Out of this dead-end
Written by: Ziba Mir-Hosseini
In July 1979, six months into the Iranian Revolution that brought Islamists into power, Ahmad Shamloo wrote a poem, ‘In this dead-end’, that proved to be prophetic and captured what was to come.
They smell your breath.
You better not have said, ‘I love you.’
They smell your heart.
These are strange times, darling...
And they flog
at the roadblock.
We had better hide love in the closet...
In this crooked dead end and twisting chill,
they feed the fire
with the kindling of song and poetry.
Do not risk a thought.
These are strange times, darling...
He who knocks on the door at midnight
has come to kill the light.
We had better hide light in the closet...
Those there are butchers
stationed at the crossroads
with bloody clubs and cleavers.
These are strange times, darling...
And they excise smiles from lips
and songs from mouths.
We had better hide joy in the closet...
on a fire of lilies and jasmine,
these are strange times, darling...
Satan drunk with victory
sits at our funeral feast.
We had better hide God in the closet.
Shamloo’s poem spoke to me, as it did to many Iranians of my background and generation. With the merger of religion and politics in the aftermath of the revolution, love, beauty, joy and pleasure were all banished from public space, and anyone expressing them risked punishment. The new authorities justified this policy in the name of Islam: it was God’s law, the Shari‘a. This was my first encounter with Shari‘a, the core of the faith into which I was born, but a vision of it that I had not experienced before and now found unjust and frightening.
At the time of the revolution, which I strongly supported, I was in my late twenties, finishing my doctorate at Cambridge University. In 1980 I returned home, newly married and with my doctorate in hand. I was looking forward to becoming a university teacher and living happily with my husband. But neither was to be fulfilled; I found myself in Shamloo’s ‘dead-end’. Under the new regime’s ‘Islamization’ policy the universities were closed, and when they reopened three years later, there was no place for people like me. Not only was I not qualified to teach ‘Islamic anthropology’, I was not a ‘good Muslim’: the file on me contained a report that I had never ‘fully observed the rule of hijab’. My marriage also broke down, and I was shocked to discover that the Shari‘a contract I had signed left me at my husband’s mercy. We had entered the marriage as equals, and it had never occurred to me that he, a highly educated and liberal man, could behave as he did: he would neither agree to a divorce nor give me permission to leave the country. My only option was to negotiate my release in a court presided over by a religious judge. I started to educate myself in Shari‘a family law, and learned it well enough to secure a divorce. In 1984 I returned to the UK, and to academic life in Cambridge, where I began a research project on theory and practice in Shari‘a family law.
In hindsight, my studies have all been a search for understanding why Shamloo’s ‘dead-end’ came about, and how to get out of it.Between 1985 and 1989, I did fieldwork in family courts in Iran and Morocco; I wanted to know, as an anthropologist, what it means to be married and divorced under a law whose advocates claim it to be sacred. Investigating the details of marital disputes that came to court, I focused on the litigants’ strategies, and how judges came to make their decisions. I went beyond the letter of the law, to examine the complexity of human relations, how individuals understand and relate to the sacred in the law. What I learned, during those years of sitting in courts and listening to litigants, observing and conversing with judges, was that there was nothing sacred about Shari‘a family laws. By the time that a marital dispute reached court, whatever was sacred and ethical in the law had evaporated; neither the judges nor the disputing couple were concerned with the sacred. What was left of the Shari‘a was a strong patriarchal ethos that privileged men and placed women under male authority: it was an ideology that preserved unequal and unjust power relations in marriage and society, and denied women voice and choice. My research in the courts was the subject of my first book, Marriage on Trial.
More Than an Observer
In the 1990s, I began studying Islamic jurisprudence, seeking to comprehend how classical jurisprudential texts constructed their ideas of male and female nature and men’s and women’s roles in society, and how these gender notions are reproduced, modified and reconstructed by the contemporary custodians of the Shari‘a – the religious scholar or ulema. In Iran, I worked with a cleric who facilitated my entry into the world of the seminaries in Qom – the centre of religious learning – and helped me to establish a dialogue with the clerics in charge of a woman’s magazine financed by the seminaries. In the process of this research I came to realize the importance of engaging with the Islamic legal tradition, and the need to develop a language and framework to argue for justice and equality from within the tradition. The more I learned about Islamic legal texts, and the way they used the Qur’an, the more adept I became at conducting critical discussions with the clerics and challenging their assumptions about gender and law. I spent much time with women visiting the shrines in Qum, and was enraged at how badly the shrine custodians treated them; I could see how the strict codes of gender segregation and hijab worked to marginalize women and their experiences, and then to exclude women from the production of religious knowledge.
It was also during my time in Qom, and my engagement with jurisprudential texts, that I came to realize that I no longer wanted to be just an observer. Then in 1996, while writing my second book, Islam and Gender, based on my research in Qom, I started working with Kim Longinotto, an experienced independent British filmmaker. I met Kim through a mutual friend and we discovered that we shared the same frustrations with British media stereotypes of the Muslim world. We decided to make a documentary film in Iran, inspired by the court cases in Marriage on Trial. The first step was to apply to British TV commissioning editors for funding, and to Iranian officials for access and permission to film. Kim focused on the first and I on the second. This, my first experience in filmmaking, involved me in a long series of negotiations, not only with the Iranian authorities for permission and access, but also with myself: I had to deal with personal ethical and professional dilemmas as well as with theoretical and methodological issues of representation. The film’s subject matter – divorce – inevitably entailed both exposing individuals’ private lives in the public domain, and tackling a major issue that divides Islamists and feminists: women’s position in Muslim family law.
In the course of these negotiations I confronted my own multiple identities. I found myself in an uncannily familiar situation of shifting perspectives and self-redefinition. When I started the film project, I was fresh from fieldwork in Qom. In my discussions with the clerics, I had had to justify my feminist stance, while in making the film I wanted to honour the Muslim and Iranian aspects of my identity. I came to realize that the problem was also inside me. I could not integrate the multiple discourses and representations of women in Iran, nor could I synthesize my own identities and positions. I disagreed equally with Iranian and Western stereotypes of ‘women in Islam’, images that did not reflect a complex reality. As a feminist, an Iranian and a Muslim, I objected to how women were treated in Iranian law, and wanted to change it. But my objections were not the same as those implied in Western media discourses or those aired by feminists after the Revolution: I did not see women in Iran as victims, but as pioneers in a legal system caught between religious tradition and modern reality.
All these experiences gave a new edge to my research, which has since become more focused on laws regulating sexuality: family laws, rulings on hijab and zina (sex outside marriage). I examine these laws from a critical feminist perspective, engaging with their jurisprudential and social rationale. In this sense, my approach is rather different from that of other Muslim feminists, who go back to the sacred texts in order to ‘unread patriarchy’. I am not concerned, nor indeed qualified, to offer yet another new reading of the sacred texts. This terrain is highly contested; both those who argue for gender equality, and those who reject it, can and do provide textual support for their arguments, though commonly, in both cases, taking the texts out of context. Rather, I seek to engage with juristic constructs and theories, and to unveil the theological and logical arguments and legal theories that underpin them. I attempt a kind of ‘ethnography’ of the juristic constructs on which the whole edifice of gender inequality in Muslim legal tradition has been built. Clearly, my aim is to demystify this edifice, to show that there is nothing ‘sacred’ about it, and that consequently it is open to change.
In 2002, when I began collaborating with Zainah Anwar, founder of the Malaysia-based non-governmental organisation Sisters in Islam (SIS), I crossed the line between scholarship and activism. SIS, formed in 1988, remains one of the few Muslim women’s groups that approach Islam from a rights perspective, with no qualms in identifying as both Islamic and feminist. Trips to conferences and meetings in Malaysia and Indonesia opened a new world to me, where I felt at ease. There was none of the tension between religious and secular feminists that I was used to in the forums in Europe and North America where I had been presenting my work. I did not have to deal with the scepticism and resistance of colleagues in the feminist and Islamic studies circles where I had operated previously. I now spoke and wrote, not just as an academic merely concerned to analyse and explain, but also as an activist in search of solutions. This I found liberating. It was, moreover, a welcome change from my experiences with secular-minded women’s groups and organisations in other Muslim countries, who tended to shy away from addressing women’s issues from within a religious framework; for them, religion itself was the main problem, holding back any struggle for equality, and they saw my approach and my work as futile and counter-productive. At the same time, most Muslim scholars I encountered were suspicious of my approach and my engagement with international human rights and feminism, both of which they saw as alien and western-inspired.
Working with SIS, I saw how this tension between advocates of ‘Islam’ and ‘feminism’ played out, and I became increasingly convinced that, as long as patriarchal interpretations of the Shari‘a are not challenged from within, there can be no meaningful and sustainable change in family laws in Muslim contexts. I saw the main problem to be the antagonism between ‘secularist’ and ‘Islamic’ approaches to the issue of women’s rights; partly a legacy of colonial polices, it blocked any fruitful debate and prevented women’s groups from forging a viable strategy for Muslim family law reform. But I thought it was possible to overcoming this antagonism, by building coalition and consensus among different groups of women’s rights activists. The person who could do this, I felt, was Zainah Anwar; I was hugely impressed with her style of leadership, her commitment to her faith and to justice, and her sharp political analysis. Above all, as the founder of SIS, she was highly respected among women’s groups. She shared my views and took the initiative to organize a workshop in Istanbul in February 2007 that brought together a diverse group of activists and scholars from a range of countries. Our aim then was to persuade secular feminists of the need to take religion seriously, since the vast majority of Muslims whose rights they were defending were believers and wanted to live according to the teachings of Islam, and effective change could only come through a meaningful and constructive dialogue with those teachings. We also wanted to convince Muslim scholars that feminist scholarship was not an alien force but an ally in the search for justice, and that there was common ground between Islamic and human rights principles.
The Istanbul meeting led to the formation of a planning committee, charged with the task of setting out the vision, principles and conceptual framework of a new movement to be called Musawah, with the aim of forging a new strategy for reform. We proposed to link scholarship with activism to develop a holisticframeworkintegrating Islamic teachings, universal human rights law, national constitutional guarantees of equality, and the lived realities of women and men. We commissioned a number of concept papers by reformist thinkers such as Amina Wadud, Khaled Abou El Fadl and Muhammad Khalid Masud. We used them as a way of opening new horizons for thinking, to show how the wealth of resources within Islamic legal tradition, and in the Qur’anic verses on justice, compassion and equality, can support the promotion of human rights and a process of reform toward more egalitarian family relations. These papers came together as the book Wanted: Equality and Justice in the Muslim Family, and became the basis of a wider discussion over two years with a larger group of Muslim scholars and human rights and women’s rights activists.This discussion, in the course of two other workshops in Cairo and London, followed by constant electronic communication among the members of the committee, shaped the Musawah Framework for Action.
In the Framework for Action, we grounded our claim to equality and arguments for reform simultaneously in Islamic and human rights frameworks. Taking a critical feminist perspective, but most importantly working within the tradition of Islamic legal thought, we invoked two of its main distinctions. The first distinction, between Shari‘a and fiqh, underlies the emergence of various schools of Islamic law and within them a multiplicity of positions and opinions. Shari‘a, literally ‘the way’, in Muslim belief is the totality of God’s will as revealed to the Prophet Muhammad. Fiqh, jurisprudence, literally ‘understanding’, is the process of human endeavour to discern the Shari‘a and to extract legal rules from the sacred sources of Islam: that is, the Qur’an and the Sunna (the practice of the Prophet, as contained in hadith, Traditions). In other words, while the Shari‘a is to be found in sacred sources, its understanding, fiqh, is human and, like any other system of jurisprudence, mundane, temporal and local.
The second distinction, which we also take from Islamic legal tradition, is that between the two main categories of legal rulings (ahkam): between ‘ibadat (ritual/spiritual acts) and mu‘amalat (social/contractual acts). Rulings in the first category, ‘ibadat, regulate relations between God and the believer, where jurists contend there is limited scope for rationalization, explanation and change, since they pertain to the spiritual realm and divine mysteries. This is not the case with mu‘amalat, which regulate relations among humans and remain open to rational considerations and social forces, and to which most rulings concerning women and gender relations belong.
These distinctions gave us the language and conceptual tools to challenge patriarchy from within Muslim legal tradition.The genesis of the gender inequality inherent in Islamic legal tradition, we argued, lies in a contradiction between the ideals of the Shari‘a and the patriarchal structures in which these ideals unfolded and were translated into legal norms. Islam’s call for freedom, justice and equality was submerged in the norms and practices of Arab society and culture in the seventh century and the formative years of Islamic law. Patriarchal norms were assimilated into fiqh rulings through a set of theological, legal and social theories and assumptions that reflected the state of knowledge of the time, and were part of the fabric of society. This was done by the sanctification of existing marriage practices and gender ideologies and the exclusion of women from the production of religious knowledge.
The further we move from the era of the Prophet, we argued, the more we find that women are marginalised and lose their political clout; their voice in the production of religious knowledge is silenced; their presence in public space is curtailed; their critical faculties are so far denigrated as to make their concerns irrelevant to law-making processes. Women had been among the main transmitters of the hadith traditions, but by the time the fiqh schools were consolidated, over a century after the Prophet’s death, they had reduced women to sexual beings and placed them under men’s authority.
One central problem that confronts us is how to negotiate the wide gap that has opened between contemporary ideas of justice and those that informed the jurists’ rulings and dominant interpretations of the Shari‘a. This makes Muslim legal tradition and its textual sources appear hypocritical or at best self-contradictory, and it is most felt in the area of family law, where fiqh is still the main source. For instance, take the following two statements:
The fundamentals of the Shari’ah are rooted in wisdom and promotion of the welfare of human beings in this life and the Hereafter. Shari’ah embraces Justice, Kindness, the Common Good and Wisdom. Any rule that departs from justice to injustice, from kindness to harshness, from the common good to harm, or from rationality to absurdity cannot be part of Shari’ah.
The wife is her husband’s prisoner, a prisoner being akin to a slave. The Prophet directed men to support their wives by feeding them with their own food and clothing them with their own clothes; he said the same about maintaining a slave.
Both statements are by Ibn Qayyim Jawziyya, a fourteenth century jurist, regarded as a great reformer of his time, who became the source of inspiration for many twentieth century Islamists. The first statement speaks to all contemporary Muslims, and both advocates of gender equality and their opponents often use it as an epigraph. It was on the Musawah website – as well as those of many conservative and reactionary Muslim organizations. But when it comes to marriage, Ibn Qayyim, in the same book, compares a wife to a prisoner or a slave: she must obey her husband, who has absolute power over her. So where is justice for women? In fact the Musawah planning committee had a long debate over whether to use the first quote; one member sent an e-mail saying ‘hey guys, be careful, as Ibn Qayyim also has misogynist views!’
We kept Ibn Qayyim’s first statement on the website, as we agree with him what Shari‘a is about, but his second statement, which merely expresses the classical fiqh construction of marriage, we refuted by offering an alternative construction of marriage that is in line with contemporary notions of justice and the lived realities of Muslims.
In 2010, as part of the knowledge-building component of Musawah, we began a long-term, multi-faceted project to challenge and rethink key legal concepts in Muslim family laws that continue to legitimate and institutionalize a patriarchal model of the family. One of these concepts is qiwama, which the classical jurists derived from Qur’an verse 4:34. This verse continues to be the main textual evidence in support of men’s authority over women. It is often the only verse that ordinary Muslims know in relation to family law:
Men are qawwamun(protectors/maintainers) in relation to women,
according to what God has favored some over
others and according to what they spend from
their wealth. Righteous women are qanitat(obedient)
guarding the unseen according to what God
has guarded. Those [women] whose nushuz(rebellion)
you fear, admonish them, and abandon them in
bed, and adribuhunna(strike them) If they obey you, do not
pursue a strategy against them. Indeed, God is
The italicised words are now the centre of debate among Muslims; any translation of each term amounts to an interpretation. The translations I have given approximate the consensus of classical Muslim jurists as reflected in a set of rulings that they devised to define marriage and marital relations. These rulings, as we shall see, are premised on one single postulate: God made men qawwamun of women, which places them under male authority. This is what I call the qiwamapostulate—using postulate in the sense of ‘a value system that simply exists in its own right’.
We see the working of this postulate in all areas of Muslim law relating to gender rights, but its impact is most evident in the laws that classical jurists devised for the regulation of marriage and divorce. For them, men’s superiority and authority over women was a given, legally inviolable; it was in accordance with a conception of justice in which slavery and patriarchy were accepted, as long as slaves and women were treated fairly. They naturally understood the verse in this light. They used the four key terms to define relations between spouses, and notions of justice and equity; marriage was a contract of exchange, and patterned after the contract of sale (bay‘), which served as model for most contracts in fiqh. The contract, called ‘aqd al-nikah (the contract of coitus), has three essential elements: ijab, the offer made by the woman or her guardian; qabul, acceptance by the husband; and mahr, a gift from the husband to the person of the bride.
The contract established a set of default rights and obligations for each party, some supported by legal force, others by moral sanction. Those with legal force revolved around the themes of sexual access and compensation, as expressed in two central legal concepts: tamkin and nafaqa. Tamkin, obedience or submission, specifically sexual access, became the husband’s right and thus the wife’s duty; whereas nafaqa, maintenance, specifically shelter, food and clothing, became the wife’s right and the husband’s duty. But if a wife was in a state of nushuz (disobedience), then she lost her claim to maintenance. While the husband was given the unilateral and extra-judicial right to terminate the contract by talaq or repudiation, a wife could only terminate the contract with her husband’s consent or the intervention of the court – if she produced a valid reason.
Classical jurists made no attempt to restrict a man’s right to talaq, although there are numerous moral injunctions that could have enabled them to do so. For instance, there are sayings of the Prophet to the effect that talaq is among the most detested of permitted acts, and that, when a man pronounces it, God’s throne shakes. Yet in its legal structure talaq, unlike marriage, was defined as a unilateral act that needed neither grounds nor the consent of the wife.
There were, of course, differences between and within the classical schools over the meanings of the three interrelated concepts – nafaqa, tamkin and nushuz – but they all shared the same conception of marriage, and the large majority made a woman’s right to maintenance dependent on her obedience to her husband. The reason for their disagreement, as Ibn Rushd, the great twelfth century Andalusian philosopher tells us, was ‘whether maintenance is a counter-value for (sexual) utilization, or compensation for the fact that she is confined because of her husband, as the case of one absent or sick.’ And it was within the parameters of this logic – men provide and women obey – that notions of gender rights and justice acquired their meanings.
Whether these rulings corresponded to actual practices of marriage and gender relations is another area of inquiry, one that recent scholarship in Islam has started to uncover. These studies give us a much more complex picture of marital relations and court practices. But the fact remains that qiwama, itself a juristic construct, became the rationale for other legal disparities, such as men’s rights to polygamy and to unilateral repudiation, women’s lesser share in inheritance, and the ban on women being judges or political leaders. That is to say, women were not qualified to occupy positions that entailed the exercise of authority in society, because they were under their husband’s authority and thus not free agents, and they would be unable to deliver impartial justice. Similarly, since men provide for their wives, justice requires that they be entitled to a greater share in inheritance. These inequalities in rights were also rationalized and justified by other arguments, based on assumptions about innate, natural differences between the sexes, such as: women are by nature weaker and more emotional, qualities inappropriate in a leader; they are created for child bearing, a function that confines them to the home, which means that men must protect and provide for them.
The term qiwama does not occur in the Qur’an. In a brilliant study for Musawah, Omaima Abou Bakr, Professor of English and Comparative Literature at Cairo University, shows how it became a core element of gender relations by documenting the significant changes in exegetical (tafsir) understandings of Verse 4:34 in the past ten centuries. She shows how and through what processes the first sentence, ‘men are qawwamunin relation to women according to what God has favoured some over others and according to what they spend from their wealth’, was continually reinterpreted until it became a patriarchal construct. She identifies four stages in this reinterpretation. In the first, the sentence was isolated from the rest of the Qur’an and turned into ‘an independent and separate (trans-contextual) patriarchal construct’. This, she shows, was done by taking the term qawwamun out of its immediate context and transforming it into a grammatical masdar (a verbal noun or infinitive) of qiwama. In the second stage, when the concept was consolidated, rational arguments and justifications were provided for hierarchal relations between men and women. In the third stage, qiwama was expanded by linking it to the idea that men have an advantage over women, from the last phrase in Qur’anic verse 2:228: ‘But men have a daraja (degree) over them (women).’ This phrase, part of a long passage on the theme of divorce, was again taken out of its immediate context and interpreted as further support for male superiority; and a selection of hadith were also invoked to establish women’s duty of obedience. The final stage came in the late nineteenth century with the modernist thinkers, when qiwama was linked with the theory of the naturalness of ‘Islamic law’ and the ideology of domesticity, using pseudo-psychological knowledge to argue for men’s and women’s different natures (fitra).
The term qawwamun, on which the whole fiqh edifice of male authority is constructed, only appears once in the Qur’an in reference to marital relations, in verse 4.34. As regards marriage and relations between spouses, two other terms appear over twenty times: ma‘ruf (good way, decent) and rahmah wa muwadah (compassion and love). The closely related term wilaya does occur in the Qur’an, in the sense of friendship and mutual support, but never as endorsing male authority over women, which is the interpretation of the term that is enshrined, alongside qiwama, in juristic rulings on marriage.
Our project in Musawah is still unfolding. We are asking new questions, such as why and how did verse 4:34, and not other verses in the Qur’an, become the foundation for the legal construction of marriage? Why did the jurists choose not to translate the two other terms, ma‘ruf (good practice) and rahmah wa muwadah (love and compassion) into legal rulings? Why is qiwama still the basis of gender relations in the imagination of modern-day jurists and Muslims who resist and denounce equality in marriage as alien to Islam? How, and through what juristic processes, was men’s authority over women legitimated and translated into laws? What does male guardianship, as translated in the concepts qiwamah and wilayah, entail in practice? How can Muslim women rethink and reconstruct the concepts in ways that reflect our own notions of justice? Can Shari‘a-based laws accommodate gender equality? How can we argue for an egalitarian construction of Muslim family laws from within Muslim legal tradition?
Our aim is to insert women’s concerns and voices into the processes of production of religious knowledge and legal reform. In this sense what we are doing is part of the larger struggle for the democratization of knowledge in Islam and for the authority to interpret its sacred texts. What is becoming more and more transparent is that the struggle for gender equality is as much political as it is theological, and it is hard and at times futile to decide when theology ends and politics begin. Agrowing popular understanding of the nature of this struggle has been one of many unintended consequences of the rise of political Islam. It was the Muslim intellectuals’ failure to recognize these linkages in Iran in the 1970s that brought us to ‘the dead-end’ that Shamloo’s prophetic poem describes. The way out will come when the age-old – but, we would say, ‘un-Islamic’ – links between patriarchy and despotism in Muslim religious tradition, life and psyche are broken.
The quotation from Ibn Qayyim al-Jawziyya is from I'laam ul Muwaqqi'een 'an Rabb il 'Aalameen, (Beirut: Dar al-Fekr el-Arabi, 1955), vol. 3, p. 1; and Ibn Rushd is from his The Distinguished Jurist’s Primer, vol. II, translated by Imran Ahsan Khan Nyazee (Reading: Garnet Publishing, 1996), p. 63; as quoted in Yossef Rapoport, Marriage, Money and Divorce in Medieval Islamic Society (Cambridge: Cambridge University Press, 2005), p. 52. Ahmad Shamloo, ‘In This Deadend’ can be found at: http://shamlu.com/trama.htm. ‘Divorce Iranian Style’, a 78-minute documentary first broadcast by Channel 4 in August 1999 in its ‘True Stories’ series, is available at http://www.secondrundvd.com/release_disr.php
Both Wanted and the Framework for Action were published by Sisters in Islam, Kuala Lumpur, in February 2009 at a conference in Kuala Lumpur for the launch of Musawah, attended by over 250 participants from 47 countries. They can be downloaded from; www.musawah.org
Other works mentioned in this essay include Ziba Mir-Hosseini, Marriage on Trial: A Comparative Study of Islamic Family Law in Iran and Morocco (London, I. B. Tauris, 1993: second edition with new Preface, 2000); Islam and Gender: The Religious Debate in Contemporary Iran (Princeton University Press, 1999; London, I. B. Tauris 2000). See also ‘Muslim Family Laws, Justice and Equality: New Ideas, New Prospects’, in Ziba Mir-Hosseini, Lena Larsen, Christian Moe and Kari Vogt (eds) Gender Equality in Muslim Family Law: Justice and Ethics in Islamic Legal Tradition (London: I B Tauris, 2013), pp 7-34.