Sharia and Gender Equality

Sharī‘a Defined

As Arabic term, sharī‘ah means a water source or a well where people or cattle drink from. [1]The word sharī‘ah is synonym and has same root that of the word shar‘ meaning to enact laws.[2] Terminologically, Ismā‘īl defines sharī‘a as the teachings revealed by Allah to His servants consisting of theology (‘aqā‘idiyya), deeds (‘amaliyya) and morality (khulūqiyya).[3] While Muṣṭafā Sānū defines sharī‘a as a collection of principles, beliefs, politics, societies, economics, crimes etc. legislated by Allah to manage human beings’ problems privately and socially based on Allah’s Will.[4]

Sharī‘ah from Prophet Adam to Muḥammad principally has common goal. It enjoins to tawḥīd principle, justice, equality, etc. but practically and artificially sharī‘ah revealed to every prophet differs from time to time as it must accommodate the culture and social conditions where and when the prophet sent down to guide his people (ummah).[5]

The differences of teachings sent down to the prophets indicate the existence of evolution (taṭawwur) and flexibility (murūnah) principle of the sharī‘ah. Both principle concern on the evolution of sharī‘ah as its substance differs from Adam to that of Muḥammad. Sharī‘ah of each prophet differs among them to the degree to which sharī‘ah accommodates to social conditions in time when the prophet live. Besides the differences of sharī‘ah are caused by the differences of social conditions, the differences are also caused by the method used by sharī‘ah to change their social conditions in time when and where the prophets live.

There were two roles of religion in relation to social conditions namely models for reality and those of for reality. The first, the religion confirms usage and tradition of society and make over them with new ones colored by Islamic values and the later means that religion implant new model to be followed by people.

Gender Discourse in Islam

The gender terminology in Islam is relatively new as the term was discussed only in the last decades. It does not mean that Islam rejects the term and does not have gender concept. Conceptually, gender construct in Islamic law is relatively develop more advance than other religions. Besides, Islam has Prophet Muḥammad as a great example in exerting the gender ideals.

The discourse of gender in Islamic law is based on the information and teachings given by al-Qur’an and Prophet Hadith, as follows:

  1. The destiny of man and woman

Allah creates the creatures with a measure (qadar) as the verse says:

إِنَّا كُلَّ شَيْءٍ خَلَقْنَاهُ بِقَدَرٍ [القمر: 49]

Indeed, all things We created with predestination.

 

Qadar in this verse means the measurements and characteristics predestined by Allah in creating everything. M. Quraish Shihab interprets the qadar as Allah’s destiny over all creatures.[6] The destiny of man and women in their creation as Allah predestined is as follows:

يَاأَيُّهَا النَّاسُ اتَّقُوا رَبَّكُمُ الَّذِي خَلَقَكُمْ مِنْ نَفْسٍ وَاحِدَةٍ وَخَلَقَ مِنْهَا زَوْجَهَا وَبَثَّ مِنْهُمَا رِجَالًا كَثِيرًا وَنِسَاءً (النساء: 1)

O mankind, fear your Lord, who created you from one soul and created from it its mare and dispersed from both of them many men and women.

 

This verse means that man and women were created from the same type. There are no differences between them since they were created from the same substances. However, there are differences in their biological anatomy as the verse says as follows:

وَلاَ تَتَمَنَّوْاْ مَا فَضَّلَ اللّهُ بِهِ بَعْضَكُمْ عَلَى بَعْضٍ لِّلرِّجَالِ نَصِيبٌ مِّمَّا اكْتَسَبُواْ وَلِلنِّسَاء نَصِيبٌ مِّمَّا اكْتَسَبْنَ وَاسْأَلُواْ اللّهَ مِن فَضْلِهِ إِنَّ اللّهَ كَانَ بِكُلِّ شَيْءٍ عَلِيماً [النساء: 32]

And do not wish for that by which Allah has made some of you exceed others. For men is a share of what they have earned and for women is a share of what they have earned. And ask Allah of his bounty. Indeed Allah is ever, of all things, knowing.

 

Based on this verse, the man and women have the different characteristics. However, the differences are not objects to be opposed each other.

There are many destinies predestined by Allah towards women, as follows:

  • Menstruation as indicated by the verse, as follows:

وَيَسْأَلُونَكَ عَنِ الْمَحِيضِ قُلْ هُوَ أَذًى فَاعْتَزِلُوا النِّسَاءَ فِي الْمَحِيضِ وَلَا تَقْرَبُوهُنَّ حَتَّى يَطْهُرْنَ (البقرة: 222)

And they ask you about menstruation. Say, “It is harm, so keep away from wives during menstruation. And do not approach them until they are pure.

 

  • Pregnancy

وَوَصَّيْنَا الْإِنْسَانَ بِوَالِدَيْهِ حَمَلَتْهُ أُمُّهُ وَهْنًا عَلَى وَهْنٍ وَفِصَالُهُ فِي عَامَيْنِ أَنِ اشْكُرْ لِي وَلِوَالِدَيْكَ إِلَيَّ الْمَصِيرُ(لقمان: 14)

And We have enjoined upon man (care) for his parents. His mother carried him, (increasing her) in weakness upon weakness, and his weaning is in two years. Be grateful to Me and to your parents; to Me is the final destination.

 

  • Breast feeding

وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ لِمَنْ أَرَادَ أَنْ يُتِمَّ الرَّضَاعَةَ (البقرة: 233)

Mother may breastfeed their children two complete years for whoever wishes to complete years for whoever wishes to complete the nursing period.

2. Equality between man and women in the Face of Allah

There are no differences between man and women in their substances as they are created from the same elements. The qualities that differentiate them are their fear of Allah (taqwā) as the verse indicated as follows:

يَا أَيُّهَا النَّاسُ إِنَّا خَلَقْنَاكُم مِّن ذَكَرٍ وَأُنثَى وَجَعَلْنَاكُمْ شُعُوباً وَقَبَائِلَ لِتَعَارَفُوا إِنَّ أَكْرَمَكُمْ عِندَ اللَّهِ أَتْقَاكُمْ إِنَّ اللَّهَ عَلِيمٌ خَبِيرٌ [الحجرات: 13]

O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted.

 

Therefore, Allah does not differentiate man and woman as they have qualities to guide each other. He also equally imposes religious duties to them as said the verse as follows:

وَالْمُؤْمِنُونَ وَالْمُؤْمِنَاتُ بَعْضُهُمْ أَوْلِيَاء بَعْضٍ يَأْمُرُونَ بِالْمَعْرُوفِ وَيَنْهَوْنَ عَنِ الْمُنكَرِ وَيُقِيمُونَ الصَّلاَةَ وَيُؤْتُونَ الزَّكَاةَ وَيُطِيعُونَ اللّهَ وَرَسُولَهُ أُوْلَـئِكَ سَيَرْحَمُهُمُ اللّهُ إِنَّ اللّهَ عَزِيزٌ حَكِيمٌ [التوبة: 71]

The believing man and the believing women are allies of one another. They enjoin what is right and forbid what is wrong and establish prayer and give zakah and obey Allah and His Messenger. Those, Allah will have mercy upon them. Indeed, Allah is Exalted in Might and Wise.

 

Other verse said as follows:

إِنَّ الْمُسْلِمِينَ وَالْمُسْلِمَاتِ وَالْمُؤْمِنِينَ وَالْمُؤْمِنَاتِ وَالْقَانِتِينَ وَالْقَانِتَاتِ وَالصَّادِقِينَ وَالصَّادِقَاتِ وَالصَّابِرِينَ وَالصَّابِرَاتِ وَالْخَاشِعِينَ وَالْخَاشِعَاتِ وَالْمُتَصَدِّقِينَ وَالْمُتَصَدِّقَاتِ وَالصَّائِمِينَ وَالصَّائِمَاتِ وَالْحَافِظِينَ فُرُوجَهُمْ وَالْحَافِظَاتِ وَالذَّاكِرِينَ اللَّهَ كَثِيرًا وَالذَّاكِرَاتِ أَعَدَّ اللَّهُ لَهُمْ مَغْفِرَةً وَأَجْرًا عَظِيمًا (الأحزاب: 35)

Indeed, the Muslim men and Muslim women, the believing men and believing women, the obedient men and obedient women, the truthful men and truthful women, the patient men and patient women, the humble men and humble women, the charitable men and charitable women, the fasting men and fasting women, the men who guard their private parts and the women who do so – for them Allah has prepared forgiveness and a great reward.

3. Equality between husband and wife in their household

The relation between husband and wife in their household of often cites the verse, as follows:

الرِّجَالُ قَوَّامُونَ عَلَى النِّسَاء بِمَا فَضَّلَ اللّهُ بَعْضَهُمْ عَلَى بَعْضٍ وَبِمَا أَنفَقُواْ مِنْ أَمْوَالِهِمْ [النساء: 34]

Men are in charge of women by right of what Allah has given one over the other and what they spend for maintenance from their wealth.

 

The word “qawwāmūn”, said Ibn Manẓūr, means muḥāfaẓah (taking care) and iṣlāḥ (reconciliation or peacemaking),[7] Shaḥrūr comprehended this verse that the qiwāmah is not the men’s monopoly as indicated by the words “bimā faḍḍala Allāh ba‘ḍahum ‘alā ba‘ḍ”. The words mean that qiwāmah is for men and women equally since they have excellences and wealth over others.[8] While Nasaruddin Umar said that since the verse used the word “al-rijāl”, the qiwāmah is equally for men and women because al-rijāl is social sex not biological one.[9] It means that who have excellences and advantages over other, he or she deserves qiwāmah and to be promoted as leader, maintainer, servicer, etc.

Husband and wife in their household have to maintain equality and partnership relation.[10] They must fill their shortages each other since they were created different and each has the shortages. The partnership relation is illustrated eloquently by the verse as follows:

هُنَّ لِبَاسٌ لَكُمْ وَأَنْتُمْ لِبَاسٌ لَهُنَّ  (البقرة: 187)

“They are clothing for you and you are clothing for them.

4. The equality between man and women within social and political realms

In the social and political life, men and women have the same duties and responsibilities to make the Muslim community better and the best as intended by Islamic teachings. The equality between them was indicated by the verse as follows:

وَالْمُؤْمِنُونَ وَالْمُؤْمِنَاتُ بَعْضُهُمْ أَوْلِيَاء بَعْضٍ يَأْمُرُونَ بِالْمَعْرُوفِ وَيَنْهَوْنَ عَنِ الْمُنكَرِ وَيُقِيمُونَ الصَّلاَةَ وَيُؤْتُونَ الزَّكَاةَ وَيُطِيعُونَ اللّهَ وَرَسُولَهُ أُوْلَـئِكَ سَيَرْحَمُهُمُ اللّهُ إِنَّ اللّهَ عَزِيزٌ حَكِيمٌ [التوبة: 71]

The believing man and the believing women are allies of one another. They enjoin what is right and forbid what is wrong and establish prayer and give zakah and obey Allah and His Messenger. Those, Allah will have mercy upon them. Indeed, Allah is Exalted in Might and Wise.

Quraish Shihab extended the meaning “ya’ murūna bi al-ma‘rūf wa yanhawna àn al-munkar” to all activities intended for making Muslim ummah better and critics against the government.[11]

[1]Muḥammad ibn Mukarram ibn Manzhūr al-Ifrīqī al-Mishrî, Lisān al-‘Arab, (Beirut: Dār Ṣādir, t.th.), Vol. 8, p. 175

[2]Hans Wehr, Arabic-English Dictionary, A Dictionary of Modern Written Arabic, JM. Cowan (Editor), (Ithaca, New York: Spoken Language Service, 1976), pp. 465-466

[3] Sya‘bân Muḥammad Ismā‘īl, al-Tashrī‘ al-Islāmī, Maṣādiruh wa Aṭwāruh, (Kairo: Maktabah al-Nahdhah al-Mishriyyah, 1985), h. 7

[4] Quthb Mushthafā Sānū, Mu‘jam Musṭalat Uṣūl al-Fiqh ‘Arabī-Inklīzī,  (Beirut: Dār al-Fikr al-Mu‘āṣṣir, 2000), p. 249

[5] ‘Allāl al-Fāsī, Maqāṣid al-Sharī‘ah al-Islāmiyyah wa Makārimuhā (tt.: Maktabah al-Waḥdah al-Arabiyyah al-Dār al-Bayḍā’, n.y.), p. 20

[6]  M. Quraish Shihab, “Foreword”, in Nasaruddin Umar, Argumen Kesetaraan Jender Perspektif Al-Qur’an (Arguments of Gender Equality: Qur’anic Perspective), (Jakarta: Paramadina, 2001), p. xxix.

[7]Ibn Maẓūr, Lisān al-‘Arab, (Cairo: Dār al-Ma‘ārif, …..), p. 3781.

[8]  Muḥammad Shaḥrūr, Naḥwa Uṣūl Jadīdah li al-Fiqh al-Mar’ah (al-Waṣiyyah, al-Irth, al-Qiwāmah, al-Ta‘aduddiyyah, al-Libās), (Damascus: al-Ahālī li al-Ṭibā‘ah wa al-Nashr wa al-Tawzī‘, 2000), p. 320.

[9]  Nasaruddin Umar, Argumen Kesetaraan Jender Perspektif Al-Qur’an (Arguments of Gender Equality: Qur’anic Perspective), (Jakarta: Paramadina, 2001), pp. 143-172.

[10] Ratna Batara Munti, Perempuan Sebagai Kepala Rumah Tangga, (Jakarta: Lembaga Kajian Agama dan Gender, Perserikatan Solidaritas Perempuan, dan The Asia Foundation, 1999), p. 56.

 

[11] M. Quraish Shihab, Wawasan al-Qur’an; Tafsir Maudhu’i atas Pelbagai Persoalan Umat, (Bandung: Mizan, 1998), Cet. ke-7, h. 315

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