When Equality Is Not Enough

But there was one very important difference between the reasons that drove constitutionalism in Europe and North America and the reasons that drove Ottoman-era reformers: whereas the former derived their theories of anti-despotism, rule of law, and constitutionalism from ideals of human equality that in turn were derived from natural law, the latter drew upon the ethical vision of the sharia and notions of the public good to justify their demands for equality before the law and constitutionalism. Furthermore, when Ţahţāwī, Khayr al-Dīn al-Tūnisī, Muĥammad ¢Abduh, ¢Abd al-Raĥmān al-Kawkabī, Rashīd Riđā, and other figures of the nineteenth and early twentieth centuries called for constitutionalism, they were keenly aware of the political backwardness and weakness of the Ottoman Empire in the face of increasingly hostile and ambitious European powers. They saw accountable government not only as a “right of the people” but also as a necessity for the Muslim community to survive. Accordingly, their most powerful arguments were always grounded in the public good of the Muslim community (al-maślaĥah al-¢āmmah) and in the principle that inherited doctrines must be evaluated from the perspective of the public good. Accordingly, constitutionalism in the modern Muslim world was not rooted primarily in a concern for personal rights but rather was seen as a necessary tool to secure the public good. Securing individual rights was certainly necessary, but only insofar as those rights were constitutive of the public good. To put it differently, the concern for personal rights was only incidental to the main aim of the reformist project, which was to secure the health of the body politic so it could stand as an equal in the international arena. 

This approach also manifested itself in family law reform. Muslim reformers approached the subject from the perspective of what was good for the household and of the proper role of the household in contributing to the public good. Writers such as Qāsim Amīn and Muĥammad ¢Abduh criticized certain rules of Islamic law and certain Egyptian traditions on questions such as polygamy, easy divorce, the lack of education for women, and gender segregation, not because these rules and traditions violated an abstract scheme of rights based in equality, but rather because they viewed these rules and traditions as weakening the family, something that in turn weakened the nation and its ability to resist imperialism. Accordingly, they followed two principal strategies in their arguments for change: first, an empirical argument about the degraded state of the Egyptian family relative to its counterpart in Europe and North America, and second, a normative strategy, rooted in disassociating many rules of Islamic law and traditional practices from the Qur’an and the sunnah, thereby creating space for family law reform, without displacing Islam as the overall framework for moral and legal normative judgment.

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Functionally, however, the Muslim approach to equality, rule of law, and constitutionalism did not differ significantly from that of their European and North American counterparts in the nineteenth and early twentieth centuries. Equality throughout much of this period was largely understood as equality in law vis-à-vis the government, such that free men could pursue their interests without fear of government interference—particularly, deprivations of personal liberty through arbitrary arrest—in their lives. It was generally unconcerned with inequality in the social realm, and it took another 150 years of political struggle, and the horrors of the nationalist wars of the twentieth century and the Holocaust, for equality in the realm of social relations to become a central political demand in the world’s democracies. This manifested most clearly in the birth of the human rights movement and the United Nations Universal Declaration of Human Rights in 1948. 

With the growing political salience of the rights of the individual, power hierarchies embedded in the social domain—racial relations, family relations, and the workplace—became the focus of political struggles just as intense as the struggle against arbitrary government power had been in the late eighteenth century. The aim of these struggles was to limit, if not eliminate entirely, the arbitrary power husbands had over their wives, parents over their children, employers over their employees, and whites over blacks (and non-whites generally).

Muslims, whether living as colonized subjects in Muslim-majority lands, postcolonial citizens of Muslim-majority states, or minorities in Western democracies, were not immune from these developments. And while it was quite easy for Muslim reformers of the nineteenth century to see the attractiveness of constitutionalism and representative government, they did not consider the consequences that their political project of limiting the despotic power of the ruler might have on social relations in Muslim society. Just as was the case in the democratic West, however, once the demands for constitutional government began to be articulated in the name of equality, the cries of “Why not me?” followed closely. 

This demand for social equality was articulated most urgently and most insistently in the realm of the Muslim family, where some interpretations of Islamic law—particularly in the Hanafi school, which was the prevailing doctrine in the Ottoman Empire—gave the husband virtually despotic power over his wife. The concern for equality in the family was the fundamental catalyst for the development of what has come to be known as “Islamic feminism,” a movement that seeks to reform the rules of Islamic law to make them conform with abstract principles of gender equality. The reformist movement, although not focused on women’s rights as such, succeeded in creating greater social space for women. Not long after the generation of ¢Abduh and Qāsim Amīn, several prominent Muslim women—such as Malak Ĥifnī Nāśif, known as Bāĥithat al-Bādiyah; Nażīrah Zayn al-Dīn; ¢Ā’ishah ¢Abd al-Raĥmān, known as Bint al-Shāţi’; and Hudā Sha¢rāwī, to name some of the more famous Muslim Arab women of the first half of the twentieth century—took advantage of the expanding public sphere to write publicly. In their writings and social work, they criticized the social customs of their societies as not only being not grounded in Islam but perhaps even being un-Islamic, and they demanded greater rights for women in the family, in society, and as citizens. 

Equality’s ascendance as the highest measure of political justice has only accelerated as a result of post–World War II developments in global politics, such as the decolonization struggle against imperialism, the struggle against apartheid in South Africa, the civil rights movement in the United States, the easy availability of contraception and its role in liberating women from the necessity of reproductive labor, and the internationalization of the human rights movements through instruments such as the International Covenant on Civil and Political Rights (ICCPR), adopted in 1966. Article 26 of that convention provides as follows:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 2(b) of the 1979 Convention on the Elimination of Discrimination Against Women (CEDAW) went even further than the ICCPR in obligating states to not merely ensure that a state’s own law does not discriminate against women but also eliminate discriminatory practices against women that originate in society:

To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women.

Articles 2(e) and (f) confirm the comprehensive reach of CEDAW’s ambition. These provisions require states 

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.

Article 5 of CEDAW further clarifies the duty of states to eliminate social inequality. It states:

Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. (emphasis mine)

As formal equality has increasingly become the touchstone of legitimacy of both the law and entire social orders, the alliance that was possible between Muslim reformers in the nineteenth century and the first half of the twentieth century and women’s rights movements has begun to be more fraught, and now is perhaps at risk of breaking down into two irreconcilable camps: one camp favoring reform within the bounds of the Islamic tradition, and the other, even while claiming to be Muslim, arguing that the international human rights tradition should take superiority over the Islamic tradition if and when the two conflict.

Is it really the case that a commitment to formal equality between the genders is that difficult from an Islamic perspective? After all, very important passages in the Qur’an affirm the abstract parity of men and women. Āl ¢Imrān (3:195), God’s response to believers wonderment at His creation described in the previous four verses, makes this quite clear:

So their Lord responded to them, “Never shall I ignore the deeds of any of you, male or female, you are of one another: so those who immigrated, were expelled from their lands, suffered on account of Me, fought and were killed—I shall certainly erase their evil deeds and bring them to a Garden beneath which rivers flow, a reward from God, and with God is the best of rewards.”

Al-Tawbah (9:71–72) reaffirms this teaching, even using the politically—or potentially so—loaded term awliyā’ (protectors or guardians):

Guardians of one another are the believing men and the believing women: they command what is good, they prohibit what is foul, they establish prayer, they pay the alms-tax, and they obey God and His Messenger. They are the ones to whom God will show mercy. God is mighty, wise. God has promised the believing men and the believing women gardens beneath which rivers flow, dwelling therein perpetually, and fair abodes in the Garden of Eden, but God’s pleasure in them is greater, and that is the greatest success.

Again, in Al-Aĥzāb (33:35–36), the Qur’an reaffirms the essential equality of men and women:

Muslim men and Muslim women, believing men and believing women, the submissive men and the submissive women, the truthful men and the truthful women, the resolute men and the resolute women, the men trembling in awe of God and the women trembling in awe of God, the men who give in charity and the women who give in charity, the fasting men and the fasting women, and the men who are chaste and the women who are chaste, the men who remember God regularly and the women who remember God regularly—God has made ready for them forgiveness and a great reward. And it is not for a believing man or a believing woman—when God and His Messenger have decided a matter—that they remain free to determine their own affair. Whoever disobeys God and His Messenger has gone manifestly astray.

While these verses unequivocally affirm the equal moral worth of men and women before God, and their equal duty to abide by and uphold the norms of divine law, they say nothing of the content of the law they are to uphold and whether the law itself must respect equality between men and women. In many cases, it is easy to establish that the law is the same for men and women: ritual law (with the important caveat of the disparate impact the law of ritual purity has on men and women), the law of the market (e.g., the right to own property, to trade, to enter commercial partnerships), and criminal law are all important legal topics in which formal equality between the genders is the norm. Other areas of the law, however, enshrine gender-based distinctions. These are primarily in family law, the law of public office holding (wilāyāt), and monetary compensation in tort law. In family law, the rights and duties arising out of the marriage contract and the modes of marital dissolution are gendered, as is the scheme of fixed shares in inheritance law. While only some of these gender-based distinctions, particularly those in family law and inheritance, can be expressly found in the Qur’an, and the others are based either on hadiths and companion reports of differing levels of strength (the most important in this regard being the hadith reported by al-Bukhārī and others, in which the Prophet ﷺ reportedly said, “No people that appoints a woman over their affairs shall prosper”), it is very difficult to square the contemporary intuition that gender-based distinctions are inherently degrading with the Qur’an’s use of gender as a relevant consideration in assigning rights and obligations.

Modern reformists have approached gendered distinctions in Islamic law using different strategies. The most ambitious position is eliminating gender-based distinctions entirely. In attempts to reconcile this position with the Qur’an’s use of gender as a relevant category, and Islamic law’s further adoption and expansion of gender as a relevant legal category, the easiest argument is to historicize these usages by arguing that the Qur’anic rule was structured to address a particular people at a particular time and place and therefore need not be binding on us. This approach has not garnered as much support, however, as the more measured position that starts from an assumption that gender is ordinarily irrelevant but that where there is express textual evidence for a gender-based classification, it must be given effect, but only in that case.

There are precedents in the classical tradition for this latter approach. For example, the great ninth-century historian, exegete, and jurist Muĥammad b. Jarīr al-Ţabarī interpreted the hadith about women as rulers to apply exclusively to the office of the caliphate but not to lesser public offices. Along the same lines, modern gender egalitarians who wish to claim respect for the text of revelation can point to the lack of strong textual authority for many of the rules distinguishing between men and women in the laws governing who is eligible for public office and monetary compensation in tort law. Indeed, the Maliki view was that women were entitled to the same compensation as men for similar injuries, up to an amount equal to one-third of the amount assigned to the life of a free Muslim male (diyah kāmilah), and the rule of half compensation only took place for wounds in excess of that amount.

The difficulty with the first approach is that it affirms, by implication, that in some circumstances it is morally unproblematic to use gender-based legal categories, without explaining why those circumstances “don’t apply to us” today. In short, a historicizing argument introduces a relativistic component to equality claims that undermines the very universality human rights discourse seeks to vindicate. The difficulty with the second approach is that it leaves in place rules that apply gender-based distinctions when they are supported by express textual evidence, such as in the law of inheritance and family law, thereby leaving unresolved the tensions between Islamic law and contemporary human rights laws. Neither approach, furthermore, provides an answer to what seems to be an almost insurmountable tension between the revealed word of God—which most definitely is gendered—and contemporary rights discourse, which takes gendered distinctions to be discriminatory and contrary to the dignity of women. Nor does it offer a convincing explanation of the Qur’an’s matter-of-fact treatment of other kinds of social hierarchies (e.g., Al-Naĥl [16:71, 76]; Al-Zukhruf [43:32]) that are inconsistent with today’s egalitarian spirit. 

A fair reading of the Qur’an, therefore, is that of a text with an egalitarian spirit in the moral domain—which it valorizes as the true domain of human value—combined with an acknowledgment of the hierarchies of the social world, which are, in some sense, an inevitable feature of human existence. From an Islamic perspective, this suggests that we should not conflate worth and value in this world with true worth and value, which are always judged from the perspective of the hereafter. This is reflected nicely in the Hanafi distinction between two kinds of inviolability: al-¢iśmah al-mu¢aththimah (moral inviolability), which is foundational for human beings and produces the possibility of moral culpability before God when we injure others, and al-¢iśmah al-muqawwimah (legal inviolability), which refers to the particular remedies we receive in this life for injuries to our person and property. According to the Hanafis, legal inviolability is secondary for human beings because it reduces human beings to objects insofar as it treats them as fungible and assigns to them monetary value, such as what the law does when it assigns a certain amount of compensation for causing a grievous bodily injury to another (e.g., loss of a hand). This Hanafi distinction is significant because it reminds us that although law and secular justice are very important in the formation of the Muslim conception of the good life, they are still secondary to our spiritual reality as servants of God. 

But there is a way this distinction can be misunderstood, and that would be to say the following: because legal rights are only secondary to our true essence as human beings, we can be indifferent to those concerns. This inference is precisely the opposite conclusion of what the early Hanafi masters drew from this distinction: it is precisely because we are both spiritual beings and corporeal beings that we require protection of our corporeal beings in order to fulfill our status as spiritual beings. This requires the creation of a state, a dār, with a capacity for self-defense (mana¢a), in order to provide security to us in our capacity as weak, vulnerable things. The law and the political order, although secondary to our true nature, are nevertheless necessary to protect us from our corporeal vulnerability. A state, according to the Hanafis, provides the might (¢izzah) necessary to provide security to our bodies and our possessions. 

Law, then, is part of a project, which arises out of our inherent vulnerability, to protect our secular interest in securing our physical and personal integrity. When we apply this lens to Islamic law, it is possible for us to understand how it attempts to mediate between our spiritual reality as equals and our material reality of inequality: it tries to remove those material elements of our existence that abase us (dhull) and replace them with those material circumstances that ennoble us (¢izzah). For that reason, it is always the case that when the Qur’an intervenes in the social realm, it does so to lessen the role that arbitrary power can play in the lives of the vulnerable. In the field of family law, for example, it intervenes in the pre-Islamic law of divorce to prohibit unlimited divorces, limiting the male’s prerogative to retract his divorce to two instances, to ensure that the woman is free to exit a bad marriage and seek a new partner in circumstances where the husband would maliciously refuse to terminate the marriage. The same observation can be made about the Qur’an’s reform of the law of dower: by making it a gift to the bride, the Qur’an strengthened the weaker and more vulnerable party. The same can also be said about the Qur’anic reform of the husband’s prerogative of physically disciplining his wife (Al-Nisā’ 4:34): not only does it attempt to create a series of speed-bumps preventing a husband from resorting to violence against his wife, but the next verse authorizes the community to intervene in their affairs if it is apparent that their conflict is escalating dangerously, by dispatching arbitrators to investigate the causes of their conflict. Based on this verse, later jurists in the Maliki school established a system authorizing the public authorities to remove women from their marital homes; place them in safe places; investigate the causes of marital conflict; and even divorce the fighting couple against their will if, in the course of their investigation, the authorities conclude that the couple are incapable of living together peacefully.

This reflects what I refer to as the non-domination principle of Islamic law: numerous social relationships are hierarchical, and depending on time and place, these hierarchies might be beneficial for the subordinated party. The Qur’an’s express legal provisions are always intended to relieve subordinated parties of some kind of vulnerability that has no social function that justifies the attendant degree of subordination. But that does not mean we must limit ourselves to removing the relations of subordination the Qur’an expressly condemns or reforms. Rather, legal reasoning should always be alive to the possibility that certain relations of subordination that were considered socially essential in the past have lost their social justification by virtue of changing circumstances. 

The legal principle “The believer does not abase himself” (al-mu’min lā yudhill nafsa-hu) demonstrates that non-domination is a general principle of Islamic law, not limited to the finite number of express rules from the Qur’an or sunna vindicating this view. The Hanafis cite this maxim in numerous contexts, including the marriage contract. The non-domination principle, however, is not absolute, and accordingly, exceptions are made based on necessity. The employment contract is an excellent example of a relationship that, in its essential features, is a contract of domination and accordingly should be prohibited. It was permitted out of necessity, but the recognition of its fundamentally exploitative character remains in the strict juristic rules that govern the relationship between the employer and the employee. 

Interestingly for our purposes, the great eleventh-century Central Asian Hanafi scholar Shams al-A’immah Muĥammad b. Aĥmad al-Sarakhsī makes the same observation about marriage with respect to women: because it entails subordination to the husband, in principle it should be forbidden because a believer does not abase himself or herself. Marriage, however, was made permissible out of necessity: the necessity for reproducing the species and the necessity for a lawful outlet for sexual desire. Nevertheless, because necessity is what occasions this exception to the foundational principle, the rules of marriage must be structured in such a way as to minimize the subordination experienced by the woman. It is on this basis, for example, that he justifies the Hanafi rule of social equality (kafā’ah) between the husband and the wife. A social inferior, in his opinion, is more likely to abuse the discretionary authority given to the husband than a husband who is the wife’s peer or social superior. (This assumption is based on the stereotype of the lower classes being less educated and refined than the upper classes, and therefore more prone to antisocial behavior, including violence.)

My point in introducing this example is not to suggest that we need to accept Sarakhsī’s conclusions about what kind of subordination is acceptable or what the appropriate means are for remedying or mitigating subordination that cannot be eliminated; rather, the point is that in working out the practical manifestation of Islamic ideals, a well-trained and thoughtful jurist must always take into account the Islamic law’s ethical commitment to non-domination. Furthermore, the ethical commitment to non-domination can serve as a bridge between historical rules of Islamic law (including textual rules), modern applications of those rules, and contemporary human rights norms. 

As a general rule, equality is usually but not always the best way to minimize or eliminate the prospect of arbitrary domination. Equality sometimes fails from the perspective of non-domination because the distributive consequences of a neutral rule might fall disproportionately on one gender rather than the other. The Shafi‘i law of rape provides a good example of circumstances in which a gender-neutral rule can have a perverse outcome and undermine the law’s commitment to non-domination: Shafi‘is believed that, like murder, coercion (ikrāh) was never a legitimate defense to fornication (zinā). Accordingly, they disallowed both men and women from claiming a defense of coercion in zinā cases. This was unfair, however, because women are both physically more vulnerable to sexual assault than men and more likely to be victims of sexual assault. While holding women to the same standards of resistance expected of men is consistent with equality, it is perverse from a distributive perspective and therefore justifies the validity of a gender-based distinction to a charge of zinā, as recognized by Hanafis and Malikis. 

To conclude, equality is indisputably a central Islamic value, but it is only categorically affirmed as a moral value, and it can only be fully and properly vindicated by God on the day of judgment. In the secular world, by contrast, non-domination in the context of the empirical reality of social hierarchies is the most important Islamic legal value. The non-domination principle, by its nature, is dynamic: it authorizes Muslims to update the application of the universal principles of Islamic law in light of current conditions. For example, certain kinds of domination that in the past may have been necessary are today moot, and new conditions may lead us to recognize new kinds of domination that require new legal responses. A commitment to understanding Islamic law as based on an ethic of non-domination, moreover, gives Muslims a way of engaging in legal ijtihād that is motivated by egalitarianism, without forwarding arguments that undermine the moral integrity of Islamic law.