Islamic 'purse strings': the key to the amelioration of women's legal rights in the Middle East.
|Western, David J.
INTRODUCTION II. THE EVOLUTION OF ISLAMIC LAW PROPERTY RIGHTS OF WOMEN A. Dowry B. Inheritance C. Maintenance D. Women in the Middle East and Their Investments E. A Note on Microfinancing III. How ECONOMIC ADVANCEMENT CAN CONTRIBUTE TO THE t RIGHTS NECESSARY TO ACHIEVE GENDER EQUALITY A. Right to Life 1. Islamic Law and Honor Killings 2. International Law's Response to Honor Killings 3. Economic Advancement and the End of Honor Killings B. Right to Equality 1. Islamic Law and Polygamy 2. Islamic Law and Divorce 3. International Law's Response to Polygamy and Divorce 4. Financial Measures that Help Equalize Marital Rights C. Right to Equal Protection under the Law 1. Islamic Law and the Right to Vote and Hold Office 2. International Law and the Right to Vote and Hold Office 3. Economic Steps to Obtain Right to Vote and Hold Office D. Right to be Free from All Forms of Discrimination 1. Islamic Law and the Veil 2. Islamic Law and the Driving Restriction 3. International Law's Response to the Veil and Driving 4. Economic Steps to End Discrimination E. The Right to be Free from Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment IV. CONCLUSION Now there was a time when they used to say That behind every--"great man." There had to be a--"great woman." But in these times of change you know That it's no longer true. So we're comin' out of the kitchen 'Cause there's somethin' we forgot to say to you (we say)
Sisters are doin' it for themselves. Standin' on their own two feet. And ringin' on their own bells. Sisters are doin' it for themselves. (1)
"Women in Gulf Arab states hold billions of dollars in assets, and banks are only beginning to capitalize on this rich market niche." (2) In early 2006, after a recitation from the Holy Quran, women from all around the Arab world opened the inaugural "Women's Expo" heralding in a new voice of economic empowerment in the Middle East. (3) Even more recently, in addition to loans for women, the First Gulf Bank in Abu Dhabi (one of the UAE's leading financial institutions) created a "ladies only" Visa credit card. (4)
This trend towards a greater financial power for women in the Middle East is nothing new. It does however signal a change in a more important area: women's basic human rights. As women gain a greater stronghold economically in the Arab world, so too will they gain fundamental human rights.
Certainly the world is aware of the discrimination and de facto gender apartheid of countries such as Saudi Arabia. (5) But, when Islam was first founded, it was readily apparent that the Prophet Mohammad strived to give women greater rights. (6) In fact, advances made with regard to women of the time were considered very progressive. (7)
Today, based on the progress women have made in their own right, certain fundamental human rights are beginning to be recognized. Whether the 2005 Kuwaiti recognition of a woman's right to vote (8) is based on this economic progress or on some other international pressure is hard to say, but arguably the trend towards increased women's rights tracks the growth of Arab women's spending power. This article will attempt to prove just that.
Irrespective of just how repressive the world may claim Islamic law to be, it does grant women significant legal economic rights. Harnessing these rights has led to significant advances for women, and an increased understanding of them could prove to advance these human rights even further.
THE EVOLUTION OF ISLAMIC LAW PROPERTY RIGHTS OF WOMEN
From the very beginning of Islam, women were afforded significant rights. In fact, "[t]he emancipation of women was a project dear to the Prophet's heart. The Quran gave women rights of inheritance and divorce centuries before Western women were accorded such status." (9) Women also held leadership positions within the ummah (collective group or nation), and even fought alongside men in battle. (10) As Ms. Armstrong explained, "[Early Muslim women] did not seem to have experienced Islam as an oppressive religion, though later, as happened in Christianity, men would hijack the faith and bring it into line with the prevailing patriarchy." (11)
There is strong proof within the teachings of the Prophet that women were to be given a high status among nascent Islamic society. One expert considers the following hadith (occurrence or saying of the prophet) to be proof that women were given the highest place of honor:
Mu'aviyah ibn Jahimah reported, Jahiman came to the Prophet, peace and blessings of Allah be on him, and said, O Messenger of Allah! I intended that I should enlist in the fighting force and I have come to consult thee. He said: 'Hast thou a mother?' He said, Yes. He said: 'Then stick to her, for paradise is beneath her two feet.' (12) Considering that paradise is the ultimate goal, and that no matter what one does in life, there is no greater obtainment, it is obvious that women were to be considered in only the highest regard. Another hadith confirms this:
Abu Hurairah reported that a man asked the Messenger of Allah (peace and blessings of Allah be upon him) as to who amongst his near ones has the greatest right over him. He (the Holy Prophet) replied: 'Your mother.' He asked, 'Then who is (next)?' He (the Holy Prophet) replied: 'Your mother.' He again asked, 'Then who (is next)?' He (the Holy Prophet) replied: 'Your mother.' He asked: 'Then who is (next)?' He (the Holy Prophet) replied: 'Your father.' (Agreed upon) (13) Ironically, during a time when men were proclaiming absolute patriarchal order, the Prophet indicated that a woman, in this case a mother, was to be held above all. The father was to follow in degrees of glory only after the mother. This notion was radical in early Islam. Women were at times treated as chattel. For a man of God to come along and to proclaim the honor and dignity of women to such a degree that they were above men, was a truly novel concept.
To go along with this concept, Islam introduced (or emboldened) several new rights that women had previously not enjoyed in the early common era. Two of the most significant of these were dowry and inheritance.
"Wed them with the leave of their owners, and give them their dowers, according to what is reasonable ..." (14) This Quranic verse can be seen as both a positive and negative with regard to women's rights. Certainly observing the fact that a woman has "an owner," indicates some form of subservient status. However, the power of the second portion of that sentence cannot be underestimated. As one learned author explains, "[t]hrough the dower, women gain access to property, yet at the same time it is part of a legal system which defines women as protected dependents." (15)
The Dower or mahr, is a right given to all women in marriage. Under Islamic law, marriage is governed by contract law principles. Therefore, like commercial contracts, there are reciprocal rights and obligations arising from a binding offer and acceptance. (16) Dower is an important part of this contract. In exchange for the women entering into a lawful relationship with her husband, and thereby offering him obedience, a wife is entitled to receive from her husband some form of dower. This can take the form of money or goods (which usually means jewelry). (17) This money is for the woman to keep. It is not intended for the use by her husband or family. In addition, a dower is owed whether or not the marriage contract specifies it. If the contract is silent, the husband still owes a reasonable or "proper dower." (18)
According to both Sunnis and Shias alike, an agreed upon dower may consist of anything that can be valued monetarily, is useful, and ritually clean. Further, both classical jurists and modern law makers agree that there is no ceiling for the dower. (19) As explained by Professor Azizah al-Hibri:
This fact is illustrated by an early event in Islamic history. During the khilafah [caliphate] of 'Umar, young men complained about the large amounts of mahr women were demanding. Mahr is an obligatory marital gift, sometimes monetary, that a Muslim man must give his prospective wife. The amount or type of mahr is usually determined by mutual agreement. Afraid that such a trend may discourage men from getting married, Khalifah 'Umar announced in the mosque that he was going to place an upper limit on the amount of mahr. An unknown old woman rose from the back of the mosque and said to 'Umar: "You will not take away from us what God has given us." 'Umar asked her to explain her statement. Citing a clear Qur'anic verse, the woman established that the amount of mahr can be quite high. 'Umar immediately responded: "A woman is right and a man is wrong." He then abandoned his proposal. (20) Unfortunately, while there is agreement regarding no cap to dower, there is no such agreement with regard to its minimum. Several of the classic schools of Islamic thought (Shafi, Hanbali, and Shia) believe that there is no minimum to dower. Following the logic contained in the Quran, "... so that you seek them with your property in honest wedlock, not debauching," these schools argue that anything of value is acceptable as dower. (21) This view is shared in Syria, Morocco, and Kuwait. It is also expressly detailed in laws of Jordan which states that the wife should be entitled to dower specified in the contract, "however small or large." (22) Some countries such as Egypt set a minimum of 10 dirhams, while others like Tunisia simply state that "the dower shall not be insignificant (tafih)." (23)
Irrespective of the amount of dower, the fact that a woman has a fight to receive it as a part of the marriage contract ensures Muslim women of significant bargaining power both before and during marriage. Conversely, in other cultures, women are not afforded this right. Take as examples the Sikh and Hindu cultures; there it is the woman's family who give the dower to the man and/or his...
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