How can a property own a property? Haw can the last colony in the Arab world, namely women, have autonomy and sovereignty? How can Arab women reverse years of misogynistic interpretation of the Islamic canons? How can victims of domestic violence have rights to housing, owning property or inheritance? How can Muslim women today challenge the misogynistic Islamic interpretation of the Qur’an and the Sunna, the traditions of the prophet, which are intended to maintain male dominance? If Islam has functioned for centuries under patriarchy how can we restore its ethical and egalitarian thrust?
Women’s property, housing and inheritance rights are organically related to a web of societal, religious and political structures that enforces women’s second-class citizenship. These structures and practices, which are difficult to challenge and change, are behind the discriminatory and oppressive laws such as article 340 in the Jordanian Penal Code, and the laws of inheritance, which are complex, multi-layered and organically related to the position of women in Arab and Muslim society and cannot be examined except as a trajectory. I believe that we will not be able to find a way out if we restricted ourselves to studying the Islamic Shari’a law and its decrees on women’s inheritance. The two most important factors, which influence women’s right to inheritance are related to the undermining of women’s autonomy, namely violence against women, and to the time bound religio-historical rational behind the Islamic laws of inheritance.
Violence against women:
When Maha refused to give up her inheritance her mother was the first to rebuke her saying that she will destroy her brother’s livelihood by dividing the land between them. The land will also go out of the hands of the family and clan and become the property of the opposing tribe of her husband. Maha insisted, but she was subjected to systematic harassment, bullying and beating then finally they held a gun to her head and she signed away the deeds. Maha’s husband was not impressed and decided to get married to another woman and Maha decided to roam the mountains until people said that she had gone mad. Last time I saw Maha she was totally broken. This is a true story and I do wish that it is an isolated incident. My research shows time and time again that women are perceived as the property of men, as second-class citizens, residing in the domestic domain, which lies outside the arm of the state and the international community.
In Jordan under what Brand describes as ‘managed liberalisation’ there is a serious confusion over not only the position of women in society, but also over issues related to civil rights and equality of all citizens regardless of their gender. There is an urgent need for an open and honest debate to examine the confusing and dangerous vocabulary used in discussing women, redefining and clarifying such words as ‘modern’, ‘traditional’, ‘free’, ‘liberated’ etc. This debate cannot even begin if it were confined to issues related to women’s position in society, but it has to examine questions related to social justice, democracy and respect for human rights of all citizens.
In neo-patriarchal Arab society masculinity, on the one hand, is often praised and exonerated. Popular culture is full of sayings, signals and proverbs which glorify men, their masculinity and image. Through ideologies and social constructs, through the lack of civil and criminal remedies and their interpretation, which often fails to give women adequate protection, we find that male violence is frequently, if covertly, legitimated. Men in general, but specifically within Arab-Islamic culture, are considered to be guardians of their female relatives and are given the right to police and chastise them.
Femininity, on the other hand, is socially constructed in such a way to favour good sweet maids, who conform to accepted gender models. They must be passive, selfless and above all sexually pure or chaste. This image of docile females can be found in a myriad of culture products starting with educational material all the way to books exonerating the chastity of Muslim women body, mind and soul. Fredrick Engels wrote, ‘In order to make certain of the wife’s fidelity and therefore the paternity of the children, she is delivered over unconditionally to the power of the husband; if he kills her, he is only exercising his right.’ So property is not entitled to own property. Sweet maids do not argue with their brothers over inheritance and other economic rights. The language of commerce is perceived to be quintessentially masculine.
These ideas and images endured and remained powerful in contemporary Jordanian society mainly among the young, uneducated and those who live in densely populated areas. 72.3% of the perpetrators of violence against women are in the age-group 19-30, 32.4% of perpetrators are either illiterate or had some primary education, 46.3% of perpetrators live in traditional heavily populated areas, where housing lacks basic hygienic services and where families generally have little respect for social values and the law. So where they are most vulnerable economically and socially women not only have few rights they also believe that the policeman and legislator will not protect them when the chips are down.
The issue of violence against Jordanian women, which occurs within the domestic sphere, is perceived to be both private and unimportant. Although some women’s groups and private lobbies are pressing for changes to laws and the way domestic violence is dealt with and penalised, many sections of society believe that the matter should be kept private despite the fact that personal abuse of women was recognised in 1993 by the Vienna World Conference as a human rights’ issue. The formal expression of this commitment can be found in the 1993 UN Declaration on the Elimination of Violence Against Women (DEVAW), which accepts that violence against women is a manifestation of historically unequal power relations between men and women, and article (5) of The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was adopted in 1979 by the UN General Assembly.
The religio-historical dimension:
Islam guarantees for the woman a share in her relatives’ inheritance specified on the basis of her degree of kinship to the deceased. The Qur’an does specify that a sister inherits half of the amount her brother inherits, but also specifies that other females of different degrees of kinship may inherit more than other males. Nevertheless, given the Qur’anic specification, it appears that the male sibling inherits double the amount inherited by his sister, but there is one important difference between her inheritance and his. The amount inherited by the sister is a net amount added to her wealth. The amount inherited by the brother is a gross amount from which he will have to deduct the expenses of supporting the various women, elderly men and children in his family, one of whom may be the sister herself. Even if the sister is wealthy, she is not required to support herself. Her closest male relative has that obligation, which she may waive only if she so chooses. Consequently, the net increase in the wealth of the brother is often less than that of his sister.
Male-Dominated readings of Islam in the Middle Ages gave birth to ‘Establishment Islam’, with it’s technical and legalistic version of Islam, a version that largely bypasses the ethical thrust of Islam and its humane and egalitarian spirit. Patriarchy using the interpretations of the dominant Islam, however, has simplified the inheritance picture drastically. Many Muslim women receive no share of their inheritance at all. Some are forced by their own families to turn their inheritance over to their brothers. Worse yet, many brothers take the inheritance and disappear from the lives of their sisters who have no closer male relative obliged to support them or capable of doing so. In the past, Muslim courts prosecuted such behavior and compelled the brother to support the sister. Today, many injustices go unnoticed, and the balance of rights and obligations in the Muslim family has been upset.
The administration of the Shari’a laws on inheritance emphasise the provision that male heirs be given a double share under the faraid distribution, without emphasizing the rationale behind this rule. The man has the legal responsibility to provide maintenance for all the female members of his family. Today, however, many women have to earn a living and contribute towards the family expenditure and many households have a female head. Moreover divorced or widowed mothers often have to provide for their children without assistance (or adequate assistance) from the father or male relatives, who should have provided for her and her dependents.
In pre-Islamic Arabia, women had no inheritance rights and Islam introduced the rule to curtail men’s economic power. The affirmation of women’s right to inherit and control property and income without reference to male guardianship fundamentally qualifies the institution of male control as an all-encompassing system. Lack of historical understanding and misconceptions regarding such issues as men’s double share of inheritance, have led to seeing such provisions as divinely ordained rights conferred upon Muslim men, instead of as divinely ordained limitations upon male rights that had been previously conferred by the patriarchal pre-Islamic society. So the divine law clearly tilts towards equality between the sexes and protection of the weak and vulnerable.
The great Muslim reformist Asghar Ali Engineer wrote, ‘Life is normally governed more by sociological than theological realities and the law of inheritance, as far as the women are concerned, was observed more in the breach rather than the observance. In the name of Islam what is being defended are the male privileges which become part of the Islamic Shari’a law not because but despite the Qur’anic provisions. Also the Shari’a as formulated by the early jurists should not be treated as final, and wherever necessary, should be reinterpreted and even reformulated.’ So the need for ijtihad, reinterpretation of the Qur’an and the Sunna and intellectual reasoning, and tajdeed, renewal, has never been greater.
- Address the lack of civil and criminal remedies and their interpretation, which often fail to give women adequate protection. The state and the international community must protect the autonomy and sovereignty of both urban and rural women by clamping down on domestic violence. States must be urged to monitor incidents of violence against women, legislate against them, simplify the procedures of reporting them, and educate the police and other professionals, who deal with such issues.
- Challenge wide spread cultural signals that glorify and legitimate male supremacy and violence.
- Reject binary thinking, which separate between the private and the public spheres. A new concept of citizenship might challenge the political exclusion of women by the nation-state. A multi-layered conceptualisation of citizenship to loosen its bonds with the nation-state, so that citizenship is defined over a spectrum that extends from the local through to the global. A different concept of citizenship might bring domestic violence, property and inheritance rights out of the private into the public sphere, where it is placed within the scope of legal regulation and universal declarations and conventions of human rights.
- Most women in the Arab and Muslim world are not only ignorant of their inheritance and other economic rights they cannot find the vocabulary to articulate such rights. So the vocabulary has to be claimed, neutralised and disseminated among women to feminise the language of property and commerce. It is important to urge Arab countries to introduce financial management subjects at school, which will also cover women’s economic rights.
- If the Islamic Shari’a will remain the law of the land then I recommend choosing one of the following strategies:
The traditionalist approach:
- To educate women concerning their right to inheritance and encourage Muslim males to consider alternative strategies sanctioned by Islamic jurisprudence relating to property and income such as hibah (gift), wasiyah (testamentary disposition), amanah (trust), and waqaf (endowment) to provide for the weak and the poor in their family.
- To convince women to claim what the Shari’a has entitled them to and provide a mechanism for claiming financial maintenance from male relatives.
- To encourage women to negotiate with male heirs if they feel that they deserve a larger share of the inheritance.
The reformist approach:
- Organise a conference at al-Azhar Islamic University, Cairo, to look at the Shari’a initiate a radical revision of Islamic edicts concerning inheritance and to re-examine Islamic scholarship relating to Islamic jurisprudence and the Sunna, the traditions of the prophet, with the aim of reforming the Shari’a provisions. The reform has to be in harmony with Islam’s ethical vision, which is uncompromisingly humane and egalitarian.
- The Shari’a as formulated by the early jurists should not be treated as final, and wherever necessary, should be reinterpreted and even reformulated in the light of the societal and economic changes. If women are heads of household and/or sole earners surely their share of inheritance has to be revised accordingly even if on case by case bases.
- To document any ijtihad in the Muslim world that favours changing women’s inheritance rights and disseminate the information widely, especially among the judiciary.
- Women’s involvement in ‘Ilm al-Fiqh, the knowledge of jurisprudence, was documented by male scholars when writing on Islamic sciences. Muslim women have been involved in the studying and teaching of Islamic sources, such as: Bint Al-Shati’, professor of tafsir in Egypt and Morocco who died recently, Zainab Al-Ghazali, the leading Egyptian member of the Muslim Brotherhood, who published an interpretation of the Quran in 1994 and her own autobiography, Rifaat Hasan, Aziza al-Hibri and Fatima Mernissi. Interpretation of textual Islamic material cannot be complete without a complex interaction with the Sunna, a thorough understanding and critical reading of the fiqh, and a continuous process of ijtihad, interpretation and measured reasoning, and tajdid, renewal, to place the divine and timeless within the relative and time-bound. If these preconditions are going to be met it is important to encourage women to join Islamic universities and to train to become mujtahidat, interpreters and reforms. This might lead to an initial period of conservatism followed by an opening up of possibilities for Muslim women not only concerning their inheritance and property rights, but also other thorny issues such as qawama, male guardianship, and wadhrubuhunna, women’s chastisement.