Interpreting Islam, Modernity, and Women's Rights in Pakistan

A. Weiss

• Publisher: Palgrave Macmillan
• Year: 2014
• ISBN:
  9781137389008
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

In Pakistan, myriad constituencies are grappling with reinterpreting women's rights. This book analyzes the Government of Pakistan's construction of an understanding of what constitutes women's rights, moves on to address traditional views and contemporary popular opinion on women's rights, and then focuses on three very different groups' perceptions of women's rights: progressive women's organizations as represented by the Aurat Foundation and Shirkat Gah; orthodox Islamist views as represented by the Jama'at-i-Islami, the MMA government in Khyber Pakhtunkhwa (2002-08) and al-Huda; and the Swat Taliban. Author Anita M. Weiss analyzes the resultant "culture wars" that are visibly ripping the country apart, as groups talk past one another - each confidant that they are the proprietors of culture and interpreters of religion while others are misrepresenting it.

Chapter 1

Introduction: Women’s Rights and Islamic Concerns with Ijtihad over those Rights

Ijtihad—interpretation. In the many years I’ve been conducting research on women’s rights in Pakistan and in other parts of the Muslim world, this one term seems to rise to the top whenever I question how someone has reached the conclusion that they hold about women’s rights, especially in modern times. Despite formal laws or policies, divergent viewpoints exist as individuals or groups conduct ijtihad, integrating understood Islamic norms, mores, and values with perceptions on society. Aside from how this terminology is used in the formal classical sense, discussed below, it has become an everyday concept in popular discourse, and it is this conception that is being interrogated here.

This is a book about reality and promise, not a book about rhetoric. It is about the reality of how different Muslim communities are interpreting—in this case within Pakistan, but it is a phenomenon occurring worldwide—the intersections of Islam and modernity, and where women’s roles and rights fit into that equation. Many Pakistanis hold the view that only one version of Islam is practiced—or should be practiced—but what that version consists of is heavily contested; in other words, there is no “one version.” Compounded with this, many people essentialize the rights Muslim women have, as if everyone shares and embraces a one-dimensional view of women’s rights. This is categorically incorrect as there are many prevailing views within just one family, one neighborhood, one community in Pakistan, and virtually no consensus. What is it that sets groups apart, that enjoins demonstrative reactions to others’ interpretations of the place and position of Islam and of women in society? It is ijtihad. In seeking to comprehend the contours of difference, we may also find common grounds of understanding of the rights women should have in modern times, acceptable within Islamic society and unfettered by political posturing which too frequently subverts efforts to engage in constructive discourse.

The concept of ijtihad itself has varying meanings. In brief, it was through a practice extant during the classical period of Islam when accomplished religious Sunni jurists and scholars, through personal efforts independent of any particular Sunni school (madhab) of jurisprudence (fiqh), would reach a decision based on their own understandings of law, tradition, and acceptable actions in Islam. They would issue a fatwa (legal pronouncement), and consider this to be an interpretation that would be included as a source of sharia (Islamic law).¹ This occasionally led to the creation of a new madhab, though on occasion was criticized as either hawa (personal opinion, often understood as evil desires) or ‘aql (human reason), without any basis in the Qur’an, Sunnah, or other early precedents and hence not be admissible as a source of religious law. The “doors of ijtihad”—opening new possibilities of interpretation—are said to have closed some 1,400 years ago among Sunni practitioners, and there would be no further innovations on that front.

Religious scholars have long conducted some form of ijtihad in response to social challenges. While in the orthodox sense, ijtihad is only to be carried out by a qualified religious scholar, we find today that political and social leaders frequently posture themselves as such to promote their understanding of what Islam says about something—whether they use the terminology of ijtihad or not—and encourage their interpretation to be embraced by their constituencies. The issuance of fatwas has become nearly commonplace and often controversial throughout the Muslim world.²

Khalid Mas’ud (2009: 47) argues that taqlid, the following of a distinct madhab and hence school of jurisprudence, had by the eighteenth century in South Asia become a symbol of identity and captured a social attitude. Yet ijtihad remained an important practice in the subcontinent, necessary to respond to the new challenges created by British colonialism and essentially was a requirement for becoming a mufti (an interpreter or expounder of Islamic law) or a qadi (legal scholar) in those times. Muhammad Iqbal, the philosophical founder of Pakistan, captured the necessity to continue to practice ijtihad in his well-known Reconstruction of Religious Thought in Islam when he wrote:

The only course open to us is to approach modern knowledge with a respectful but independent attitude and to appreciate the teaching of Islam in the light of that knowledge, even though we may be led to differ from those who have gone before us.³

Mas’ud (2009:84) avers that Iqbal spoke of ijtihad in the plural sense, of “interpretations,” and that “he recognized the significance of collective ijtihad instead of individual ijtihad.” Elsewhere Mas’ud (2012:43) argues that the act of interpretation is a “social construction” that reflects the social environment and concerns of the time. Qasim Zaman (2012:75) observes that the term has taken on a new vitality and meaning in contemporary times,

Few terms have been invoked more often in modern intra-Muslim debates than ijtihad. Modernist intellectuals have frequently invited their coreligionists to rethink their dogmatic certainties in terms of ijtihad; and the Muslim governing elite have no less frequently justified their legislative and judicial measures as forms of ijtihad. Since the late nineteenth century . . . many Muslims have come to explicitly reject the authority of the medieval schools of law in favor of unmediated recourse to the Islamic foundational texts . . . Ijtihad has had an important place in this reconfigured terrain.

Zaman argues that several modernist Sunni ‘ulema have expressed grave misgivings about how ijtihad is operationalized today as many professing it set aside “time-honored methods” resulting in “interpretive anarchy.” Our concern here moves beyond Zaman’s analysis of what occurs when religious scholars conduct ijtihad as it instead focuses on the cacophony of voices claiming “this is what Islam says” without necessarily having substantive grounding in methods or texts. It is this everyday ijtihad that often takes us beyond interpretive anarchy and into undocumented realms of belief and practice. This is of compelling importance when we delve into the arena of interpretations on women’s rights.

What is meant by women’s rights is a contentious issue today worldwide, whether in industrialized capitalist states, economically underdeveloped postcolonial states or in the economically variable Muslim majority states. Patriarchy remains overwhelming prevalent nearly everywhere. There are 57 million more men than women in today’s world: globally, women are 49.6 percent of the population while in Pakistan they comprise 48.6 percent.⁴ Women account for two-thirds of the world’s 796 million adult illiterates and gender disparities in adult literacy rates remain wide in most regions of the world. This is more exaggerated in Pakistan than in many other world areas as 57 percent of adult women have received no education whatsoever while an additional 16 percent have received only primary education. In effect, nearly two-thirds (73 percent) of adult women in Pakistan are uneducated (NIPS 2013:39). Women’s participation in the global labor market for the past two decades still hovers at just over half, while men’s steadily remains over three-quarters⁵; in Pakistan, merely 13 percent of workers in nonagricultural sectors are women.⁶ Women constitute roughly only one-fifth of elected members of parliaments worldwide as well as in Pakistan.⁷ Limiting marital choices, access to education, participation in labor markets, having the ability to introduce legislation and change laws, and the right to life itself indeed has enormous implications for our understanding of women’s rights.

What constitutes accepted roles and rights of women provide for fundamental values upon which Muslim social order has historically been constructed. As Lila Abu-Lughod (1998: 3) notes, in the postcolonial world, women have become potent symbols of identity, society, and the nation. The late Ernest Gellner (1983: 33) has written that Islam has provided a common moral language that has unified disparate communities in the past; its propensity to do so now and in the future, its ability to interrogate, renew and reform its values—islah and tajdid—is being challenged on a number of fronts, the most compelling of which concerns the rights of women. Indeed, contemporary Muslim societies are undergoing unprecedented social change as Muslims are rethinking and renegotiating the contours of traditional society, particularly women’s place in the larger social order. Women’s place, as Farida Shaheed (2011: xi) has observed, is not static despite the myth “that women’s struggles for their rights are alien to societies that have embraced Islam.” Instead, women have mobilized throughout the Muslim world, and particularly in the past century, to identify and affirm rights, albeit what these comprise are contested terrains (Mirza 1981; Shaheed 2011). Many postcolonial Muslim states, in particular, are struggling to identify the trappings of colonization and Westernization that have encroached upon their social norms, values, economies, polities, and current legal structures. Revitalized Islamic worldviews combined with the engendering of Muslim civil society are raising profound questions, notably in conceptualizing women and rights as being central to this discourse. As societies are negotiating and clarifying new interpretations under rapidly changing circumstances, ijtihad is often invoked to justify resultant views. One verse in the Qur’an, Sura 4: 34, particularly animates this discourse more than any other,

Men have authority over women because God has made the one superior to the other, and because they spend their wealth to maintain them. Good women are obedient. They guard their unseen parts because God has guarded them. As for those from whom you fear disobedience, admonish them, forsake them in beds apart, and beat them.⁸

This verse places concrete limits on women’s social actions by placing them under men’s jurisdiction, and presumably allows for violence against women. It is often referred to as one of the reasons for why Muslim laws cannot grant full equality to men and women. Two transnational NGOs, Women Living Under Muslim Laws (WLUML) and Musawah, encourage research on understanding the original intent of Islam and sharia before it became subverted by patriarchy and patriarchal interpretations of the Qur’an,⁹ advocating that there are other ways this and other verses that seemingly intrude on women’s rights can be translated and understood.

At the same time, greater pressure exists within the international arena for asserting women’s rights at the level of states becoming Parties to international human rights treaties. Foreign policies and development assistance is often tied to human rights records, and both donors and Western governments shy away from supporting those states which are condemned by global popular culture in their treatment of women and their treading on women’s rights. The stresses and pressures placed upon states to address women’s rights are evident in the following statement made in The Report of the Commission of Inquiry for Women in Pakistan:

No community or nation is an island anymore, and Pakistan cannot remain unwashed by the rising global currents. It needs to address its domestic issues in ways that are in some harmony with the international perspective and universally accepted norms. If it does not do it now, it will be compelled to do it later, after much damage. (Commission of Inquiry for Women 1997)

Islamic republics, for myriad reasons, often become States Parties to international treaties regarding women. Ann Mayer (1999) shows that Muslim states often ratify UN conventions, but they also register numerous reservations based on their adherence to “higher laws” that, they claim, “the international community is powerless to change.” She contends that, in the case of women’s rights issues, the goal is to convince the global community that their reservations are compatible with women’s equality. These reservations often serve to free states from having to look deeply into their existing laws and make them comply with a given convention’s goals. But having so many reservations—such as we see when Muslim states became Parties to the Vienna Human Rights Convention or the Beijing Platform for Action—waters down the original strength and potency of an instrument.

As an example, more than two-thirds of UN members—166 countries—are States Parties to the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), of which 22 are Muslim majority states.¹⁰ States Parties to the Convention are obligated to review the impact of existing laws on women, change those laws which discriminate against women, and submit periodic reports to the UN Division for the Advancement of Women (DAW) on their progress. CEDAW’s principle of State Obligation requires States Parties not only to bring their domestic law in line with the Convention, but also to ensure the practical realization of rights by undertaking extra measures to implement enabling conditions so that women’s capacity to access the opportunities provided is enhanced. Article 5 asserts that States Parties must strive to modify “the social and cultural patterns of conduct of men and women” to eliminate prejudice based on stereotyped beliefs of the inferiority of women.¹¹ Most Muslim states have voiced concerns that some key elements of CEDAW may be contradictory to Islamic tenets, despite the lack of consensus on what Islam supports and advocates regarding women’s rights.¹² CEDAW blurs the lines separating the public and private spheres, and is the first international human rights instrument to do so.

The fluidity of most interpretations of what constitutes “non-discrimination” and women’s rights depends in large part on political context, more so than economic or social contexts. However, there also seem to be some issues that Muslim states find difficult to resolve, especially those states that have set their internal political discourse within an Islamic framework. These issues manifest particularly in regard to female inheritance and other aspects of Muslim family law. The inherent contradictions for a state to negotiate common ground between conflicting views on women’s rights are indeed formidable.

The example of what occurred in Tunisia in the 1950s reveals how different the interpretations of women’s rights are in different Muslim majority states. In this predominantly Maliki fiqh¹³ environment, then president Habib Bourguiba had declared it was incumbent on the state to conduct ijtihad in its efforts to modernize, and therefore provided women unprecedented rights under the Tunisian Personal Status Code. This extraordinary legislation came into effect on January 1, 1957, two and a half years before the adoption of the new state’s Constitution. It outlawed polygamy on the grounds that the Qur’an only allowed for it provided a man would treat each wife equally, but that was not actually possible. Mohammad Talibi, a distinguished Tunisian expert on Islamic law, argues for a markedly different interpretation of men and women’s respective rights in Islam. He claims that many verses in the Qur’an affirm that equality is absolute, that “women and men are created from one entity” and that,

Men and women are, from the beginning, at the same metaphysical level. It’s the project of God to create them equally. Only one verse says women—not men—are more adapted for some things, and men are adapted better for other things. This can be interpreted as differences, but not a question of equality.¹⁴

Indeed, Bourguiba’s emphasis on political and economic transformation replete with changes within the family to achieve these goals was the first challenge of the Tunisian state’s modernity project. Its impact on the cultural framework was so pervasive that all subsequent legal efforts to eliminate discrimination against women in Tunisia can only be regarded as incremental. Katerina Dalacoura (1998: 151) argues that in developing the Code of Personal Status—as well as ...

Table of contents

• Cover
• Title
• 1 Introduction: Women’s Rights and Islamic Concerns with Ijtihad over those Rights
• 2 Legal Reforms and State Policies Affecting Women’s Rights
• 3 Mainstream and Popular Perceptions of Women’s Rights in Pakistan
• 4 Progressive Women’s NGOs’ Interpretations of Women’s Rights
• 5 Orthodox Islamist Interpretations of Women’s Rights
• 6 The Tehrik-e-Taliban in Swat
• 7 Moving Onwards
• Notes
• Bibliography
• Index