Women in Islamic Law

1. Women in Islamic Law

2. Getting to know your speaker • Founder of Gems of Light in MN • PhD Islamic Studies/ Jinan University • MA Contemporary Islamic Studies/ Alquds Uni. • B.A Islamic fiqh and Jurisprudence/ Alqudsuni. • Married to Dr. Sami Ameri, author on various books on Islam. • I have 3 Children, ages: 3,5,7 • Born in 1979 in MN. Palestinian, Spanish, Native origins. Tunisian Husband.

3. Intro… • To speak about the topic we must define: • What is Shari’a? • What are the references of Sharia? • Who defines Shari’a? • Then • Speak about women in Sharia by answer the following: • What is the status of women in Shari’a? • On What basis are women’s rolls defined in Shari’a? • What are women’s rolls (i.e. rights and obligations) based on Shari’a? • Who defines these rolls? • Have women takes their responsibility in explaining Shari’a?

4. What is Shari’a ? • Shari’a linguistically means path, Ibn Al-arabi says: “shari’a linguistically means the pathway to water, which was given as an example for truth which has purity, authenticity, goodness in its source.” Shari’a was given this name because of the similarities between it and water that is the source of life. • Technically: general principals and laws Allah Almighty had sent unto the prophets to: • Maintain the pure fitra (human instinct) of man in: • Elevate public and individual spirituality (deen) • Preserve public and individual lives (nafs)نفس • Preserve public and individual mind (aql)عقل • Preserve public and individual chastity (ird)عرض • Preserve public and individual wealth (security) مال

5. Yet, shari’a technically means what Allah has set as a pathway and obligated acting upon it; for the sake of protecting the creations benefits and interests. Shari’a includes the following issues, worship, traditions, daily life actions, transactions, criminal judgment, morals and manners… • Technically: general principals and laws Allah Almighty had sent unto the prophets to: • Maintain the pure fitra (human instinct) of man in: • Elevate public and individual spirituality (deen) • Preserve public and individual lives (nafs)نفس • Preserve public and individual mind (aql)عقل • Preserve public and individual chastity (ird)عرض • Preserve public and individual wealth (security) مال

6. The main prophet’s mission was to convey worshiping Allah Almighty as He accepts and obligates • (51:56): “I have only created Jinns and men, that they may serve Me.” • Allah Almighty says based on what Ibrahim صلى الله عليه وسلم said: “Say: "Truly, my prayer and my service of sacrifice, my life and my death, are (all) for Allah, the Cherisher of the Worlds; [163] "No partner hath He: this am I commanded, and I am the first of those who bow to His Will."

7. A believer’s worship, daily actions, habits, transactions, sleeping, waking up and all his actions are to be done for the sake of Allah Almighty and as He Almighty had obligated. • Rib’iy bin Amer (one of the companions) has said: “Allah has obligated and sent us to take out who desires from worshiping the servants to worshiping Allah, and from the narrowness of this world to the its vastness. And from the oppression of religions to Islam’s justice.” although is not authentic, but maybe used in this case.

8. Following the commandments of Allah Almighty is worship, and Islam is submitting to Allah Almighty in: • Intentions • Actions, in both oral and outer behaviour.

9. Shari’a includes fiqh • Fiqh: • Literally: jurisprudence • Technically: the science of deriving practical rulings from the considerable detailed evidences • OR • Knowing Allah’s rulings concerning people’s actions, whether obligatory, forbidden, liked, disliked, or permissible. In which such rulings are derived from certain Islamic sources. • Practical rulings: human actions not creed… • Detailed evidences: Quran, Sunnah, Analogy, unanimous agreement, companions of the prophet, blocking the doors of evil, previous prophet’s rulings, culture, general benefit….etc. • A faqeeh: is the person that has great knowledge in fiqh. It’s plural is fuqaha’

10. Comprehensiveness of Fiqh • Worship- this aspect of Fiqhdeals with Islamic rituals such as salah, Zakaah, Siyaam, and hajj. • Family issues- this aspect of fiqhdeals with family relations and ties, such as engagement, marriage, divorce, child custody and so forth • Transactions- this aspect of fiqh is deals with the financial relations within the Muslim and non Muslim community.

11. Politics- this aspect of fiqh deals with the organization of government, and governmental organizations in regards to the Muslim nation. • Peace and war- this aspect of fiqh deals with foreign relations with other countries

12. Scrutinizing the word Shari’a • “It refers to the sum total of Islamic Laws which were revealed to the Prophet Muhammad {صلى الله عليه و سلم}which are recorded in the Qur’aan as well as deducible from the Prophet’s divinely guided lifestyle (called the Sunnah).” • محمد شلبي المدخَل في التعريف بالفقه الإسلامي.

13. Fiqh, shari’a are pathways for guidance • The Prophet (saw) said, “Whom ever Allah wills good for them, He gifts them the deep understanding of the religion (Bukhari, Muslim, IbnMajah) • Allah Almighty says, “It is He Who has sent His Messenger with guidance and the religion of truth.” (al-Fath 48:28) • Allah says: “Guide us to the straight path – the path of those upon whom You have bestowed Your favour – not the path of those who evoke Your anger, nor of those who have gone astray.” (Al-Fatiha 1:6-7)

14. الفروق بين الشريعة والقانونWhat is the difference between law and shari’a • Source and foundation: Sharia is divine. Yet, law is man made • References: Shari’a is based on references: Quran, Sunnah, Consensus, juristic deduction.. Closing pretenses …tradition. Yet, law does not stand on certain references. • Goal and aim: man made laws’ main goal is mundane and worldly. Yet, shari’a’s goal is dunya and hereafter. (28:77): “"But seek, with the (wealth) which Allah has bestowed on thee, the Home of the Hereafter, nor forget thy portion in this World: but do thou good, as Allah has been good to thee, and seek not (occasions for) mischief in the land: for Allah loves not those who do mischief." • Continuity and evolution: man made laws are normally temporary to suit a certain period of time, such as immigration laws. As for shari’a its goals and purposes are clear not capable of changing, even though it is flexible. • The side of forgiveness in shari’ais stronger than that in man made laws. Since shari’as’ main goal is to give chances for repentance, yet, punishment is a way to lead to that. As for man made laws their main goal is punishment and reprimanding.

15. Differnce between fiqh and Shari’a • Fiqh changes according to the circumstances surrounding it(i.e. context). • Fiqh laws tend to be specific yet detailed: they demonstrate how the basic principles of Shar’eeah should be applied in given circumstances. • Shar’eeah. • Shar’eeah is the body of laws found both in the Qur’aan and Sunnah. • Shar’eeah is fixed and unchangeable. • The laws of Shar’eeah are, for the most part, general: they lay down basic principles.

16. What do we learn in fiqh? • The general and detailed guidelines relating to every aspect of our life. • How to live a safe, peaceful, and a just life • How to stay away from life complications • Catalogue that gives you the path to live based on guidance

17. Who is forming the rulings? • Allah Almighty in the Quran. • The prophet peace be upon him, does not speak of himself, but was taught and ordered to explain the words of Allah in words and action. وما ينطق عن الهوى • Secondly, in surahTahreem, Allah says to the Rasool (صلى الله عليه وسلم) “Why do you deem something not permitted which Allah has made halal?” • The Prophet peace be upon him had absolutely no part in establishing the ruling without the order of Allah Almighty.

18. The messenger –peace be upon him- was given • Sahaba as the prophet’s companions were the most capable of understanding the context of Islamic texts. • Fuqaha (Islamic scholars of fiqh) with their education on fiqh acquired the capacity to derive rulings from the resources.

19. What are the 1st sources of fiqh/ Shari’a? • The Qur’an • The Sunnah, as established by hadith • Ijma’ (consensus) • Qiyas (analogy)

20. 1st Source of fiqh: Quran • Close to 350-700 legal Ayât (verses) أيام الأحكامin the Qur’aan. Approximatly: • 140 verses deal with devotional issues such as: Salaah, Zakaat, Siyaam, hajj, jihad, repentance, the taking of oaths, and charities. • 70 verses deal with marriage, divorce, the waiting period, revocation, mahar, maintenance, custody, fosterage, paternity, inheritance and bequest. • Another 70 verses deal with commercial transactions. • 30 verses deal with crimes and penalties. • Another 30 deal with rights and obligations of citizens. • Ten verses dealing with economic matters.

21. History of Quran revelation in terms of legislature • The Mekkan period (609 622 C.E) • focused, on Tawheed, and pillars of eman • The legislature was very limted to: • Salah (the only ruling sent in Mecca) • Forbiding: riba, killing, infantaside, zina, sexual deviation of all types, oppression in general

22. History of Quran revelation in terms of legislature • The Madeenan period (622-632 C.E) focused on the rest of legislature • Family laws • Foreign policy • Criminal laws • Rituals

23. 2nd source of legislature: Sunnah • Sunnah as a source is obligatory to consider. • Do not confuse the terminology of Sunnah in other sciences with the terminology of Sunnah as a reference. • sunnah is defined as: “what has been (authentically) related to us on behalf of the prophet {صلى الله عليه و سلم} from his sayings, actions, silent approvals (reports), and description of his sifaat (features).

24. Sunnah is part of the revelation and guidance • Explains the Qur’an. • وَأَنْزَلْنَا إِلَيْكَ الذِّكْرَ لِتُبَيِّنَ لِلنَّاسِ مَا نُزِّلَ إِلَيْهِمْ وَلَعَلَّهُمْ يَتَفَكَّرُونَ. “We have sent down unto thee the Remembrance; so you can explain clearly to men what is sent for them, and that they may give thought.” Surah Al-Nahl Verse 44.

25. The sunnah obligates and forbids as the Quran • Allaah has equated obedience to the Messenger with obedience to Himself. .مَنْ يُطِعِ الرَّسُولَ فَقَدْ أَطَاعَ اللَّهَ “Whoever obeys the Messenger, in fact, obeys Allah.” • Surah Nisaa Verse 80.

26. Sunnah is a legislator • فَلَا وَرَبِّكَ لَا يُؤْمِنُونَ حَتَّى يُحَكِّمُوكَ فِيمَا شَجَرَ بَيْنَهُمْ ثُمَّ لَا يَجِدُوا فِي أَنْفُسِهِمْ حَرَجًا مِمَّا قَضَيْتَ وَيُسَلِّمُوا تَسْلِيمًا. “But no, by thy Lord, they can have no (real) Faith, until they make thee judge in all disputes between them, and find in their souls no resistance against thy decisions, but accept them with the fullest conviction.” • Surah Nisaa Verse 65.

27. Even the Prophet peace be upon him was following the shari’a • [1] O prophet! Why do you make forbidden that which Allah has made lawful to you? You seek to please your wives but Allah is oft-forgiving, most merciful. • [2] Allah has already ordained for you, (O men), the dissolution of your oaths (in some cases): and Allah is your protector, and he is full of knowledge and wisdom. • [3] when the prophet disclosed a matter of confidence to one of his consorts, and she then divulged it (to another), and Allah made it known to him, he confirmed part thereof and repudiated a part. Then when he told her about it, she said, "who told you this?" He said, “He told me who knows and is well-acquainted (with all things).“. • Surah Tahreem verse 1-3.

28. The story of the earlier mentioned ayat • 'A'ishah, may Allah be pleased with her, narrated:Allah's messenger (may peace be upon him) used to spend time with ZainabbintJahsh and drank honey at her house. She ('A'ishah) further said: I and Hafsah agreed that one whom Allah's messenger (may peace be upon him) would visit first should say: I notice that you have an odor of the Maghafir (gum of mimosa). He (the holy prophet) visited one of them and she said this to him, whereupon he said: I have taken honey in the house of ZainabbintJahsh and I will never do it again. It was at this (that the following verse was revealed): why do you forbid (for yourself) that which Allâh has made lawful to you... (Up to) if you two ( 'A'ishah and Hafsah) turn in repentance to Allâh, up to: and (remember) when the prophet (saw) disclosed a matter in confidence to one of his wives (Hafsah) this refers to his saying: but i have taken honey. • Sahih Muslim 2694.

29. Following the sunnah is guidance • َقَدْ كَانَ لَكُمْ فِي رَسُولِ اللَّهِ أُسْوَةٌ حَسَنَةٌ لِمَنْ كَانَ يَرْجُو اللَّهَ وَالْيَوْمَ الْآخِرَ وَذَكَرَ اللَّهَ كَثِيرًا. “You have indeed in the Messenger of Allah a beautiful pattern (of conduct) for any one whose hope is in Allah and the Final Day, and who engages much in the praise of Allah.” • Surah Al-Ahzaab Verse 21.

30. Levels of hadeeth • Saheeh (Authentic) • Hasan • Da’eef (weak)

31. Conditions of an authentic hadith • Each reporter should be trustworthy, pious in his/her religion • He/She should be known to be truthful in his narration • He should have met the person he narrates from • He/she should be free of ill manners خوارم المروءة • He should know how to report the hadeeth verbatim not just its meaning • The hadith he/she reports should not contradict a hadith that was narrated by someone that is more authentic than them.

32. Hadeeth Hasan • One of the narrators is not as good in wording the hadeeth as others. Poor memory in remembering the exact wording of the hadith.

33. Weak (Da’if) Hadeeth • A hadeeth that fails to meet the status of Hassan • One of the conditions of authentic hadith is not met, such as one of the narrators discovered with: lying, excessive mistakes, opposition to a more reliable narration, involvement in innovation, or ambiguity surrounding his person

34. 3rd source; Scholars CensusIjama • According to the scholars, Ijma is defined as the unanimous agreement of the mujtahidun of the Muslim community of any period following the death of the prophet (SAW) on any matter.

35. Qiyas (analogy) • Literally Qiyas means measuring or determining the length, weight, or quality of something. • Qiyas also means comparison to establish equality or similarity between two things. • According to the scholars Qiyas is the extension of Shar’iah ruling from an original case (Asl) to a new case (far’) because the new case has the same effective cause (Illahعلى) as the original case. إلحاق فرع بأصل لاشتراكهما في علة الحكم

36. Overall Principalesof Shar’iah • Imam Ibn al Qayyim wrote: “Shari'ah is based on wisdom and achieving people's welfare in this life and the afterlife. Shari'ah is all about justice, mercy, wisdom, and good. Thus, any ruling that replaces justice with injustice, mercy with its opposite, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to the Shari'ah, even if it is claimed to be so according to some interpretations.” • (Shamsuddin Ibn al-Qayyim, I`lam Al-Muwaqi`in, ed. Taha Abdul Rauf Sad, Beirut: Dar Al-Jeel, 1973) • الشريعة مبناها وأساسها على الحكم ومصالح العباد في المعاش والمعاد. وهي عدل كلها، ورحمة كلها، وحكمة كلها، ومصلحة كلها، فكل مسألة خرجت عن العدل إلى الجور، وعن الرحمة إلى ضدها، وعن المصلحة إلى المفسدة، وعن الحكمة إلى العبث، فليست من الشريعة، وإن أدخلت فيها بالتأويل

37. Other references a “faqeeh” considers • MaslahaMursalah(extended analogy) • Istihsan(juristic preference) • Urf العرف tradition and culture • سد الذرائع (blocking the means) • Qawl as Sahabi (opinion of a Companion ) • Shar’ man qabala (previous scriptures)

38. الاستحسانistihsan • According to some Scholars Istihsan is considering a rare ruling over the common ruling, for a strong reason which the scholar considers • Example of Istihsan is the decision of Umar Bin Khattab (RAA) not to enforce the Hadd penalty of stealing, even though there is textual evidence that proves its application, but left the application for a widespread famine.

39. Istihsan regulation • Note: “strong reason” that the scholar of fiqh considers is to be supported by scrutinizing other texts not by personal opinion. • Other example: A women is to never uncover in front of non mahrams, but in severe cases when female providers are not available, the woman may uncover the needed part in front of male doctors for evaluation.

40. Maslaha (Benefit) مصلحة مرسلة • Maslaha literally means benefit or interest. The benefit referred to here is when it regards Sharia principalsمقاصد الشريعة . • Example: the Caliph Abu Bakr collected and compiled the scattered records of the Qur’an in a single volume, he also waged war on those who refused to pay the Zakat.

41. Regulations for Maslahaمصلحة مرسلة • It must not contradict a text • It is to preserve the principles of sharia • It does not contradict the unchangeable rulings in Islam • It does not contradict a more considerable benefit. • It is a real needed benefit that shari’a considers, not a personal desire • It’s a public interest not an individual need.

42. Culture عرف urf • Urf according to the scholars is: recurring practices which are acceptable to people of sound nature. • Verbal traditionعرف قولي : using a word to mean something different than the literal meaning. • Practical traditionعرف فعلي : common practices which people have generally accepted and understand. Such as garage sales selling used things. • General tradition: known to everyone • Certain tradition: practices practiced in certain countries or amongst people from certain backgrounds.

43. Tradition and Culture are only to be considered if they do not contradict the text of Quran and Sunnah. • Considering tradition and culture over the words of Allah and the Sunnah of Rasool Allah is Jahiliyya.

44. Blocking the means of evil and fitnahسد الذرائع • Saddal-dhare ‘ (blocking the means of a fitnah that will most likely happen if not blocked) • All shari’a rulings are based on this rule. A Muslim is ordered to lower the gaze to prevent him/her from falling into a major sin. …etc. • Example of Sadd al-dharai: • Allah (SWT) said: “And insult not those whom they (disbelievers) worship beside Allah, least they insult Allah wrongfully without knowledge.”

45. الشاطبي considerable conditions for blocking the means of evil سد الذرائع • The means are permitted things initially, but they would be prevented based on the following: • What will always lead to evil, such as a well in public. It is to be prevented totally. • What rarely leads to evil but has a benefit, such as planting grape trees in fear of making it into alcohol. Or seeing the girl during marriage purposal. • What leads to evil at many times, and its harm is more than its benefit, such as selling grapes for alcohol producers, or swearing at the gods or mocking others religion. وَلَا تَسُبُّوا الَّذِينَ يَدْعُونَ مِنْ دُونِ اللَّهِ فَيَسُبُّوا اللَّهَ عَدْوًا بِغَيْرِ عِلْمٍ} [الأنعام: 108] • What usually leads to evil not at many times or rarely

46. Not ruling by Islam is Jihilya • {أفحكم الجاهلية يبغون و من أحسن من الله حكما لقوم يوقنون} • “Do they then seek the judgment of the days of ignorance? And who is better in judgment then Allaah for a people who have faith.” • Surah Al-Maaidah Verse 50

47. Rulings in Shari’a • Obligatory (Fard/ Wajib): text ordering, one rewarded for doing, and at sin for leaving • Sunnah: text recommending, rewarded for doing, and not sinned for leaving. Unless, denying. • مؤكدة • غير مؤكدة • Mubah/ halal: text giving you the option • Makrooh: text disliking • Tanzeeh • tahreem • Harram: text forbiding, one at sin for doing, and rewarded for leaving

48. How was Fiqh formed? • The Era of the Prophet (saw) 609-632 • The Era of the KhulafaRashideen 632-661 • The Ummayad Dynasty 661-750 • The Abassid Dynasty 750-950 & 960-1250 • The destruction of Baghdad 1258-2010

49. The Foundation 609-632 Era of Prophet hood. • Differences existed but were limited. And the prophet peace be upon him was the one to go to in case of dispute. • The ideological foundations of Islam were laid down. • Some differences the prophet peace be upon had accepted and others he rejected • Foundation of Islamic sciences were taught to the companions. • The women came forward to ask the questions themselves.

50. Establishment of fiqh 632-66111hijra-41 hijra • The basis of deductive Fiqh principles were laid down during the reign of the Righteous Caliphs. • The addition of vast new non Arabic territories brought Muslims into contact with many different cultures and issues; which were not specifically covered in the text. • During this time some rulings were canonized by the khulafa’, such as the inheritance of the grandmother.