Assignment on: Woman Rights under Feminist Legal Theory and Islamic Legal Theory

Topic: Woman Rights under Feminist Legal Theory and Islamic Legal Theory

Feminist legal theory starts, at least implicitly, with the belief that women are not treated the same as men are by the law or by legal actors. Women should be treated equally to men because we really are not very different, in terms of our hopes and dreams and desires and abilities. Women are in some ways different from men, but those differences are not weaknesses or deficiencies, and when the law accounts for them correctly, this promotes broadly accepted notions of justice and equality.

Feminist legal theory:

Feminist theory aims to understand the nature gender inequality. It examines women's gender role and lived experience feminist politics in a variety of fields, such as anthropology, sociology, psychoanalysis, and economics. Feminist legal theory is based on the belief that the law has been instrumental in women's historical subordination. The project of feminist legal theory is two fold.

1. Feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status.
2. Feminist legal theory is dedicated to changing women's status through a reworking of the law and its approach to gender.

History of Feminist legal theory:

The feminism political movement began in the nineteenth century with a call for female suffrage. Feminism movement aimed at defining, establishing and defending rights for women in society. Feminists have been fighting for and defending rights and equality for women in society, employment, relationships, politics and law.

According to feminists, traditional historians wrote from the male point of view and excluded that of the female. These historians did not inquire into women's role in making history, structuring society, and living their own lives. Feminists point out that male-written history has created a male bias regarding concepts of human nature, gender potential, and social arrangements.

In the mid-nineteenth century, many state legislatures passed married women's separate property acts. These acts gave women the legal right to retain ownership and control of property they brought into the marriage. 

 

Applications of Feminist legal theory:

 

The most important writings and practical applications of feminist legal theory have primarily occurred in the family law, criminal law, reproductive rights, and employment law arenas. These areas of the law tend to have the most immediate and extensive relationships to the general population of women. Important theoretical feminist work has also been done in legal disciplines such as property law, tax law, and corporate law. Eventually there will be multiple feminist critiques of every legal subject area.

Main approaches to feminist legal theory:

The four primary approaches to feminist jurisprudence are:

1. The liberal equality model.
2. The sexual difference model.
3. The dominance model; and
4. The postmodern or anti-essentialist model.

Each model provides a distinct view of the legal mechanisms that contribute to women's subordination, and each offers a distinct method for changing legal approaches to gender.

The liberal equality model:

Liberal feminism is an individualistic form of feminism theory, which primarily focuses on women’s ability to show and maintain their equality through their own actions and choices. Liberal feminists argue that our society holds the false belief that women are, by nature, less intellectually and physically capable than men, it tends to discriminate against women in the academy, the forum, and the market place.

Liberal feminists believe that “female subordination is rooted in a set of customary and legal constraints that blocks women’s entrance to and success in the so called public world” and they work hard to emphasize the equality of men and women through political and legal reform.

Liberal feminism ensure that men and women are treated as equals under the democratic laws that also influence important spheres of women's lives, including reproduction, work and equal pay issues. Other issues important to liberal feminists include but are not limited to reproductive rights and abortion access, sexual harassment, voting, education, fair compensation for work, affordable childcare, affordable health care, and bringing to light the frequency of sexual and domestic violence against women.

The sexual difference model:

The difference model emphasizes the significance of gender differences and holds that these differences should not be obscured by the law, but should be taken into account by it. Only by taking into account differences can the law provide adequate remedies for women’s situation, which is in fact distinct from men’s. The difference model is in direct opposition to the sameness account which holds that women’s sameness with men should be emphasized. To the sameness feminist, employing women’s differences in an attempt to garner greater rights is ineffectual to that end and places emphasis on the very characteristics of women that have historically precluded them from achieving equality with men.

The dominance model:

The dominance model rejects liberal feminism and views the legal system as a mechanism for the perpetuation of male dominance. It thus joins certain strands of critical legal theory, which also consider the potential for law to act as an instrument for domination.

Women's sexuality is socially constructed by male dominance and the sexual domination of women by men is a primary source of the general social subordination of women.

The anti-essentialist model:

Feminists from the postmodern camp have deconstructed the notions of objectivity and neutrality, claiming that every perspective is socially situated. Anti-essentialist and intersectional’s critiques of feminists have objected to the idea that there can be any universal women’s voice and have criticized feminists, as did Black feminism, for implicitly basing their work on the experiences of white, middle class, heterosexual women.

The anti-essentialist and intersection list project has been to explore the ways in which race, class, sexual orientation, and other axes of subordination interplay with gender and to uncover the implicit, detrimental assumptions that have often been employed in feminist theory.

Islamic Legal Theory:

The Muslim woman was given a role, duties and rights 1400 years ago that most women do not enjoy today, even in the West. These are from God and are designed to keep balance in society what may seem unjust or missing in one place is compensated for or explained in another place. Islam is a complete way of life

According to the Al- Quran, men and women have the same spirit, there is no superiority in the spiritual sense between men and women.

Islamic Feminism:

Islamic feminism is a form of feminism concerned with the role of women in Islam. It aims for the full equality of all Muslims, regardless of gender, in public and private life. Islamic feminists advocate women's rights, gender equality, and social justice grounded in an Islamic framework. Although rooted in Islam, the movement's pioneers have also utilized secular and European or non-Muslim feminist discourses and recognize the role of Islamic feminism as part of an integrated global feminist movement.

The movement seeks to highlight the deeply rooted teachings of equality in the religion, and encourage a questioning of the patriarchal interpretation of Islamic teaching through the Quran (holy book), Hadith (sayings of Muhammad) and Sharia (law) towards the creation of a more equal and just society.

History of Islamic legal theory:

During the early days of Islam in the 7th century women's rights affected marriage, divorce and inheritance. Women were not accorded such legal status in other cultures, including the West. Under Islamic law, marriage was no longer viewed as a status but rather as a contract, in which the woman's consent was imperative. The dowry, previously regarded as a bride-price paid to the father, became a nuptial gift retained by the wife as part of her personal property. Women were given inheritance rights in a patriarchal society that had previously restricted inheritance to male relatives.

William Montgomery Watt states that Muhammad, in the historical context of his time, can be seen as a figure who testified on behalf of women's rights and improved things considerably. He explains at the time Islam began, the conditions of women were terrible – they had no right to own property, were supposed to be the property of the man, and if the man died everything went to his sons." Muhammad, however, by instituting rights of property ownership, inheritance, education and divorce, gave women certain basic safeguards. Haddad and Esposito state that "Muhammad granted women rights and privileges in the sphere of family life, marriage, education, and economic endeavors, rights that help improve women's status in society. Woman Rights under Feminist Legal Theory and Islamic Legal Theory are as follows:

1. Education:

Women played an important role in the foundations of many Islamic educational institutions. According to the Sunni scholar Ibn Asakir in the 12th century, there were opportunities for female education. He wrote that girls and women could study, earn ijazahs (academic degrees), and qualify as scholars (ulema) and teachers. This was especially the case for learned and scholarly families, who wanted to ensure the highest possible education for both their sons and daughters.

Female education in the Islamic world was inspired by Muhammad's wives: Khadijah, a successful businesswoman, and Aisha, a renowned scholar of the hadith and military leader. Muhammad is said to have praised the women of Medina for their desire for religious knowledge: "How splendid were the women of the ansar; shame did not prevent them from becoming learned in the faith."

2. Civil and military work:

The women were involved in diverse occupations and economic activities. Women were employed in a wide range of commercial activities and diverse occupations in the primary sector (as farmers for example), secondary sector as construction workers, dyers, spinners, etc. and tertiary sector  as investors, doctors, nurses, presidents of guilds, brokers, peddlers, lenders, scholars, etc. Muslim women also held a monopoly over certain branches of the textile industry, the largest and most specialized and market-oriented industry at the time, in occupations such as spinning, dyeing, and embroidery. In comparison, female property rights and wage labour were relatively uncommon in Europe until the Industrial Revolution in the 18th and 19th centuries.

3.      Property, marriage, and other rights:

In terms of women's rights, women generally had fewer legal restrictions under Islamic law (sharia) than they did under certain Western legal systems until the 20th century. For example, under traditional interpretations of sharia, women had the right to keep their surnames upon marriage, inherit and bestow inheritance, independently manage their financial affairs and contract marriages and divorce.

As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of Shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them — hardly progress toward equality of the sexes.

In contrast to the Western world, during the 15th century and upward, where divorce was relatively uncommon until modern times, divorce (talaq) was a more common occurrence at certain points during that era in the Muslim world. 

4.      Women’s right to Maintenance:

According to Mohammedan Law, the husband is bound to maintain his wife (unless she is too young for matrimonial intercourse) so long as she is faithful to him and obey his reasonable orders. But he is not bound to maintain her who refuses herself to him or is otherwise disobedient. Unless the refusal or disobedient is justified of non payment of prompt dower. If the Husband is neglect or refuses to maintain his wife without any lawful cause the wife may sue him for maintenance. After divorce the wife is entitle to maintenance during the period of Iddat. A pregnant woman is entitled to maintenance till she delivers the child.

5.      Equality in leading prayer:

Recently Islamic feminists have begun advocating for equality in the mosque and equality in prayer, as you can see in the Equality in the Mosque and Equality in Prayer. According to currently existing traditional schools of Islam, a woman cannot lead a mixed gender congregation in salat (prayer). Some schools make exceptions for Tarawih (optional Ramadan prayers) or for a congregation consisting only of close relatives.

Conclusion:

Finally, the daily lives of many Muslim women and their life choices—whether they live in an Islamic state or as part of a Diaspora in a Western liberal state—are governed and shaped by a set of patriarchal beliefs and laws for which divine roots and mandates are claimed. Only the elite and the minority of highly educated women have the luxury of choice, of rejecting or challenging these beliefs and laws. A movement to sever patriarchy from Islamic ideals and sacred texts and to give voice to an ethical and egalitarian vision of Islam can and does empower Muslim women from all walks of life to make dignified choices. This, in the end, is what Islamic Feminism is about.