When commenting on this phrase, it is very important here to raise the point that “Islamic law” when addressed by different scholars in different ages and periods, it has been dragged under different definitions and from different angles; according to the time, place and historical circumstances. However, with these different definitions, we can’t ignore two facts: the first one is that Islamic law has been generally interpreted and written down by men, which means that Islamic law has always been viewed in definition by the same gender (men) that even though if they didn’t mean any kind of discrimination against the other gender (women), it would include subjectivity. The second fact is that the way we –current scholars and students- view the traditional interpretations of the four main classical Sunni madhaheb of Islam –as the main sources of Islamic law- is totally different from how it was seen and interpreted before as thousands of new ideologies, philosophical thoughts ad terminologies have emerged since that time until today. Therefore, I wouldn’t argue that the way Islam has been interpreted in “Islamic Law” –by men- is the primary trigger for discrimination against women in the present day Egypt, but I would say it is one of the branches under the one main trigger which is the societal and economic pressure of thinking. As it will be illustrated in details (in the beneath paragraphs), the very fact that Islamic law has been approved and confirmed by men on the behalf of other men and how judges and jurists have been always men who follow certain social and economic order (according to the age they live in) prove in itself that from the very beginning Islamic Law as a kind of interpretation of Islam followed the societal order of men as first class citizens and women as second class citizens. Under that main trigger –societal and economic pressure- we witness today many cases of discrimination against women and violation of freedom of belief that have no relation with the religion such as honor crimes that is applied by both Muslims and non-Muslims in the name of religion, divorce/Khul procedures that may take a long time in courts for poor women and short time for rich women (economic order), and finally the “codified Islamic law”* that went through a process of codification -by the state- that deprived Muslims from choosing their Madhhab and/or interpretation of the religion.
It is important to highlight the point that Qur’an puts laws against some abusive marriage practices that existed before Islam such as a son who acquires his deceased father’s wife as a part of his inheritance or in a case of secret marriages when women had no power. However, with a direct examination of how schools of law viewed the contract of marriage, we would observe that they put the licit sexual intercourse as the primary motivation and the most important effect of marriage contract. For example, the Maliki fiqh focuses on husband’s enjoyment of his wife’s body instead of focusing more on marriage as companionship, respect and love for one another as mentioned in textual sources. Although jurists took the notion of consent by both parties seriously for a marriage to be legal, all legal schools agreed that a girl’s father –in her legal minority- had the right to marry her to whomever he chooses without consulting her. Although the same goes with a son in his legal minority, most jurists’ discussions of marriage of minors focused more on girls suggesting that this was the more common social practice (Tucker). This supports my point that societal behavior had its own effect of jurists’ interpretation of Islamic law and at the same time we can witness the effect of this belief on today’s Egypt where very young girls get married by their guardians for many reasons under the name of religion. Some guardians actually quote from Islamic law that “a guardian has no right to turn down acceptable and good proposal for their daughters”. This also is put under the societal assumption that women are vulnerable –especially those who are virgins- and they need protection and guardianship, especially if she is not following the condition of Kafaa, the consent of the guardian is needed. The question here is: what if she is 30-year-old woman and still virgin but her guardian doesn’t agree?
Also, with respect to the condition of Kafaa that should be applied on the proposed man, jurists obliged the man to be in a higher standard than the woman as she can’t be degraded to his standards; on the contrary, he should uplift her. This is considered to be a good condition for women’s sake but the system created here a kind of a social order that depends on the economic status of the pride and groom that in turn affected the marriage and divorce process in certain ways. For example, in the marriage process, a proper “mahr” that should be delivered to the bride before marriage is argued by the jurists to be depending on her background and qualities that is derived from her social and economic status and how the society perceives her putting an emphasis on her virginity and physical attraction. This had its own effect in today’s Egypt on how women who aren’t virgin are second class citizens in marriage under the virgin ones. Also, it created the importance of marrying a higher in status man to uplift her status in the society. Another example in the divorce process, a woman has the right to ask for divorce in the case of “general harm” –whether mental or physical- (except for Hanafi school) however, this harm has to be proved by the judge – a male judge- and it also depends on the woman’s social and economic status. If she is a poor-class woman and she is harmed, the judge looks at her case differently from a woman who is high-class who would be granted the right of “harm” right away. This is absolutely unfair as the judge treat women according to their social and economic status not according to them being equal human-beings. Besides, the process of divorce itself always gives the man the upper hand in ending or resuming marriage according to his desire without the woman’s consensus (Tucker) (Shaham). This position resulted in a hierarchal status in the benefit of the husband who provides money in a form of maintenance that he can end at anytime with immediate divorce, and women provide conjugal society in return (Abu-Odeh). However, in the current 21st Egyptian society if a woman succeeds to get her divorce or Khul after a complicated and very hard process through which she has to get witnesses to prove harm against her (in the case of divorce) or she may lose all her money rights from her husband and pay a lot of expenses for the attorney (especially in Khul that is more accessible by rich women), she is perceived and considered as a cause of shame for the family and that she disregarded her children’s promising future within a united family. Also, mostly after divorce men refuse to pay their children expenses that leave a huge burden on the woman as a single mother (Maugiron, Dupret).
As a result of this and with the process of creating civil code and reconstruction of Islamic law in Egypt, a new law emerged that has nothing with Islamic law but follows the idea of the wife’s obedience to her husband called “obedience law” by which the husband has the right to return his wife to the marital home. However, feminist groups started pushing for legal reform of Taqlid law as it resulted in inequality in the family. Feminists demanded equal access to divorce for women and men, elimination of child of marriage, the end of the legal institution of obedience within marriage and prohibition of polygamy. The “obedience law” is abolished now, but religious elites, allied with the societal concern pressures and different religious groups declared women’s demands to be an assault on God given rights (Abu-Odeh).
Although “obedience law” no longer exists in Egypt, I would argue that a series of personal status laws
has started to emerge in regard with women and minorities that its creators based these laws’ legitimacy on Islamic law. However, some of these laws don’t have any basic criteria in Islamic law such as cases of honor crimes in which judges go lightly with criminal husbands/guardians, and “freedom of belief” laws cases that –I would argue- although got its basics from Islamic law, it extracts its right of existence from the public, especially the Muslim majority against apostates and non-Muslims minorities.
The other side of the coin of discrimination is Honor crimes. Honor crimes are a collective societal behavior against women that is not related to Islamic law by any means; however, judged by society that the woman has violated the unwritten rules of honor and therefore she has brought shame to her family. “Engaging in a sexual activity outside the framework of marriage that is not approved by the guardian of her family is considered as a social crime and she get murdered. Honor of the girl resides in her hymen according to the traditional Egyptian society belief, so even women who get raped against their will, they got blamed by their families convicting her of not being modest or just because she left her house” (Siham AbdulSalam). “Legislation constrains specific mitigation for a man intentionally murdering a female in a spousal relationship: Article 237 in the Penal Code: “Whosoever surprises his wife in the act of committing adultery and immediately kills her and the person committing adultery with her shall be punished with a prison sentence instead of the penalties set out in Articles 234 and 236”. In Egypt there is no ‘honor crime’ in law and those who commit such an act are penalized under the penal code and are treated as murderers. However, family members who commit crimes of honor can still benefit from reduction in sentence” (Azza Sulaiman). Abo Odeh states that “the legislature has taken into account the psychological state of mind that hits the husband whose honor has been violated, the most precious thing that he possesses. At the moment that he catches his wife committing adultery he will no doubt lose his reason and kill his wife and her partner”. The judge here is inclined to the society view and pressure that the woman is the honor of the family and he accepts it as a man.
Islamic law is not the primary trigger of discrimination against women. However, the way it has been interpreted by only men and the fact that improvements and re-interpretations of the official main texts is not tolerable anymore in our society, made it a burden on women and non-Muslims to be accepted in a patriarchal society that not only has given itself the right to interpret the religion form the same-angled point of view, but also it granted itself the complete guardianship of religion against women who would violate it –in their point of view-, extracting their power and authority from a collective social and economic behaviors that is implemented harshly on whomever tries to deviate away from it.
Abu-Odeh, Lama, Modernizing Muslim Family Law: The Case of Egypt, 37 Vanderbelt. Journal of Transnational Law (2004)
Bernard-Maugiron, Nathalie and Dupret, Baudouin. ‘Breaking Up the Family: Divorce in Egyptian Law and Practice’, 6 Hawwa (2008).
CEWLA, Siham, Abdelsalam, and Azza Sulaiman. “‘Crimes of Honour’ as Violence against Women in Egypt.” CENTRE FOR EGYPTIAN WOMEN’S LEGAL ASSISTANCE (n.d.): n. pag. Print.
Shaham, Ron, “State, Feminists and Islamists: The Debate Over Stipulations in Marriage Contracts in Egypt”, 62 Bulletin of the School of Oriental and African Studies (1999).
Tucker, Judith, Women, Family and Gender in Islamic Law, Cambridge University Press:2000