Free and Equal under the Qur'an
by Havva G. Guney-Ruebenacker
With recent heated debates over the role of Islam in the Iraqi Constitution, Islamic law and more specifically its primary source, the Qur'an, are again at the center of criticism. One of the more persistent criticisms has been that inequality of women is an inherent element of the Qur'an and therefore, any legal code traced back to the Qur'an would inevitably be detrimental to women's rights.
It is one of the most astonishing ironies of human history that two of the areas which the Islamic civilization excelled in for centuries, namely women rights and human freedoms, today become the very subjects of unceasing criticism directed towards Islam and Muslims. Getting beyond the vicious cycle of polemics and apologetics, many Muslims today recognize that we can and must create a new dawn for future Muslim generations and elevate the Islamic world to its distinguished place among world great civilizations. A key component of such a renaissance will be that of Islamic legal reform, particularly in the area of women's rights.
In the recent past, we have seen far too many critics who attack the Qur'an in a highly emotional and shallow way, holding it suspect as the source of all the unjust, unequal and unfair laws and practices against women and minorities exist in Muslim countries ruled by Islamic law today. However, a careful examination of the content of the Qur'an and the realities of Islamic history reveals that Muslims owe their earlier remarkable progress in the area of law and human rights to the Qur'an and deeply enshrined universal human principles therein. Yet, shortcomings and misogyny in Islamic law goes back to Muslim scholars and their traditionalist frozen-in-history legal interpretations. This is a crucial distinction to keep in mind, as it undoubtedly indicates that, based on the timeless humanist principles of the Qur'an, it is perfectly possible to construct in each human era a new and egalitarian code in consistency with the realities of the time. The Qur'an is the last divine message sent to humanity, as it asserts itself, intended primarily for spiritual guidance. It is not, as some would argue, a detailed law book which aims at answering all possible legal problems of human life. The Qur'an entails a general moral framework, universal humanist principles and a few legal rules. It is the task of Muslim scholars in each generation to articulate these principles and rules in light of the realities of their contemporary world.
One such contemporary reformist Muslim scholar is Muhammad Shahrour, who in his famous treatise al-Kitab wa al-Qur'an, holds that these Qur'anic principles should not be taken as rigid laws to be applied literally, but as certain maximum and minimum divine boundaries within which people are left to freely legislate in accordance with their particular circumstances. Any egalitarian cultural premise and value widely shared and respected by people would be perfectly Islamic, as long as it does not count to the legitimization of any of the few prohibitions carefully and clearly enumerated in the Qur'an, such as murder, theft, fraud or oppression.
According to many Qur'anic verses, all people, regardless of their gender, religion, race and social class, are entitled to have a full equality before law. Equality of men and women in all civil and criminal legal matters and also their equal human potential for any kind of leadership position in their society is unequivocally and firmly asserted in the Qur'anic text, "The believing men and the believing women, they are guardians/leaders of each other, they enjoin the doing of what is right and forbid the doing of what is wrong,..." (9:71)
Moreover, an example of the Queen of Sheba, as the political leader of her country is given in the Qur'an: her good leadership qualities, her wisdom and sharp insight, her principle of consultation in decision-making and her peaceful and diplomatic political methods were specifically emphasized in several Qur'anic verses. (27:23, 32-35) These verses can and should be employed to support legal and political reforms that fully acknowledge the full human potentialities of women and men alike.
Any interpretation of the Qur'an that is discriminatory against women or minorities is fundamentally contradictory to its core spirit, general principles and ultimate purposes, and is utterly destined to fail to correspond to the realities of today's world and deeply respected universal human values of equality and freedom. It was not wrong for jurists of the past to have certain cultural premises and a priori convictions, nor to interpret the Qur'an under the light of their contemporary premises and realities. What is problematic and indeed unacceptable is to interpret the Qur'an today, as traditionalist Muslim scholars unfortunately continue to do, based on a set of outdated normative assumptions and archaic cultural premises (e.g., that women are mentally and religiously inferior to men; non-Muslims are inferior to Muslims and thus unequal before the law; under "the Islamic state" men can have free sex with limitless number of concubines outside the boundaries of marriage and that the Muslim Caliph has a legitimate authority to distribute female war captures as sex slaves among warriors) which emanated from some historical realities that no longer exist today. These extinct historical realities include the illiteracy of the majority of women, a world sharply divided according to religious affiliations of people, slavery as a legitimate socio-economic institution, and other aspects of the pre-modern society that we have fortunately left behind. It is true that reformist Qur'anic interpretations are still in the minority, however, what is minority today, may perfectly become the majority view tomorrow as it already happened in the issue of slavery in Islamic law.
The reformist reading finds in the Qur'anic rules on slavery "a realistic gradual divine plan for the complete abolishment of slavery." This interpretation has been greatly successful, and has totally defeated the traditionalist reading on this issue to the point that it has become firmly rooted in the consciousness of almost all world Muslims today. Even most of the traditionalist scholars have come to embrace this reformist Qur'anic reading. They even take it for granted now that this is indeed what the Qur'an has envisioned about slavery. This is the case, even though this particular reformist Qur'anic reading is a complete novel theory and had absolutely no place in the minds and consciousness of the first generation of Companions of the Prophet Muhammad nor in any of the subsequent generations throughout the whole history of Islamic tradition, until the nineteenth century.
The goal of the current struggle of reformist Muslims is to achieve a similar success about their reformist Qur'anic readings in the area of women rights, minority rights, freedom of expression, freedom of religion and all other fundamental human freedoms.
There are many devote Muslim men and women across the world who diligently work at both frontiers of activism and scholarship in order to spread these egalitarian Qur'anic principles and replace the discriminatory traditionalist Qur'anic readings in Islamic law with reformist humanist readings as a better realization of the renown classic Islamic legal maxim, "Laws change according to the change of time and place conditions."
Nowhere in the Qur'an is there a blank-check given to men for inhuman, oppressive and uncivilized treatment of women, as some secular critiques such as Ayaan Hirsi Ali and Irshad Manji, falsely argue. Irresponsible, superficial and hateful attacks against the Qur'an and disproportionate presentation of Muslims' Qur'anic readings only as it is understood by some traditionalists, without providing any space whatsoever to the presentation of alternative views, will ultimately fail to change anything about the mentality and approach of the Muslim community. In the end, there can be no substitute for Muslim scholars and reformers who engage their own tradition in a rigorous, humanist, and self-critical fashion.
However, until the reformist Islamic view firmly takes hold among Muslim jurists and its egalitarian Qur'anic interpretations replace the discriminatory traditionalist interpretations, Muslim women are not willing to give up any of their vested social, economic and political rights, and the principle of equality before law. No woman would be ready to forsake any of these hard won political and legal victories acquired under modern secular legal systems.
Until we see in the Islamic world any concrete and actual example of legal implementation of reformist interpretations of the Qur'an, as a Muslim woman, I would be the first one to oppose any introduction of Islamic law, as understood and implemented in the current traditionalist way, in any country ruled with egalitarian secular laws about women rights, and also in any emerging country, such as Iraq, which is at a crossroad of decision-making about the role of Islamic law in its legal system.
While making a decision about the Iraqi Constitution, and in order to avoid any loss of Iraqi women's vested civil rights, a middle-way solution can be created by introducing into the Iraqi Constitution a phrase in this regard that "the legislator may make laws based on Islamic law, only to the extent that these laws do not contradict the principle of equality of all citizens before law and do not violate any of the fundamental rights protected in the Constitution." What we need today as Muslims living in the 21st century is not the revival and imitation of opinions of our past legal tradition. Instead of deifying past Muslim generations and establishing heresy laws against any critical review of their opinions, we need to admit that the early Muslims were human generations, who had their own faithful heroes and hypocrites, their good and bad, ugly and beautiful, glorious and flawed aspects. We need to openly reject the wrong Qur'anic interpretations of our past scholars, in the same way we proudly embrace and praise their great achievements and contributions to humanity in all fields of human development.
Only with non-apologetic, rational and principled reformist Islamic thought, it is possible to deduce egalitarian and realistic Qur'anic interpretations for the modern challenges and realities of our time. At the end, it is our responsibility to decide and change, as the universal Qur'anic axiom rigorously affirms, "Verily, God does not change the condition of a people unless they change their own condition." (13:11)
By consciously facing this important challenge laid forth by God, we can rewrite the destiny of Islamic law, once again, as one of the world's great legal systems.
Mrs. Havva G. Guney-Ruebenacker is an S.J.D candidate at Harvard Law School. Her thesis is a comparative research of theories of legal change in Islamic and western jurisprudence, reviewing the nineteenth-century codification and legal reformation movements in Islamic world, especially in the area of family law and women rights. She studied Islamic law in Saudi Arabia and Iran, and European Law at University of Cambridge. She worked as a researcher at such human rights institutions as the European Court of Human Rights and the International Commission of Jurists. She can be reached at firstname.lastname@example.org