and with what they may spend out of their possessions. And the righteous women are the truly devout ones, who guard the intimacy which God has ordained to be guarded."
(Quran 4: 34). These verses place an obligation on the person with more bounties to spend on the person who has less. The inheritance verse gives men a more abundant bounty than that given to women. Thus, men are responsible to spend of their property on women. Amina
Wadud-Muhsin, Quran and Woman, Penerbit Fajar Bakti
Sdn. Bhd., 1992, p.71.
Another theory holds that the inheritance verses mentioned above apply only if no will was left by the deceased. David Powers, Studies in Quran and
Hadith: The Formation of the Islamic Law of Inheritance, University of California Press, 1986, p. 52. This theory is based on the following verses: "O you who have attained to faith! Let there be witnesses to what you do when death approaches you and you are about to make bequests"
(Quran 5:106) and "It is ordained for you when death approaches any of you and he is leaving behind much wealth, to make bequests in favor of his parents and other near of kin in accordance with what is fair: this is binding on all who are conscious of God."
(Quran 2:180). These verses appear to sanction the drafting of a will, thus the argument that the inheritance verses apply where no bequest has been made as specified in these verses. However, there are jurists who believe that the verses on bequests were abrogated with the revelation of the inheritance verses. Powers at p. 52. (The issue of abrogation is an issue of much debate among jurists and is beyond the scope of this work).
Another theory allows the transfer of property to be made during the life of the testator
M.F. Osman, Muslim Women in the Family and the Society, Minaret Publications, p. 24; Muhammad
Ashraf, A Learner’s Guide to the Division of Inheritance, 1991, p. 19.
Another theory allows a person to will up to one third of his or her property in any manner, thus the one-third, or a portion of it, could be used to further provide for the female. Amina
Wadud-Muhsin, Quran and Woman, Penerbit Fajar
Sdn. Bhd., 1992, p. 88. (A majority of sunni schools state that the one-third share cannot be bequeathed to the natural heirs; however, others, including the shiite schools, disagree with this limitation. Muhammad
Ashraf, A Learner’s Guide to the Division of Inheritance, 1991, p. 22).
As shown by the plethora of theories on the subject, the topic of inheritance contains many complicated rules that need further study and clarification. Muslim jurists must continue to debate this subject and should consider whether the laws of inheritance apply only in an Islamic state where one who is wronged would have legal recourse and how should a Muslim minority in a non-Islamic state resolve these
issues.
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