Contesting Justice , livre ebook

State University of New York Press - Ahmed E. Souaiaia

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198 pages

English

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Description

Contesting Justice examines the development of the laws and practices governing the status of women in Muslim society, particularly in terms of marriage, polygamy, inheritance, and property rights. Ahmed E. Souaiaia argues that such laws were not methodically derived from legal sources but rather are the preserved understanding and practices of the early ruling elite. Based on his quantitative, linguistic, and normative analyses of Quranic texts—and contrary to the established practice—the author shows that these texts sanction only monogamous marriages, guarantee only female heirs' shares, and do not prescribe an inheritance principle that awards males twice the shares of females. He critically explores the way religion is developed and then is transformed into a social control mechanism that transcends legal reform, gender-sensitive education, or radical modernization. To ameliorate the legal, political, and economic status of women in the Islamic world, Souaiaia recommends the strengthening of civil society institutions that will challenge wealth-engendered majoritism, curtail society-manufactured conformity, and bridle the absolute power of the state.
Illustrations
Preface
Acknowledgments

Introduction

1. Legal Absolutism and Ethical Relativism
To Know or Not to Know: The Basis of Acts
Cognition through Models and Paradigms

2. The Domain of Ethics and the Law
Chronology of Islamic Thought
Ethics, Morality, and the Law
     Determining God’s Position
     Core and Marginal Sanctions
Emotion and Law in the Qur’anic Discourse
     Threats, Incentives, and Piety
     Crime and Punishment

3. Basis for the Practice of Polygamy
On the Methodological and Historical Assumptions
Methodological and Disciplinary Precedence
Polygamy in the Historical Context
The Philology of Polygamy

4. Women in Islamic Law of Inheritance
The Qur’anic and Interpretive Dichotomy
     The Legal and Exegetical Treatment of the Verses on Inheritance
     Women, Justice, and Interpretation: The Principle of `Awl
     Explicitness, Consensus, and Interpretation
     Shares and Heirs in the Comparative Context
Shares and Heirs per Blind Survey
     Description of Data Collection
     Explanation and Interpretation of Data

5. Women in Modern Times
Discussion
Linking Polygamy and Inheritance: Disadvantaging Women by the Numbers
Discussing the Status of Women
Other Contested Perspectives
Bespoke Justice versus Tyranny of Majoritism
Inclusion and Exclusion of Women

Conclusion

Appendix A
Timeline of Scholars and Major Figures

Appendix B
Glossary of Key Arabic Terms and Their Derivatives

Notes
Bibliography
Index

Sujets

History of religions

Islam

Informations

Publié par	State University of New York Press
Date de parution	10 mars 2010
Nombre de lectures	0
EAN13	9780791478578
Langue	English
Poids de l'ouvrage	2 Mo

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Contesting Justice
Contesting Justice
Women, Islam, Law, and Society
Ahmed E. Souaiaia
Cover images courtesy of the author.
Published by State University of New York Press, Albany
2008 State University of New York Press, Albany
All rights reserved
Printed in the United States of America
No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording or otherwise without the prior permission in writing of the publisher.
For information, contact State University of New York Press www.sunypress.com
Production by Eileen Meehan Marketing by Anne M. Valentine
Library of Congress of Cataloging-in-Publication Data
Souaiaia, Ahmed E.
Contesting justice : women, Islam, law, and society / Ahmed E. Souaiaia. p. cm.
Includes bibliographical references and index.
ISBN 978-0-7914-7397-9 (hardcover : alk. paper) 1. Islamic law-Philosophy. 2 Islamic law-Methodology. 3. Koran-Hermeneutics. 4. Polygamy (Islamic law) 5. Women-Legal status, laws, etc. (Islamic law) 6. Islamic law-Social aspects. I. Title
KBP50.S68 2008 340.5 9-dc22
2007017444
10 9 8 7 6 5 4 3 2 1
To my mother
Contents
Illustrations
Preface
Acknowledgments
Introduction
1. Legal Absolutism and Ethical Relativism
To Know or Not to Know: The Basis of Acts
Cognition through Models and Paradigms
2. The Domain of Ethics and the Law
Chronology of Islamic Thought
Ethics, Morality, and the Law
Determining God s Position
Core and Marginal Sanctions
Emotion and Law in the Qur nic Discourse
Threats, Incentives, and Piety
Crime and Punishment
3. Basis for the Practice of Polygamy
On the Methodological and Historical Assumptions
Methodological and Disciplinary Precedence
Polygamy in the Historical Context
The Philology of Polygamy
4. Women in Islamic Law of Inheritance
The Qur nic and Interpretive Dichotomy
The Legal and Exegetical Treatment of the Verses on Inheritance
Women, Justice, and Interpretation: The Principle of Awl
Explicitness, Consensus, and Interpretation
Shares and Heirs in the Comparative Context
Shares and Heirs per Blind Survey
Description of Data Collection
Explanation and Interpretation of Data
5. Women in Modern Times
Discussion
Linking Polygamy and Inheritance: Disadvantaging Women by the Numbers
Discussing the Status of Women
Other Contested Perspectives
Bespoke Justice versus Tyranny of Majoritism
Inclusion and Exclusion of Women
Conclusion
Appendix A Timeline of Scholars and Major Figures
Appendix B Glossary of Key Arabic Terms and Their Derivatives
Notes
Bibliography
Index
Illlustrations
Figures
2.1: Islamic Legal Rule: Categorizing Human Acts
4.2: Visualizing Nonspecific Shares for Males vs. Females
Tables
4.1: Examples of Modern Islamic Laws of Inheritance
4.2: The Heirs and Their Shares According to Sunni Islamic Law
4.3: Heirs and Their Shares Based on the Consensus of the Interpreters
4.4: A Combination of Nonspecific Shares for Males vs. Females
4.5: Searching for Gender Bias in Interpretation: Male Heirs
4.6: Searching for Gender Bias in Interpretation: Female Heirs
Preface
It is difficult to write a book dealing with a controversial topic such as women in society, religion, and law. It is even more difficult to discuss the topic of social justice in the context of a historical time frame that spans more than one thousand years. A study with these parameters would involve concepts and assumptions that may or may not be clear to the reader for it is necessarily interdisciplinary. For these reasons, I will use this prelude to define some of the concepts and key words. Given the space constraints, I will use such terms without providing elaborate supporting evidence, and I hope that readers will keep in mind these brief explanations and focus on the specific substance that is the heart of this work. It must be mentioned nonetheless, that I have addressed most of the issues associated with these terms, especially the concepts and principles associated with Islamic law and jurisprudence, in other works ( On the Sources of Islamic Law and Practice s (article), and Verbalizing Meaning (book).
I use the word Arab to refer to a person or a group of people who claim a kinship to a branch of the Semitic people and whose founding father is Ishmael. As such, and in terms of religion, an Arab could be Muslim, Christian, Copt, or even a Jew. A Jew is similarly defined; hence, she or he is a person who is linked to Abraham through Isaac and for the purposes of this work, I exclude Jewishness as an ethnicity. A Semitic person therefore could be Arab, Hebrew, Assyrian, or Ethiopic. The Semitic religions consist primarily of Judaism, Christianity, and Islam, for they were founded by Semites, although not all the adherents to these religions today are so.
Throughout the text, I sometimes make generalizations about Muslims and Muslims beliefs and practices. To me, a Muslim person is one who adheres to (or one born to Muslim parents and who does not deny) the common beliefs and practices of Islam generally anchored by the two categories known as the articles of faith and pillars of Islam. A Muslim community consists of individuals who collectively adhere to and share these common beliefs and practices. Today, a typical Muslim is a person who adheres to the teachings of Islam as understood, explained, and canonized by the scholarship of the major Islamic schools of thought. I understand Islamic schools of thought ( madh hib ) to be the major theological, jurisprudential, and legal tendencies that were founded by renowned religious authorities such as Ja far al- diq, Ab an fah, M lik, Ibn anbal, and al-Sh fi (hence, the Ja far , anaf , M lik , anbal , and Sh fi schools). Sufism (or Sufiism) however, refers to a plethora of mystical tendencies all of which share the belief that knowing God is possible through spiritual experiences that are guided by a knower ( rif ). Sufism is not a distinct school of jurisprudence and theology; rather, a Sufi adheres to one of the established schools of thought that is prevalent in his or her community.
Islam is the name of the religion preached and implemented by the Prophet Muhammad and preserved by his followers in consistent, albeit varying systems of beliefs and practices. The word itself is a derivative ( ma dar ; verbal noun) of the Arabic root that means, among other things, to submit, to resign, or to surrender oneself.
Since this work relies primarily on Islamic literature, I use some key religious words as defined by Muslim scholars with the understanding that the same words may mean different things in other Semitic traditions. For instance, the word Prophet refers to a person selected by the deity to lead a tribe or a clan to which he belongs. A Messenger on the other hand, is a person the deity selects to lead the larger human community. Generally, Messengers are backed by a divine scripture. As such, Muslim scholars see all Messengers to be Prophets, but the reverse is not true. Some Muslim scholars contend that God has sent as many as 125,000 Prophets but as few as five (some say twenty-five) Messengers.
The adjective Islamic is used to refer to inanimate objects, concepts, or behaviors that are inspired by Islam. For instance, we say Islamic art, Islamic cities, Islamic thought, and Islamic civilization. But we say a Muslim (person) and a Muslim community, which consists of individuals who are Muslim. The Islamic world is thus used to refer to the community influenced by Islam even if there is in its midst non-Muslim individuals or minorities (hence the Islamic civilization). The Muslim world on the other hand, refers only to the communities of Muslims. In other words, even if a group of Muslims is found in a non-Muslim country, they could be considered part of the Muslim world. Similarly, a Christian group of people living within a predominantly Muslim country is part of the Islamic world.
Islamic law is the corpus of legal rulings and determinations that are inspired by or based on Islamic teachings. I use Islamic law as the quality of positive law that a modern state can directly enforce. Although it may be used by some Western scholars, I do not use the phrase Muslim law because it may imply that such a law was never influenced by outside traditions. I use Qur nic law to refer to the legal rulings that are explicitly stated in the Qur n and that did not require extensive interpretive efforts to formulate them.
The phrase legal rulings ( a k m ) refers to the pronouncements of the law regarding specific cases. The legal rules ( qaw id ) on the other hand, are the five judgments; as such, they are finite and they are the domain of the jurist not the faq h . The legal proofs ( adillah ) are the explicit and implicit traditions found in the sources of law (Qur n and the Sunnah) that are used by Muslim jurists to link the legal rulings to the revelations. The legal justification or legal purpose ( illah ) refers to the reason behind any given proscription or obligation. Since the Qur n did not always identify the justifying reason behind prohibiting or requiring (obligation) something, it was left to jurists ( mujtahid ; pl. mujtahid n ) to identify the legal justification and once discovered, it was used to extend the legal rule, by way of analogy ( qiy s ), to cover cases not addressed in the earlier sources. For example, and given the topic of this work, establishing justice is seen as the legal purpose of inheritance and polygyny laws. During the formative period of Islamic law, analogy was the primary tool of ijtih d which is the exertion of maximum efforts in determining legal rules, legal rulings, legal proofs, and/or legal justifications.
The shar ah is the a