The myth of misogyny: a reanalysis of women's inheritance in Islamic law.

• Author: Chaudhry, Zainab

In the Name of Allah (God),

Most Gracious, Most Merciful

O mankind! reverence

Your Guardian-Lord,

Who created you

From a single Person,

Created, of like nature,

His mate, and from them twain

Scattered (like seeds)

Countless men and women --(1)

1. Introduction

   For the most part, the popular image of a Muslim woman conjures up tales of oppressed women, secluded in harems, wrapped beyond recognition in veils; women who are kept uneducated and ignorant, subject to the whims and desires of their fathers, brothers, and polygamous husbands; women with no independent legal or spiritual identity, often with no more rights than chattel. This misconception was most notably narrated by Florence Nightingale in 1854, as she reflected on her travels through a Muslim country:

   Without the past, I conceive Egypt to be utterly

   uninhabitable. Oh, if you were to see the people! No ideas that I had

   of polygamy come near the fact; and my wonder is now, not

   that [the women] were so bad, but that they were not a great

   deal worse. Polygamy strikes at the root of everything in

   woman -- she is not a wife -- she is not a mother; -- and in

   these Oriental countries, what is a woman, if she is not that?

   In all other countries she has something to fall back upon.

   The Roman Catholic woman has a religion -- the Protestant

   has an intellect; in the early Christian, in the old Egyptian

   time, women had a vocation, a profession, provided for them

   in their religion, independent of their wifedom; here, she is

   nothing but the servant of a man. No, I do assure you, the

   female elephant, the female eagle, has a higher idea of what

   she was put into the world to do, than the human female has

   here. I never knew of a religion, ancient or modern, that I

   could not have some points of sympathy with, -- but with the

   Mahometan, how few.(2)

   Such misperceptions and distortions still enjoy wide acceptance today. Society, as well as academia, has helped to perpetuate these inaccuracies, often erroneously characterizing Islam itself as the source of Muslim women's persecution.(3) However, the advent of Islam in seventh-century Arabia, through revelation by God to His Messenger Muhammad(4) (P.B.U.H.),(5) elevated the status of women, providing them with an independent legal and spiritual identity.(6) Islam's declaration of a new equal status for women in society becomes even clearer when viewed in the context of the negligible status of women in pre-Islamic Arabia.(7)

   The social and political structure at that time was defined by tribal membership, and dominated by men.(8) Women played little part in the religious or political affairs of the tribe,(9) and the "men's rights over their women were as their rights over any other property."(10) In marriage, a woman's consent was not needed, and she was often purchased by the man from her father or guardian as an object of sale.(11) Men also enjoyed the right to divorce women at will without having to provide any maintenance to them.(12) A man "had the right to unlimited polygamy,"(13) and often upon his death, his wives would be considered part of the estate to be passed on to his heirs.(14) Female infanticide was a common practice.(15) Women had no hope of inheritance,(16) and "were not allowed the holding, or in any case the uncontrolled disposal, of their possessions."(17)

   Islam brought about a radical and immediate change in such abhorrent treatment of women. Qur'anic legislation gave women an independent and equal legal and spiritual identity,(18) teaching that men and women were created from the same soul.(19) Women were granted religious and spiritual equality, responsibility for the same moral obligations incumbent on all Muslims,(20) and were also permitted and encouraged to attend prayer services in the public mosques.(21) Marriage was to be a contract between a man and a woman, and the marriage gift was to be paid directly to the bride as a gift, not to her father.(22) The woman's consent was required, and if there was any coercion by relatives, the woman could seek redress from the courts.(23) Polygamy was limited to a maximum of four wives, allowable only if it was possible to treat all of them equally.(24) Women obtained equality of participation during divorce proceedings and the right to receive maintenance after divorce.(25) The practice of inheriting a dead man's widow or widows was abolished,(26) as was the practice of female infanticide.(27)

   As a legal entity, a Muslim woman could own and manage her own property, and was granted status as an inheritor in a scheme of fixed shares.(28) With education incumbent on all Muslims, women became leaders in many fields, including the intellectual pursuit of religious scholarship.(29) It is interesting to note that at the time Islam was guaranteeing all of these rights for women, "the West was mired in that unenlightened period now known as the Dark Ages."(30)

   Even through this brief analysis, it becomes apparent that Muslim women certainly were not meant to be in a subservient and inferior position in Islamic society. Rather, Islam established women's equal worth and dignity. "What we find when we look at the personal status codes is a level of respect for women that is antithetical to the traditional understanding of Islam as disdaining and discriminating against women."(31) However, one particular area of Islamic personal status law which has not fully escaped allegations of gender-based discrimination is inheritance law.(32) Although it is recognized that one of the most significant aspects of the Islamic law of inheritance was the "far from negligible improvement in the position of females"(33) many view women's specific shares as based on gender inferiority stereotypes. This is reflected in the common misperception, by Muslims and non-Muslims alike, that a woman will only receive one-half the share that a man receives, precisely because she is a woman, thereby demonstrating the inherent inferiority of Muslim women in Islam.(34)

   This Comment demonstrates that the ratio of distribution between men and women is not two to one in all cases where men and women of the same class are inheriting together, and more importantly, that the distribution of inheritance through the fixed shares legislated by the Qur'an is not inherently gender-discriminatory, nor based on concepts of gender inferiority. If this was true, it would violate the two most central concepts of Islamic law. Part II elucidates the basic sources of Islamic law and these two important concepts which guide all Islamic legislation -- the pillars around which Islamic law evolves -- the concept of the intent of the law (maqasid) and the theory of effective causes of the law (ta'lil).(35) Part III introduces the fixed shares of inheritance set forth in the Qur'an as they relate to several different classes of women.(36) Part IV then analyzes the fixed shares in light of the concepts of maqasid and ta'lil, concluding that these two vital principles would be violated by the understanding that ratio differences, where they do exist, are based on gender inferiority.(37) Part IV also attempts to discover what cause may exist for a two to one ratio in certain cases, and how women's shares may in fact be augmented by other provisions of Islamic law.(38) Part V offers a brief comparison of women's inheritance laws in Islam with the succession laws of the United States.(39)

   It is important for all of us in the United States, living in such a diverse society, to understand that the Qur'an does not deny women equal inheritance rights on the basis of sex because it rebuts the allegation that the Qur'an places women in a position of subordination and inferiority. Moreover, "[a]ccess to information about Islamic law will become increasingly important to American jurists, lawyers, scholars, and political leaders as the American Muslim community grows."(40) Currently, the Muslim population in this country is conservatively estimated to be between five and eight million, and it is projected that, by early next century, Islam will be the second largest religion in the United States.(41) To assure the preservation of Islamic values, it appears inevitable "[t]hat Islamic law will play an increased role in the affairs of American Muslims"(42) particularly in matters of personal family law. Many American Muslims already seek to provide for an Islamic distribution of inheritance by specifying the scheme in their wills. As Muslims try to fulfill their Islamic religious obligations and also enter into agreements under Islamic principles, "the legal . . . communit[y] will be asked and sometimes required to address questions of law rooted in Islamic tradition."(43) Furthermore, Islamic organizations themselves will be called to provide advice on issues of Islamic law. Interest in the development of a viable Alternative Dispute Resolution (ADR) model for Muslims has increased dramatically,(44) particularly because ADR methods are "compatible with Islamic notions of fairness, justice, and peace."(45)

2. Principles of Islamic Law

   1. The Definition of Shari'ah (Islamic Law)

      Islam contains guidance for a complete way of life, and the Law of Allah (God) governs every aspect of human activity, both temporal and spiritual in nature.(46) Shari'ah literally means "the clear path," meaning the clear path chosen by God for man, and refers to what is now known as Islamic law.(47) "The primary goal of the shari'ah ... is to free Man from the grip of his own whims and fancy, so that he may be the servant of Allah [God]... [and] [t]o strengthen this ... goal, the purposes of the shari'ah ... have the interest of Man in sight."(48) This interest in the well-being of man is one of the most important principles of Islamic legal theory and is known as the concept of maslahah.(49)

      There are four sources of Islamic law unanimously accepted by the four Sunni schools of jurisprudence(50) -- the Qur'an, the Sunnah, ijma', and qiyas.(51) The...