Muslim Women in Iran and the Process of Interpretation and Reform of Islamic Laws

Haleh Afshar

Muslim women and feminisms: illustrations from the Iranian experience

It is the contention of this paper that Islam provides a framework that enables its adherents to open pathways towards feminism. If we define feminism in terms of offering women choices and giving their choices respect then we would be able to see that in their long struggle for liberation Iranian women have remained true to both their faith and the ideals of feminists. The most important pathway to this success has been greater access to education and the right that women have exercised of learning about their faith and what it offers them. Women who chose to fight for their rights in the context of Islam and its teaching are breaking new paths that had been barred to them for over a millennium. The process has been slow and hard and different in different countries. Throughout the most effective strategy has been to insist that Islam does not recognise intermediaries between God and the believers and each Muslim has the God given right to discover her/his faith and engage with it through the very words of God as recorded in the Koran. This immediacy enables women to construct a dialogue and initiate a process of interpretation and development, which places Islam in the framework of what could be called a feminist discourse. This paper explores some of the methods used to begin this process and considers its development in Iran.

Sources

The process of interpretation and reconstruction of Islamic law begins with identifying the appropriate sources and by using them understanding the rights and entitlements that God has bestowed on the believers. Since there is an accepted view that in Islam there are no intermediaries between God and the faithful the clearly the most important and reliable source of Islamic law has to be the Koran which records the very words of God which address the faithful directly be they men or women.

For believers Islam is not only a religion, but also a way of life and a political system: a system that has universal relevance for all Muslims, wherever they live, regardless of colour, nationality or geographical boundaries. It is a deeply egalitarian faith where it is said that there should be no nobility and no pre-ordained hierarchy. The only attribute that should be respected is that of piety: the most pious is the most noble. Umma, the society of Muslims, is conceptualised as a faith community headed by God whose members seek the correct path, sharia, laid by the Creator. Following the correct path will ensure that they will find moral and material well being. This universality and the pursuit of the correct path in the vast and diverse world of Islam are only possible because of the extensive flexibility that frames the firm core of Islamic teachings. For Muslim women the contestation is located in this flexibility that surrounds the firm kernel of Islamic laws.

The Koran is at the core of the faith and its laws. It is the only miracle of Islam in that the verses recited by the Prophet, who was neither literate nor learned, had such power, such lucidity and such a universal and eternal validity that they could only have been articulated by the Almighty. The power of the words are such that Muslims believe that they cannot be translated, because, despite their lucidity, no human mind is sufficiently powerful to be able to understand the full meaning of the words. At the same time for 14 centuries Muslim scholars have been interpreting and developing these ideas in order to find the correct path and to establish the basis of further laws and practices.

In order to gain a better understanding of the teachings of the Koran Muslims look to the Prophet and his deeds as perfect examples of good practice. Thus everything that the Prophet said, did or approved of is seen as acceptable and that which he condemned are not. However the vast domain of actions that he neither condoned nor condemned are where the flexibility comes to play. The assumption is that ‘that which is not forbidden is permitted’. Thus prevailing customs and practices in different societies, if not expressly forbidden by the Koran or by the Prophet, are permitted; hence the vast diversity of Islamic legal interpretations across the world.

The construction of these legal structures has been far from simple. According to Muslims God is the sole legislator and it is only the word of God that must be obeyed by all Muslims. The word of God is recited and then recorded in the Koran that contains, explicitly, implicitly or tacitly all the divine commandments. In terms of a legal construct, of the 6000+ Koranic verses only 500 contain the commandments and of these about 80 may be regarded by Western lawyers as articles of a code (Afshar 1977). Thus the firm core, which is non-negotiable, has over time, been extended by male jurisconsults to develop figh, Islamic law. The laws were developed according to different conceptions and with different emphasis on hadith, the reports of the deeds and decisions of the Prophet and in the case of the minority Muslims the imams in the case of Shiias.

It is the process of development of laws that has been detrimental to women and their interests. Women had fought in the Muslim battles with the Prophet and had been recognised as important sources of hadith. With the death of the Prophet Muslim women lost their most important champion. The Caliph Omar (634-44) was harsh to women and promulgated a series of ordinances which included stoning for adultery and confinement of women to their homes( Ahmed 1992:60). Although Ayisha regained some grounds after the death of the third Caliph, Uthman (656), her decision to raise an army to fight against the 4th Caliph Ali and her subsequent defeat may be sited as the first step towards exclusion of women from the battle fields. Nevertheless Ayisha remains one of the most reliable sources of hadith and as such has made an important contribution to the building blocks of Islamic law. Yet over the centuries women have been marginalised and finally excluded from the domain of law.

A major change came after the defeat of the Persians and the gradual infiltration of some of ‘the less egalitarian Persian customs’ into Islamic practices. Leila Ahmed sums up this process by arguing that:

The moment in which Islamic law and scriptural interpretations were elaborated and cast into the forms considered authorative to our own days was a singularly unpropitious one for women(1992:100).

But though not at the forefront women have not been absent. Elite women in particular have throughout retained a toehold in the apparatus of power. Mernissi has outlined the histories of nine forgotten Queens of Islam (1993) who ruled over the faithful. In the case of Iran we find that even in the eleventh century though secluded, women of the Ghaznavid dynasty 10th and 11th century “Were politically important and active, although this activity took place behind the scenes” (Scott Meisami 2003:82). They continued to exercise influence and play a part. By the 16th century women of the political elite were ‘present and active during military campaign’ and some royal princess took charge of directing state affairs (Szuppe 2003:154). By the 19th century Iranian women were at the forefront of rebellions and resistance and active partners in the 1911 constitutional revolution (Afshar 1991).

Thus though eclipsed by men there were notable female scholars, notable women who set up Islamic universities, notable Queens who ruled over the Muslim communities. But they have over the centuries, been shaded out of the domain of law, the judiciary and even the history of Islam. But the resurgence of access to education since the late 19th has facilitated an extensive revival of female scholarship and the contestation that they will no longer be subordinated.

Schools

Differing regions of the Islamic world gave differing importance to extend the laws over time by using hadith, ijma, consensus, and Qiyas, analogical deduction in the case of the Sunnis and Aql, reason, in the case of Shiias as well as accepting doctrine and customs and practices (Afchar 1977). Different regions of the Islamic world have given differing importance to these sources and constructed their jurisprudence accordingly. Generally speaking the Islamic schools of law are divided between the majority of Muslims who are Sunnis, the followers of tradition, and a minority largely located in Iran and Iraq who are Shiias, followers of Ali. The main different between the Sunnis and Shiias is that for the majority of Shiias the examples of good practice continued through their imams, direct descendents of the Prophet and therefore the necessity of developing specific principle, usul, for deduction and construction of law, figh, was deferred. For the Iranians who are twelver Shiias till the death of the 11th imam in 876 and the subsequent occultation of the 12th imam. For others such as the Ismaeli who still recognise a living imam the laws have been able to evolve more easily to keep up with the needs of the time. The Sunnis on the other hand have systematically developed methods of analogical deduction to extend the Koranic text and its teachings across the centuries and in accordance with prevailing norms, cultures and accepted principles. However the most important difference between the major Sunni and Shiia schools is in the Shiia’s assumption that reason must be a source of law since according to the sixth imam Jafar Saadeq ‘Everything which is commanded by the Shar is commanded by reason and everything which is commanded by reason is commanded by Shar’ (Afchar 1977:94). The Sunnis on the other hand are of the view that human rationality is incapable of understanding the laws of God and hence the various Sunni schools of law have developed a range of forms of analogical deduction to extend the Koranic text to apply to the needs and problems of the time. Different schools have offered different legal tools and methods to derive appropriate laws for appropriate times and places. The Hanafi accept few hadith as being authentic and admit a level of personal reasoning rai by allowing juridical preference estehsan as a means of establishing laws. The Maleki allow no room for human reasoning and take public interest, estehsan, as a guiding light. The Shafei rely on the view that past events are likely to be replicated and require similar solutions istehsab. The Hanbali rely extensively on hadith and give priority to the traditions of Medina. The differing schools have been highly influenced by the specificities of place and history of their founding fathers. Abu Hanifa ibn Thabit, the founding of the Hanafi school was born in Kufa in 699 AD and died in Baghdad in 767 AD. His methods were rooted in the old schools of Kufa in Iraq, a long way away from Medina. He was weary of hadith as a source of law and concentrated on developing the theories of Islamic law. By contrast Abu Abdullah Malik who was born and raised in Medina (712-796 AD) focused on the traditions of the Prophet as the best means of developing Islamic law. Al-Shafi (767-820) was a student of Malik who was born in Gaza and moved to Iraq and sought to synthesise the two schools and Ahmed Ibn Hanbal (781-855) was a student of al-Shafi who returned to the Medinan traditions. Thus the schools were built by men who had known one another’s work and had constructed a legal system based on a clear understanding of the general principles usul on which the law figh was developing. These men disseminated their teaching through the Islamic universities. But they did not train women. Yet women such as Mohammad’s wife Ayisha had been instrumental in shaping the early destiny of Islam. After the death of the Prophet, Ayisha, using the concept of consultation, Ijma, invited the leading Muslims to select and appoint her father Abu Bakre as the Caliph of the Muslims. It was also Ayisha who raised an army and took to the battlefield against the fourth Caliph Ali. Though she was defeated in battle she was treated with respect and remained one of the most important and reliable sources of hadith. As a life long companion of the Prophet her knowledge and understanding of his teachings his wishes and his judicial decisions were unparalleled. The emergence of a male theocratic system in Muslim countries has been a matter of patriarchal power rather than faith. Historically Muslim women have been warriors, rulers and teachers; they have set up Islamic universities and governed over Islamic nations (Mernissi 1993) and raised armies and fought in battles (abbot 1985. But the societies they lived in were patriarchal and after the death of the Prophet Muslim women lost their most influential champion and protector. It has taken them 14 centuries to develop the means to challenge the misinterpretations that seeped through the legal structures and were used to oppress them over that period.

Whereas remarkable women such as Khadijeh, who was the first convert to Islam and Ayisha who is one of the most reliable sources of hadith (Abbot 1985), were central to the development of the faith, women were surprisingly rapidly sidelined: the laws that were formulated on the whole did not deliver the rights that the Koranic text had given them. Muslim women did not meekly accept their fate (Mernissi: 1991), but lack of education was a major obstacle in accessing these rights. In the 19th and 20th century they gradually found their way back to literacy and embarked on the long struggle to reclaim their entitlements. Wider access to knowledge, particularly amongst the middle classes in the Middle East, opened the way, not least by Muslim scholars who chose to educate their daughters as well as their sons (Afshar: 1991, Bamdad: 1977, Hoffman: 1985)

The women identified several arena of contestation ranging from the well known and for many as yet unresolved discussions for and against the veil (El Guindi: 1998, Gole: 1996, Mernissi: 1975 and 1991) to the practicalities of wrenching power and authority away from men in the domains of politics and law and claiming agency in the domestic sphere (Afshar: 1998, Kandiyoti: 1991, Karam: 1998, Mir-Hosseini: 1991 and1999 Mirza: 2000, Sardar Ali: 2002). The process gained momentum in the 20th century and is cascading in the 21st.