AN APPRAISAL OF THE IMPACT OF GENDER EQUALITY ON WOMEN’S RIGHT TO WORK OUTSIDE MATRIMONIAL HOME IN ISLAMIC LAW
CHAPTER TWO
LITERATURE REVIEW
2.1 INTRODUCTION
Our focus in this chapter is to critically examine relevant literature that would assist in explaining the research problem and furthermore recognize the efforts of scholars who had previously contributed immensely to similar research. The chapter intends to deepen the understanding of the study and close the perceived gaps.
2.2 GENDER
Gender refers to the economic, social, political, and cultural attributes and opportunities and constraints associated with being female and male. In other words, gender relates to the socially and culturally constructed roles for men and women. For instance, the gender roles of men as owners of property, decision makers and heads of the household are socially, historically and culturally constructed and have nothing to do with biological differences. The social definitions of what it means to be female and male vary from one culture to another and change over time. Mason (1984) notes that there is hardly any society where men and women occupy equal status. This is because each individual sex has specific roles to perform and there are varying ways of awarding merit within these roles. Aluko and Ajani (2006: 147) observe that in Nigeria, gender does not only create duality of femininity and masculinity, it also places women lower in a hierarchy in which femaleness is generally valued less than maleness because of their socially ascribed roles in the reproductive sphere.
2.3 GENDER EQUALITY
Gender equality, also known as sexual equality or equality of the sexes, is the state of equal ease of access to resources and opportunities regardless of gender, including economic participation and decision-making; and the state of valuing different behaviors, aspirations and needs equally, regardless of gender.
Gender equality is the goal, while gender neutrality and gender equity are practices and ways of thinking that help in achieving the goal. Gender parity, which is used to measure gender balance in a given situation, can aid in achieving gender equality but is not the goal in and of itself. Gender equality is more than equal representation, it is strongly tied to women's rights, and often requires policy changes. As of 2017, the global movement for gender equality has not incorporated the proposition of genders besides women and men, or gender identities outside of the gender binary.
UNICEF says gender equality "means that women and men, and girls and boys, enjoy the same rights, resources, opportunities and protections. It does not require that girls and boys, or women and men, be the same, or that they be treated exactly alike.
On a global scale, achieving gender equality also requires eliminating harmful practices against women and girls, including sex trafficking, femicide, wartime sexual violence, gender wage gap, and other oppression tactics. UNFPA stated that, "despite many international agreements affirming their human rights, women are still much more likely than men to be poor and illiterate. They have less access to property ownership, credit, training and employment. This partly stems from the archaic stereotypes of women being labelled as child-bearers and home makers, rather than the bread winners of the family. They are far less likely than men to be politically active and far more likely to be victims of domestic violence."
As of 2017, gender equality is the fifth of seventeen sustainable development goals (SDG 5) of the United Nations. Gender inequality is measured annually by the United Nations Development Programme's Human Development Reports.
2.4 THE NEXUS BETWEEN GENDER AND SEX
In discussing the human rights of women, certain basic concepts require explanations and clarifications; they are “sex” and “gender”.
Sex is the category into which humans and most other living things are divided on the basis of their reproductive functions. It refers to biological attributes of men and women (Lexicon Dictionary ). These attributes are universal, biological, generally unchangeable and natural. Sex differences are basically the biological differences between men and women such as sperm production, pregnancy, lactation etc.
Gender, on the other hand refers to social and cultural constructed roles, attributes, and responsibilities assigned to men and women in a given society (Collins English Dictionary).
The resulting relationships between men and women could be one of connection, conflict, inequality, competition, separation, support, and indifference, or a combination of all these.Both men and women are to think, act and respond to several social situations according to the dictates of their gender.
Gender relations are manifested generally by unique power relation between men and women especially in social, political, economic and cultural spheres of life. No wonder, women constitute the majority at the button rung of the ladder of the society. In Nigeria for example, some of the clear manifestations of gender practices include but are not limited to following:
i.Low value for women and preference for male children
ii.Early and forced marriages
iii.Harmful widowhood rites and practices
iv.Female genital mutilation and other harmful traditional practices
v.Discriminatory laws and practices in the public sphere
vi. Domestic violence
vii.Sexual assault/harassment/inducement
viii.Exploitation and trafficking
ix.Subordinate position of women
x. Stereotyping of profession
xi.Low participation of women in public service
Several institutions have been identified as the avenues where gender is socially constructed. These include the family, religious institutions, educational institutions, government, media and culture. Gender roles are learnt from all these sources, which emphasize “appropriate behavior” gender stereotypes, roles and attributes.
From the foregoing, it is abundantly clear that most stereotypes associated with women as being weak, emotional, jealous, superficial, and intellectually inferior, lack any rational basis other than social constructions.
2.5 SEX AND GENDER DIFFERENCES
While thereare observable physical and anatomical differences between men and women, there are also different social roles for both men and women as well. The social scientists generally and sociologists, psychologists and anthropologists in particular have variously examined the reason for the gender differences in our society.
i. Hormonal differences- Hormones are bodily secretions, which among other functions regulate the development of the reproductive capabilities of both male female. Men produce more testosterone and androgens while women produce greater amounts of progesterone and estrogen. The nervous system is closely linked in activity with the hormones, thus influencing behavior, personality and emotional disposition.
Animal experiments have provided some evidence of a link between Androgens and aggressive behaviour. Also research seems to show that hormones have indirect effects on the brain development of male and female. The right and left hemispheres of brains are believed to specialize in different tasks. The right hemisphere generates visuo-spatial-abilities while the left hemisphere enhances language and analytic skills. Two researchers in this area, J.A. Gray and A W. Buffrey assert that the boys are more dominant in the right hemisphere while the girls are more dominant in the left hemisphere. In other words, girls have better language ability while boys excel more in artistic, mathematical and engineering skills (Judith G.1988)
ii. Human Biogrammer – some Anthropologists, most prominently, Lionel Tiger and Robin Fox emphasize the important of human ‘biogrammar’ rather than culture as the primary basis of human behavioural patterns (Tiger L. 1994). They argue further that the biogrammers of men and women although similar in some respect but are different is some important areas Men’s dominant and aggressive dispositions area traced to their genetical make-up while women are programmed by their biogrammers to reproduce and care for children[ Ibid. ].
iii. Sociology- one other explanation of a direct link between genetics and different social roles for men and women has been offered by socio-biologists (L.Drickamer, P. Gowaty, 2010). Just as Darwin proved that physical characteristics evolve in species, they assert further that behaviour too evolve in as they are ‘governed by genetic instruction’ Barash illustrates this by pointing out that each sex uses different methods to maximize its chances of passing on their sexes to further generations. Men are said to produce millions of sperm during their lifetime; while women produce an average of 400 eggs, one at a time, during their lifetime. According to Barash, women, because of these biological limitations compared to men usually go for the best males procurable while men become more aggressive in order to attain greater success so as to attract the best and conquer territories in their quest for more power[ David Barash, Sociobiology and Behavior (Elsevier Science 1982).
iv. Physique- The argument goes that since men have greater physical strength than women, and the fact that women menstruate and bear children; men tend to engage more in strenuous tasks such as mining, hunting, lumbering and farming while women engage more in lighter tasks of cooking, child care etc. G.P. Mudrock conducted a cross-cultural survey of 224 societies ranging from primitive society to modern nation states. He found that in all of these societies, sexual division of labour is predominant and that the advantage inherent in division of labour presumably accounts for its universality (Murdock, G. P, 1957)
All the above explanations have been variously criticized by some other scholars particularly feminists who assert that the differences in genetics, hormones, brain and physique cannot explain the subordinate roles being played by women in the society. Rather, they insist that culture is the main factor that assigns roles to men and women.
2.6 THE CONNECTION BETWEEN RELIGION AND LAW
The idea that a religion should shape the social, political, and legal order of the society is as old as man. Following the conversion of Emperor Constantine I of Rome in 313 C.E, Christianity subsequently became the state religion in much of Europe. In the course of time, the Pope began to exercise both the spiritual and temporal authority.
Islam from the beginning of the prophethood of Muhammad (SAW) presents itself as a complete way of life encompassing spiritual, social, political, legal and cultural aspects of life.As Joseph Schacht aptly puts it, “Islam is a religion of action rather than of belief” (Joseph F. 1969) was a British-German professor of Arabic and Islam at Columbia University in New York. He was the leading Western scholar on Islamic law, whose Origins of Muhammadan Jurisprudence (1950) is still considered a centrally important work on the subject.]. Similarly, F.H Ruxton in his book, Maliki Law said:
In Islam, there is but one law and it is the religious law, significant in the word Sharia. In other words, it is the only supreme law: for it emanates from God, who decreed its main bases in the Quran. With Mohammedans the law is also dogma (F.H. Ruxton, (1978).
Following the bitter conflicts between the church and the philosopher- scientists of the 18th century and the consequent phenomenal triumph of science over certain Christian dogmas as espoused by the church, the people in the West have, since then, increasingly felt that religion has outlived its usefulness and has ‘surrendered’ to science once and for all. Sigmund Freud, the renowned psychologist asserts that human life passes through three levels of psychological phases: Superstition, religion and science. He concluded that the society having attained scientific stage has no need of religion any longer. Ever since, religious prescriptions generally have been regarded as reactionary, retrogressive, backward and superstitious (Qutb, M. 1964)
Accordingly, the Western society had to separate itself from the church.Secularism as a state policy became politically imperative and has remained ever so. What this means is that, religion cannot play any influential role in the formation and execution of laws, regulations and policies of the state.The Church has learnt to content itself with the new role, while justifying this with a popular quote in the Bible, “Render unto Caesar the things that are Caesar’s and to God the things that are God’s. (Mark 12:17).
In Islam however, such a dichotomy is not consistent with the essence and import of its message. It believes that everything including Caesar belongs to God and nothing belongs to Caesar that does not belong to God (Ambali, Democracy in Islam, p.21.)
The rejection of the historical understanding associated with secularism does not however imply that Islam does not tolerate other faiths or systems. It recognizes the multi-religious composition of the society.However, the Muslim considers shutting out religion from the dynamics of the society as being harmful for the health of such society. Therefore, the legal order in a Muslim society rests on the Supremacy of the Commandments of Allah in the Holy Quran. Thus one of the opening verses of the Quran says, “This is the book: in it is guidance sure, without doubt.” (Quran 2:1.).
The Quran also recapped that the previous generations of followers of Moses and Jesus were enjoined to abide by the doctrines revealed to these prophets: It was we who revealed the Torah (to Moses): therein was guidance and light.By its standard have been judged the Jews, by the prophets who bowed (as in Islam) To Allah’s will, by the Rabbis and the Doctors of law…[ Quran 5:44.]
Furthermore, the Quran proclaims: …And in their footsteps we sent Jesus the son of Mary, confirming The Torah that had come before him: we sent him Gospel: therein was guidance and light…[ Quran 5:46.]
The Quran further directed that: Let the people of the Gospel judge by what Allah hath revealed therein. If any do fail to judge by what Allah hath revealed, they are those who rebel.[ Quran 5:47.]
The same admonition was given to the Muslims in the next verse, specifically to abide by the dictates of the Quran.The broad outlines of legal provisions in the Quran are meant by Allah to guide all those who seek His good pleasure to ways of peace and safety and leads them out of darkness unto the light.
From the foregoing, one can deduce that since Allah is neither male nor female and He is omnipotent and omniscient, the injunctions given to His creatures are meant to make life easy, pleasant, just and orderly. Against this background therefore, it is worthwhile to explore and review the position of Islamic law on Women’s Human Rights.
2.7 THEORETICAL FRAMEWORK
Theory of Natural Law
Theory of Natural Law (the autonomous individual) is associated with Hellenistic and Roman periods. The natural law theory is premised on principles of justice and right reasons which are natural, unchangeable and eternal. Natural theory is the most commonly accepted theory of and associated with rights with the substantial work of John Lock who developed the philosophy of humanism and political activity; that people are human beings who are all equal and worthy of basic respects (Hoffman & Rowe,2006; Davis, 2012). The theory simply envisages that humankind was previously living in the state of nature with freedom (rights) to determine self actions, equality, and none was subjected to the whims of the others. But with emergence of some vulnerabilities and hassles which later characterized the state of nature, people got into an agreement (contract) to form a political authority in order to regulate their conducts and also ensure the protection of their natural rights which include life, property, liberty etc. (Dixon & McCoquodale, 2003; Shaw, 2003; Hamid, 2007).
CHAPTER THREE
ISLAMIC PERSPECTIVE ON THE CONCEPT OF GENDER EQUALITY
- INTRODUCTION
Women’s rights in International law emerges today as an intellectually exciting, rapidly developing sub-field of International Human Rights law. Like other branches of international law, international human rights law relies primarily on national mechanism for their enforcement. Regional and international mechanism would only be applied where a state is unwilling and unable to enforce them. Therefore, the application and enforcement of international human rights law are often circumscribed by the various cultural views of the diverse peoples of the world.This chapter seek to examine Islamic perspective of gender equality.
- ISLAMIC PERSPECTIVE ON GENDER EQUALITY
There are many writers in the area of Gender Equality and Women’s Rights in Islam. It is understatement to say that women’s human rights condition today in the world is appalling.
Recent efforts to document the real situation of women world-wide have produced alarming statistics on the economic and social gaps between women and men. According to the UN, Women are the majority of the world’s poor and the number of women living in rural poverty has increased by 50 per cent since 1975. Women are the majority of the world’s illiterate; the number rose from 543 million to 597 million between 1970 and 1985. World-wide, women earn less than 30 to 40 percent less than men for doing equal work. Women hold between 10 to 20 percent of managerial and administrative jobs in manufacturing; and women make up less than 5 percent of the world’s heads of state (UN Fact Sheet No 1994).
Women’s human rights under Islamic Law offers a special challenge going by the general belief in western and westernized circles that Islam, most remarkably denigrates women. This assertion is partly justified by the interpretational mechanisms of Islamic law being employed by many traditional Islamic jurists who have ideologically constructed sanctioning bases for the discriminatory gender practices against women in the society in the light of their own specific, time bound cultural experiences. Furthermore, the political and cultural domination of the Muslim societies have arrested the growth of Islamic thought leading to the rather panicky decision of the then scholars to declare as closed, the gate of independent legal reasoning in the light of contemporary challenges. Thus, for the past three hundred years, Islamic jurisprudence has remained frozen, rigid and seemingly unalterable.
For long, Islam, despite its outstanding contributions to human civilization has been erroneously regarded as a factor of cultural stagnation and institutionalized human rights abuses. This poor characterization has tended to make contemporary gender studies often in conflict with Islamic culture, something suggesting rather erroneously that Islam stands in the way of full realization of the humanity of the womenfolk as against other “accommodating” civilizations. These assumptions are easily defeated by the preponderance of categorical information in the Quran that are affirmative of various categories of human rights in an unprecedented manner.
The idea of religion still playing a dominant role in shaping of human lives is vastly eroding in the West and other western influenced societies.However, the Muslim society is still bound by the dictates of the Quran, and as such there are bound to be differences in social and cultural outlook. (Abdullah D. 1982)
Muhammad Ahmad Isma’il Al-Muqaddam[53] in his book Audatul Hijaab his approach to woman as a gender categorized them in to three positions:
Woman as mother: The author appreciates the way Islam elevated women, always attach the respect of her with Allah’s worshiping as it is provided in Qur’an“…And that ye be kind To parents…”[54] In this verse, the parent should be obeyed and respected by their children, and it also provides that when children addressing their parents, they should do it with due respect and they should be given whatever they requested from their children. He further said that this obedience and respect is not limited to Muslim women mothers only, but extends even to non-Muslim women as mothers.
Woman as daughter: Islam does not differentiate between female and male children in terms of parent emotional attitude towards both genders, he made reference to Qur’an 16 verse 90 and chapter 5 verse 8, these verses commended us to give equal treatment to both gender as children, no preferential treatment should be given to either one of them. It is not even allowed to make endowment for the benefit of the male children with exclusion of women gender, if that happens, the waqf (endowment) should be declared null and void even after the death of the testator.[55]
Woman as a wife: the Islam blessed human beings with marriage and put it as way of getting legitimate children without which legal reproduction should not be made. “We did send apostles Before thee, and appointed for them wives and children: And it was never the part of an apostle to bring a Sign Except as God permitted…”[56] Similarly, Allah (S.W.A) appreciates the way good people ask him for family in general (wife and children). :And these who pray, “Our :Lord! Grant unto us wives and offspring who will be the comport of our eyes,…”[57] From the above verses, it is clear that male are blessed with women and it is for them to thank Allah for the Ni’ima (blessing) made to them and they should be responsible and questionable for that. It is this approach the author made to show that the position of women under Islamic legal system is highly recommended. In his discussion, he did not expressly mention the position or the right of women to work outside home under the Shari’a.
3.3 THE CONCEPTUAL BASIS OF HUMAN RIGHTS IN ISLAM
Human rights is not a strange concept in Islam. Apart from the foundational and structural consideration of the subject matter from the Quran and other basic sources of Islam, it is worthy to note that the early Islamic society produced the first written constitution under the leadership of Prophet Muhammad (SAW) in the Gregorian year of 622, more than thirteen hundred years before the Universal Declaration of Human Rights envisaged a modern pluralistic, religiously tolerant Free State in 1948. The Medina Constitution lit the torch of freedom by establishing a Free State for a pluralistic community composed of Muslims, Jews, and pagans; and it is the first of its kind in the history of human civilization ( Constitution Society).
This constitution guaranteed the rights of the multi-cultural Medina Society over which the Prophet presided; and it was the first constitutional document that replaced tribal, ethnic affiliation as a condition for the grant of citizenship[ Ibid.]. It also established the now famous principle of accession to international treaties[ Anver Emon, Reflections on the Constitution of Madina, 1 UCLA Journal of Islamic and Near Eastern Law 103,133. (2001-2002).]. Thus the Muslims, Jews, Christians, and Atheists of Madinah subscribed to the same legal document under a symmetrical federation[ Mohammed Mamidullah Majmu al-Watha’iq al- Siyasiyya fi al- Ahd al- Banawi wa al- Khaliafa al-Rashisa (1941) cited in, Anver Emon, Reflections on the Constitution of Madina, 1 UCLA Journal of Islamic and Near Eastern Law 103,133. (2001-2002).].
In contemporary times, Muslim nations have come together to adopt the “Cairo Declaration of Human Rights in Islam” in 1990 (Rafi Ahmed, “Islam, Human Rights, and Cairo Declaration”, 2018).
At the meeting of the organization of Islamic Countries on Dec. 2000, the members raised the possibility of establishing an independent body to promote human rights in member states as well as the possibility of preparing an Islamic Charter on human rights in accordance with the provision of the Cairo Declaration of Human Rights in Islam[ Ibid.].
From the foregoing analysis, no meaningful academic discourse of the development of inter-cultural consensus on human rights can be made without discussing the contribution of Islam.
3.4 PREVAILING MISCONCEPTIONS REGARDING WOMEN RIGHTS IN ISLAM
Some misconceptions regarding women’s rights in Islam are prevailing for long time. These misconceptions directly neglect the women, dishonored them and discriminate them. Some people without proper religious knowledge, to dominate the women, to deprive women from their rights as given in Islam and to establish superiority of men over women practice these misconceptions as rule of Islam. But Islam does not support these misconceptions these are direct contradiction of Islamic rules and principles. Some misconceptions regarding women rights are:
“Islam deprived women as in inheritance they are getting half share as compared to men”. There is a misconception in Bangladesh that Islam deprived women in case of right of inheritance. But most of the people do not realize what the place of women in Islam is. In Islam, from the property of her parents a woman is entitled to get 1/2 of the share as compared to her brother but she has no financial liability towards the family. She is entitled to her dower, to get gifts during her marriage and she is not required to spend her income to bear the expenses of the family. Her all expenses are bear by father before marriage and by the husband after marriage (Orakzai, 2014). Besides these, she has right of inheritance in the property of her husband and also in the property of the children.
Unconditionally a man can take four wives at a time”. Another misconception prevailing in Bangladesh regarding polygamy. According to the rules of Islam, maximum four wives might be taken by a man at one time only when he possessed the strength of character to deal justly with them. The holy Quran says. “If you fear that you will not able to deal justly with the orphans, marry women of your choice, two or three or four; but if you fear that you will not be able to deal justly with them, then only one.” (4: 3).
The above rule on polygamy is conditional. The verse specially refers to the justice to be done to orphans. It was revealed immediately after the Battle Uhud when the Muslim community was left with many orphans and widows and some captives-of-war. The treatment was to be governed by principles of greatest humanity and equality. If a man wants to take more than one wife he should have sufficient financial resources to look after the needs of the additional wives that he has taken and he must do equal justice with them in regard to the fulfillment of their conjugal and other rights (Doi, 1992). The logic to justify polygamy is that it prevents divorce of the sick, older and barren wife and to refrains men from extra-marital relationship and also remove social hypocrisy (Marcotte, 2003).
“Consent of bride is not so important for marriage”. Male dominated societies of Bangladesh do not want to give equal importance of the consent of bride like bride groom in case of marriage. They think that consent of the father or guardian is final for the marriage of a girl but Islam does not support it. According to Islam, for a valid marriage free consent of the bride and bride groom is required. Islam has given right of a woman to choose her life partner.
No marriage without dowry”. The most heinous practice in Bangladesh which Islam never supports is dowry system. It has become such social practice in Bangladesh that sometimes marriage cannot imagine without dowry. Some greedy people established system in the society that wife have to bring wealth from her parents and sometimes they torture physically or mentally and even sometimes causes death of the wife by torture for dowry (Ahmed, 1997)
“Women have no right of divorce in Islam”. Though in Islam husband has absolute power to divorce but he may delegates this power to the wife. According to Islam both husband and wife can separate by mutual understanding. Besides these, she may demand separation by relinquishing all claims to the husband.
The main reasons of prevailing misconceptions in Bangladesh regarding women rights in is Islam are firstly not having proper knowledge regarding rules and regulations of Islam; secondly to dominate the women and to establish superiority of men over women; thirdly to deprive the women from their legal rights as given them by Islam; fourthly illiteracy of women and lack of awareness among women are one of the main reasons of misconceptions regarding women rights in Islam; fifthly to neglect the women and to dishonor them and to discriminate them; as most of the religious interpreters are male