Women and Islam Part 1: new strategies to strengthen protection

The women of West Asia-North Africa face complex and multifaceted challenges upholding their rights and protecting themselves from violence. In many jurisdictions, legislation does not afford equal opportunity and protection to women; certain laws are discriminatory and others, while not explicitly gendered, have a disproportionate and negative impact on women. Women are vulnerable to specific rights violations and face widespread social discrimination. A key issue is that most women exist outside the protection of the law. They lack awareness of their rights and how to mobilise them, they do not have the resources to access the courts, and cultural norms dissuade them from taking their problems outside of the private sphere.

For decades, legal services and policy organisations have struggled to find effective means of strengthening gender equality and women’s protection. There is widespread agreement that an effective legal protection framework is a prerequisite. In this regard, Jordan has made significant progress, as enshrined in the 2010 Law of Personal Status and its amendments.

Deficiencies remain, however, including mitigating and exculpatory provisions in the Penal Code and weak protections against domestic violence. While women’s groups have lobbied strongly for reform, closing these gaps remains an on-going challenge. One explanation lies in the strategy they have adopted. The advocacy discourse that preceded the 2010 amendments largely focused on Jordan’s obligations under international law and the importance of presenting itself as a modern state grounded on rule of law values, equality and human rights. The reality however, as distasteful as it might be, is that is that a large group of powerful stakeholders do not subscribe to the philosophy underpinning these arguments. As in much of the region, gender discrimination, cultural norms that support subservience and patriarchy, and the importance attached to family honour are entrenched parts of the social fabric. The law has remained a weak source of protection because there is simply not the will among dominant power holders to modify the status quo. Unless the incentive structure is modified, this situation is unlikely to change.

A new strategy is required, one that will mobilise both political and broader community support. We should draw inspiration from countries with similar socio-cultural and legal frameworks that have made major strides in women’s legal protection. We must also investigate how we can make better use of our assets. My research suggests that a strategic opportunity exists to lobby for reform on the grounds that the law, or the implementation of the law, directly conflicts with Islamic principles.

A first argument is that changes in social and economic conditions mean that the outcome of applying certain laws is inconsistent with the true Islamic message; in other words, reform is needed so that the application of the law can achieve its intended purpose under Islam. For example, the vesting of legal guardianship in fathers and caregiving responsibilities in mothers, as defined in classical fiqh, was aimed at protecting children and mothers in a context where women did not work, would have been unable to maintain their children alone, and did not participate in marital decision-making. Today’s socio-historical framework is very different. Government and civil society support the poor, workplaces comprise both men and women, and women are largely physically independent. There is hence a legitimate argument that men’s exclusive legal guardianship is no longer appropriate and may also abrogate the Islamic principle of the child’s best interest.

A second potential area for reform is inheritance. Equality in inheritance is at the top of the agenda at many women’s rights organisations. For those who are serious are near-term and comprehensive change, I don’t think this is the most strategic lobbying objective. Inheritance division is clearly defined in Islam, and the discourse is complex and divided about whether or not provisions are discriminatory. Instead we should focus on the argument that modern socio-economic conditions mean that the intention of Islamic inheritance division is not being realised through the Personal Status Code. Inheritance divisions were originally grounded on the assumption that women’s maintenance was the responsibility of male relatives. Men, however, are not the sole providers in Jordanian families today. Moreover, it is a well-established norm that married working women use their salaries to pay for family expenses, while single women likewise contribute their salaries to the family income. Jordan’s high divorce rate also means that there is a large and growing number of women raising children alone. The practice of inheritance division has thus fallen out of alignment with its objective under Islam; a situation that can only be rectified through changes to the law.

A third basis for reform is that in modern-day Jordan, the application of certain rules abrogates other, equally valid, Islamic principles, the broader aims of Shari’a, or the public good (according to Shari’a, a ruler must act according to the public welfare, following the principle of maslaha). The law’s failure to protect women from marital rape undermines Islam’s protection vulnerable groups, its general proscription regarding violence, and its requirement that women be treated with dignity and respect. A similar argument could be levelled in support of a strengthening of laws relating to domestic violence and an elimination of mitigating and exculpatory provisions in the Penal Code. Specifically, it could be argued that marriage between a rapist and victim (as facilitated under article 308 of the Penal Code) is contrary to the principles of Islamic marriage, and that neither vulnerable groups nor society more generally benefits from such marriages. The paternity law could likewise be contested based on the Islamic principle of the best interest of the child and protection of vulnerable groups. Children born out of wedlock are discriminated against, are more vulnerable to poverty, and have reduced access to education and livelihoods opportunities. Moreover the disincentives placed on women to abandon children born out of wedlock or whose paternity is not recognised is clearly not in the interests of mothers, children or greater society.

There is precedent for such reform and it is called ijtihad. Ijtihad is independent and informed opinion on legal or theological issues. In layman’s terms, it can be seen as law reform through judicial interpretation. Admittedly, modern scholarship is divided on whether the ‘gate of ijtihad’ was closed around the tenth century A.D, or was never closed. Ijtihad has strong regional precedents. This was the means by which Morocco comprehensively reformed its family law, the Mudawwana in 2004, under the King’s religious authority. The new code embodies important departures from traditional Maliki fiqh including equal responsibilities between men and women in family affairs; the abolition of female guardianship; equal access to women to the court to file for divorce; and the vesting of women with unconditional rights with respect to alimony and custody. This was not a simple matter of taking the decision. A complex series of conditions and events, including a steady evolution in women’s activism, the 2003 Casablanca terrorist attacks, and King Mohammed VI’s ascent to the throne, created the necessary enabling environment. Could a similar process of ijtihad take place in Jordan? The Royal Hashemite family certainly has the requisite religious authority. But are the requisite social and political conditions in place? One might argue that the threat posed by Islamic extremism makes this an ideal time to solidify a country’s Islamic identity based on its core values of justice, protection, i’tidal and wasatiyya (temperance and moderate lifestyle, far from the extremes). These are questions that can most properly be answered by the country’s political and religious leadership. But if the purpose of ijtihad is to discover God’s law in all historical circumstances, today’s rapidly changing economic, social and scientific conditions make it imperative that jurists consider engaging in the practice.