1 Islamic Law Regarding Women Versus Tribal Traditions and Modern Proctices
The Pre-Islamic Position of Women
While much is made of such famous female monarchs as the queen of Sheba and Zenobia of Palmyra, and although a number of poetesses contributed to the great Arabic literary period of the sixth century, those women who are recorded as having held high status seem to be the exception rather than the rule. Although there is some disagreement as to the status of women in pre-Islamic Arabia, it is generally accepted that they held a subordinate position since up to the time of the Prophet Muhammad institutions did not exist which could protect the rights of women. And since so much material in the Qur'an is related to women, it would appear that Qur'anic legislation concerning them aimed at improving the low position which women held at that time.1
One reflection of the additudes toward women in the pre-Islamic period is the practice of female infanticide, of which neither the extent nor the reasons are definitely known. While the explanations given by historians are quite varied and range from positive to negative,2 according to the Qur'an the reasons were poverty and an over-abundance of females since so many men were killed in war.3
Among some of the tribes of ancient Arabia, there is evidence of matriarchally organized society and a form of polyandry was practiced in what Robertson Smith described as the sadica marriage.4 The sadica marriage resembled the mut'a marriage, which also existed at this time, because the mahr was paid directly to the bride and not to her guardians. Under the sadica arrangement, the woman stayed with her tribe and had the right to dismiss her husband whenever she wished; she was sovereign in the marital relationship.5
One hypothesis stated to explain the pre-Islamic Arabian social system is that the society was in transition from a matrilineal to a patrilineal system.6 Medina is often cited as having a matrilineal social system at this time, but this did not necessarily hold for other parts of Arabia. Most of the evidence designates the patrilineal or ba'al marriage as being most prevalent, in which case the woman went to live with her husband. She was completely subject to his authority and he alone had the right of divorce.7 Marriages did not last long and the men married repeatedly.8 Whether or not polygamy as we now know it existed, there obviously was no stability in a marriage relationship and divorce was common.9
The spouse was usually chosen from among a girl's relatives. The decision was left to the girl's parents or guardians and ibn'amm marriages were preferred, although the girl did have the right to refuse the chosen mate. For the female, marriage usually took place at puberty, while marriage for the male could occur at any time, and his age in relation to the bride was not important. The most important criteria in making a suitable match was that the groom be equal to or above the girl in station, for to marry below one's rank would bring dishonor to the bride's tribe.10 In addition, women had no rights of inheritance or property ownership as even their mahr was given to their father or guardian and never to the bride personally, thus leaving women completely dependent and subject to their menfolk.11
A final observation is that women of this period enjoyed more social freedom than their post-Islamic sisters and moved freely among their tribesmen, unveiled. It is possible that in the cities there was some veiling, but this was a custom imported from the East and the extent of its practice is not fully known.12
Position of Women Under Islamic Law
Islamic law, as laid out in the Qur'an, was, of necessity, rigid and emphatic because of the fact that Arab society was a very conservative and recalcitrant one. There would have been no need for such a legal system had religious and ethical standards been comprehensively applied to all areas of human behaviour, but in regards to the position of women, family life, retaliation, wine drinking, usury and gambling, new standards had to be drawn.13 Even when Islamic law was introduced by the Prophet, he was aware of the difficulty involved in seeing that the laws were observed. And rightly so, for in a matter of generations the laws concerning women, in particular, were ingeniously changed by Muslim casuists. Too often the Prophet is attacked as having been anti women, but in examining the Qur'an -which we shall rely on as being the major determinant of the position of women - and Hadith (Prophetic traditions) one finds this an unfair accusation. Muhammad not only was aware of women's needs, but also strove to respond to them through legislation.14
It is often stated that Islam in general relegates women to a status lower and therefore unequal to that of men. However, in Sura XLIX, verse 13,15 it is very clearly stated:
O mankind, we created you all from a male and female, and made you into races and tribes, that you may know one another. Surely the noblest among you in the sight of God is the most God fearing of you.
Here, as in Sura XXXIII, verse 35, race, color and sex are rejected as measures of stratification since only the degree of one's religiosity is important in judging one person as being superior to the next. Otherwise, men and women are considered equal in the eyes of God.
Sura IV, verse 34, is also often used to defend the argument that men and women are not equal, but in stating 'Men are in charge of women, because Allah hath made the one to excel the other, and because they spend of their property (for the support of women)', what is meant is that man is head of the household. The woman is responsible for the upbringing of the children and for all else within the confines of the home, while the man is responsible for what happens outside the house as he is the primary breadwinner.16 The notion of complementarity emerges here โ one stays home because it is easier to tend to the necessary domestic responsibilities, including nursing the children, while the other goes outside the home because it is more convenient for that sex to leave for longer stretches of time. This very much follows the pattern we find in all traditional societies.17
A sign of the equality of men and women is seen in the fact that during the Prophet's time women prayed in the mosques but, once seclusion became popular, women were no longer permitted to attend.18
The practice of veiling and seclusion were not introduced by Muhammad because he saw women as 'continually giving trouble to man', as some short-sighted Western commentators prefer to explain this phenomenon.19 Nor was it introduced because it saves the 'naturally unattractive' women from being rejected by men, as an equally myopic Easterner put it.20 This custom did not even exist in the Jahiliyah among tribal society. The Prophet did advise women to cover themselves modestly but this was greatly exaggerated later on. Nor were veiling and segregation of men and women purely Muslim practices, for Christians and Jews in the Middle East also veiled and secluded their women up to the twentieth century.21 It is believed that veiling was a common practice in ancient Persia and was brought over and adopted by the upper classes in the settled areas of Arabia as a sign of prestige.
It may have been to give his wives a position of honor and dignity, also, that they were veiled, or perhaps Muhammad was convinced of the need for his wives to be secluded later on, after they had allegedly been exposed to insults from various critics of the Prophet.22 The explanation given for Sura XXXIII, verse 59, is that his wives and followers should cover up so they would not be attacked when out in public.23 It is said that, prior to Islam, moral codes were lacking and people had a tendency toward immodesty. So, while women are told to be modest in Sura XXIV, verse 31, directly prior to this, in verse 30, men are also similarly advised. Therefore, one sex is not treated any differently from the other in this regard. And when women are told not to display their 'ornaments', this is interpreted to mean the hair, and not the face.
The example set by the Prophet's wives led to the institutionalization of veiling and seclusion and thus both became a sign of prestige. By the end of the eighth century, all women except slaves were completely shut off from the world beyond their private quarters.24 Thus seclusion became a way of differentiating between slaves and free women. At the same time, within the secluded sector two societies resulted - that of women and that of men. Here it must be stressed that nowhere in the Qur'an is seclusion and veiling of the face mentioned; it was therefore, local customs and tradition which brought these on and preserved them.
Islamic laws pertaining to polygamy are also often misunderstood. As noted earlier, marriage in pre-Islamic Arabia was not known for its longevity and men married repeatedly. As Levy states: 'Before Muhammad, the capacity of the Arab's purse would appear to have provided the only limitation to the number of his wives.'25 By limiting the number of wives to four (Sura IV:3) it was hoped the position of women would be ameliorated.26 Equality of treatment and time spent with each was demanded for all, and if this was not possible then only one wife should be taken. Because it was not believed possible to be fair to all, especially in terms of emotional attention, since Muhammad himself is known to have favored 'A'isha above his other wives, polygamy was not recommended.
Although marriage is regarded as a sort of contract between two parties, since no religious ceremony is necessary to make it valid, this does not mean Islam holds marriage lightly. Marriage is encouraged (Sura XXX:21) and rules are laid down as to who might be suitable spouses (Suras IV:20, 25, V:S, XXIV:32). Women are not, for example, forced to marry first cousins, as was the custom in pre-Islamic times, but may marry any man who is a believer (Sura II:221). Furthermore, a sense of responsibility of the husband to the wife is expressed (Sura II:240, IV:5), a factor which is not mentioned in the literature on pre-Islamic women.
An extra-marital relatio...