Shariah and the Woman Question
By
Sanusi Lamido Sanusi
Ali
Mazrui’s brilliant interview with the Weekly
Trust (18/8/2000) opened a new vista in the Shariah debate: the internal
Islamic discourse aimed at ensuring that the on-going Shariah project
does not end up in the misapplication of the Shariah and the misuse of Islamic
concepts as a justification for the
entrenchment of latent or manifest interests. Now that it seems clear that the
various state governments of the Muslim north have affirmed their right to
promulgate Islamic laws under the constitution, it is timely that Mazrui has
reminded us once more that the Shariah, though a Divine law, is subject to human
interpretation and is often not completely free from subjectivities.
Mazrui
begins by summing up his major reservations in terms of what he calls
“excessive legalism”, a pre-occupation with “is this halal
(lawful) or haram (unlawful)?” Yet on a closer reading of the interview one
concludes that the term “ excessive legalism” was used flippantly, possibly
because of the nature of the medium. Shariah, by definition, is inseparable from
legalism. However, what clearly emerges is that Mazrui objects to the tendency
to see Islamic law as being in perpetual statis,
the failure to exert the intellect in the quest for new definitions and the
implicit assumption that the founders of the various schools of law have once
and for all asked and answered all questions for all Muslims everywhere to
eternity. In this, Mazrui hits the problem of the Muslim north in this regard
right on the head.
The
traditional educational system in the Muslim north, which forms the bedrock of
Islamic scholarship, revolves around a set of books introduced to the region by
the Almoravids, centred on Maliki law,
with the Mukhtasar of Shaykh Khaleel as the magnum
opus. Let me say that the education itself is of a high standard. It is
difficult and requires a strong sense of discipline and commitment. Yet despite
all its strengths it is bedeviled by all the usual problems linked to a stagnant
system. It encourages rote learning, does not welcome imagination and, most
dangerous of all, perpetuates the myth that scholars living at some historical
point have somehow transcended the limitations of mortal knowledge and offered
solutions for problems they had no idea about.
The
system confuses belief in the universal and eternal applicability of the
Shariah with the need for a wholesale adoption of its historically
specific interpretation to meet the requirements of a particular milieu. This
confusion in turn throws the ulama into
a cul-de-sac of sorts. If society
changes and evolves, new questions are thrown up and, consequently, new
priorities are set and options are re-evaluated if
the Shariah is to be relevant. But the flexibility (muruna) and evolution (tatawwur)
which are needed for the law to be applicable and relevant to every time and
place are denied the Shariah by the very failure to contextualize rulings (mazahib)
in their historico-culturally specific milieu. We have thus foreclosed the
option of academic space, within which a discursive trend may evolve, strictly
based on the hermeneutics of Islam and not derived from or reducible to alien
concepts, and on the basis of which we can amend, adapt, extend or abrogate
previous rulings and priorities and arrive at new, equally valid but more
relevant ones.
At
the level of praxis, the wholesale adoption of this law (or rather, this set of
rulings) and its forced implementation on modern society, has the effect of
seeking to turn back the clock of history and revert us to the cultural
conditions, value systems and even ideological priorities of medieval Arabia,
that is, the context in which these rulings were first compiled. Nowhere is this
evident as with the obsession of all modern attempts at implementing Shariah
with the woman question. Of a
certainty, the Prophet of Islam and the Qur’anic Revelation did come up with
guidelines for women in terms of conduct, dressing and the regulation of
cross-sexual interaction. But there is no evidence that the Prophet (S.A.W) was
as obsessed with the woman question as we seem to be or that it formed the
corner piece of his message. By comparison, the degeneration of political values
and the emergence of new, hereditary monarchies in the Muslim world came with a
shift in the focus of Islamic discourse in the realm of public policy. Scholars,
in the main, turned a blind eye to such issues as tyranny, injustice,
corruption, abuse of office and the rights and liberties of the poor and weak
(mustadh’afin). The emphasis
became one of justifying new social relations such as the right to hereditary
leadership, the supremacy of the Arabs or even particular clans among the Arabs
over other peoples and the need to keep women (and slaves) where they belong at
the bottom of the social ladder. The interest of the Holy Prophet and his
companions where women were concerned lay in freeing them from bondage to man,
giving them rights in marriage, inheritance, participation and economic
empowerment as well as raising their status to one of equality with men as
servants of the same true God, though allowing for male leadership in areas of joint
effort, mainly marriage and the family. Subsequent interest, however, seems to
have turned to an attempt to return to the jahiliyya
(ignorance) period and a gradual increase in the level of confinement of
women and restriction of their ability to move in physical and intellectual
space. If care is not taken the wholesale adoption of the legal rulings and
priorities of this milieu will lead to the religion of Islam being used as a
divine license for inherently unfair gender relations which are a part of the
northern social formation.
Even
a cursory student of Islamic history knows that all the trappings of gender
inequality present in Muslim Society have socio-economic and cultural, as
opposed to religious roots. The excessive restriction of women and other
manifestations of male domination are no more an integral part of Islam as a
religion than, say, the sanctification of the Arabic language and the tendency
towards institutionalized racism which appear in some of the literature of those
days. Muslim men, like all men everywhere, are the last to accept that gender
inequality is a social contraption rather than a religious imperative. This is
natural not only because men are the ultimate beneficiaries of this inequality
but also because only those who are victims of injustice tend to see it and
appreciate the absurdity of attributing it to God.
One
possible approach to stimulating the male mind is to look at other
institutionalized prejudices that led to rulings which the modern Nigerian
Muslim can contextualize. As an example, let us take the great Muslim jurist,
‘Iyadh ibn Musa. ‘Iyadh was a great and pious scholar on whom al-Nawawi
relied extensively in his commentary on the Sahih of Imam Muslim. He is more widely known in scholarly circles
in our country for his unmatched book on the Prophet(S.A.W.) entitled al-Shifa.
This book, along with the Qur’an is used for lessons during Ramadhan. The
point which interests me here is that among the things considered by ‘Iyadh as
apostasy in Islam is to say that the Prophet was black! Now this simply sounds
like a racist remark until you take
time to contextualize it. In a society where slaves existed and constituted the
lowest rung, and where most blacks were slaves, it was an insult to call a
non-black “black”. It is something like calling a white man “nigger” in
19th Century America. The ruling therefore reflected the prejudices
against “black” people in a
particular context and can not be taken as the Sharia for all times. To have a
clear picture, compare ‘Iyadh’s position with that of the contemporary
Afro-American Muslim intellectual, Khalid
al-Mansour. In his book, Betrayal by any
other name, al-Mansour argues that the Prophet was black. He quotes the Prophet as having said, on his death-bed,
“we must always remember the African Copt tribes, because we have their blood
in us.” He also relies on descriptions of the prophet as “large-mouthed and
bluish colored, with hair that was neither curly nor straight.” An Arab reader
can be forgiven if he sees this as a racist remark.
Several
instances readily come to mind. Ibn Taymiya, in his book, Iqtidha’
al-sirat al-mustaqim, seems to give implicit approval to a ruling that
speaking a language other than Arabic by a Muslim who understands the language
is a sign of hypocrisy. Some have also attributed to him a ruling to the effect
that a black woman need not cover herself since, presumably, she is not
attractive. Even geography played a role in rulings. Living in the deserts of
the hijaz where only food-crops were
grown on a commercial scale, the founders of the Maliki, Shafii and Hanbali
schools restricted zakat payments to
those crops. This means, since the Maliki school is the one adopted by Zamfara,
that it can force a maize farmer who produces 20 bags to pay zakat while
collecting nothing from large-scale farmers of cotton,tomatoes and garlic, i.e.
the wealthiest farmers in the state!! By contrast, the founder of the Hanafi
school who lived in the fertile country of Iraq with advances in agriculture
from the days of the Persian empire ruled that zakat was payable out of any
produce of the earth once it reaches a minimum nisab. This was only possible because Abu Hanifa knew that anything
could be grown on a commercial scale. Political considerations and exigencies
have also played a role in rulings from the earliest Islamic period. The
selective reference to Tradition to legitimate the rule of the Quraysh by the
companions, of Ali and the prophet's descendants by Shiites, of any competent
Muslim by the Kharijites (including
women in one of their sects) etc. reflect underlying economic and political
configurations. Our ideologies determine which of the Prophet’s sayings we
give centrality, how we interpret them and therefore what our own understanding
of Islam is. The point here is to understand that interpretation of Islam has
never been in a vacuum. It has always been the product of a dialectical
relationship between revelation and the objective reality of existence. While
the sources we rely on for our law are impeccable, our use(or interpretation) of
those sources is tinged with motives, prejudices and limitations. It is the
sanctification of this interpretation, rather than the imperative of Islam, that
results in fanaticism.
ShehuUthman
Dan Fodio himself spent a lot of time fighting for the liberation of women. In
one of his Fulfulde poems, the Shehu had this to say: