Summary of Books on Fikih on Guardianship: Rereading the Right of Guardianship for Protection of Women from Forced Marriage and Child Marriage

Exposers of the Dark Current:

Exploring the Works of Muslim Intellectuals in Realizing Justice for Women

by Nur Hayati Aida

 

The world we live in now is one in which society still considers one sex as superior to the other. Nearly all arrangements in society are constructed from a male perspective, so it is not surprising that what is produced is a set of rules that tend to be detrimental to women and put them in second place. One factor that reinforces the imbalance in the relations between males and females is (the interpretation of) religion. Whether we realize it or not, interpretation of religion (and its texts) contributes to the perpetuation of practices of injustice toward females.

Yet in the midst of this patriarchal mainstream, certain persons have emerged who chose to fight the tide by building a methodology that reinterprets the misogynistic religious texts that have long been deliberately used to legitimize gender-based discrimination.

In the early 19th century, an intellectual who was also a scholar at al-Azhar named Rifa’at al-Thahthawi published a book that analyzed the gender relations between males and females in Islam. This book, entitled al-Mursyid al-Amin li al-Banât wa al-Banîn, addressed the unequal relations between men and women in Egypt at that time. With his deep understanding of religion, Rifa’at al-Thahthawi traced the elements in the classical treasury of Islam that were more friendly toward women. He also actively campaigned for the importance of education. Education and social interaction are the doors for the advancement of women. Without education, the ideal of progress for women would be a dream that is never realized.

With his intellectual capability, Rifa’at al-Thahthawi also built a methodology for interpreting religious texts using a feminist perspective through three basic principles: al-hurriyah (freedom), al-musâwah (equality), and al-hub (love). If these three foundations are used properly in the reading of every text, the interpretation can never lead to oppression of one sex by the other.

A few years later, Muhammad Abduh became prominent. One of Abduh’s intellectual works that can still be enjoyed today is Tafsir al-Manâr. Although ultimately this commentary was completed by his student, Rasyid Ridha, the basis and direction of al-Manar were constructed by Abduh. al-Manâr is a work that addressed the social problems existing at the time the book was written. According to Abduh, the interpretations prevailing at that time were unable to accommodate the problems experienced in the context of modern society. What Abduh did was an effort to engage the Qur’an in continuous dialogue with the current age.

Abduh fervently opposed polygamy because of its great potential to destroy the family, and also because it violates the sharia which function as the protector of positive benefits. This argument was based on the Qur’an, specifically al-Rum:21.

In the middle of the 19th century, there emerged in Egypt a thinker and activist named Qasim Amin. Qasim Amin wrote a book entitled Tahrîr al-Mar’ah. This book created a great controversy, leading to various responses, both positive and negative. In the book, Qasim Amin wrote about women and their private rights in connection with the family in Egypt. The topics that received the most public attention were polygamy and divorce.

At the same time, Qasim Amin also harshly criticized the fikih scholars who took the position that talak could be imposed without witnesses and even if done as a joke. Qasim Amin placed divorce on the same level as marriage. Like marriage, divorce is an action of sharia that leads to the loss of certain rights and the emergence of other rights, such as sustenance and inheritance. Therefore, divorce also requires witnesses.

As well as in Egypt, an intellectual also emerged in Tunisia who was greatly concerned with humanitarian issues, and especially women, at the end of the 19th century. This was Thahir al-Haddad, who constructed a concept of Islamic ethics using three instruments: al hurriyah (freedom), al-‘adâlah (justice), and al-musâwah (equality). These three instruments were used as the spirit in reading texts in the creation of sharia. Sharia grants freedom to individuals and the public based on a basic human right – the right to live free from domination by any type of person. According to Thahir al-Haddad, Islamic sharia must be a pioneer for change in society to emerge from backwardness toward progress. The greatest challenge faced by the community in the world of Islam is the excessive power of religious institutions in controlling family life.

Through his book Imra’atunâ fî al-Syarî’ah wa al-Mujtama’, Thahir al-Haddad voiced his social critique because Tunisian society placed women behind religious symbols created by the ulama based on religious knowledge as the center of truth.

Although his life ended in exile, Thahir al-Haddad’s concepts and ideas live on. Many years later, his name is used for schools in Tunisia and his photograph is displayed in government offices.

 

Indonesian Scholar/Thinkers who Spoke out for Justice for Women

 

Islam arose in a feudal social structure centered on the power of clans (bani), relying on patriarchy and physical force to conquer a harsh physical environment. Islam actively combined with the local culture through the Prophet Muhammad, and responded to the characteristic events and social traditions of the Middle East. The products of law, particularly the fikih, were constructed by the ulama of the early mazhabs based on the context of the region where they lived and studied, mainly in the Middle East. One context worthy of mention relates to the position of those who are weak or are made weak, such as women, children, widows and the poor.

Indonesia is obviously not the same as the Middle East. The two regions are different in terms of culture, geography, land, and social structure. If a nomadic society relies on trade, communities in Indonesia tend to settle in one place and be based on the traditions of an agrarian society. These differences have implications for changes in various religious practices. In the classical works of fikih, for example, istinja’ or cleansing one’s body after defecating is done using a stone. This practice of using stones for personal cleansing may make sense in a sandy desert region, but certainly does not apply to the context of Indonesia with its water-based culture.

These differences, as well as certain social issues specific to Indonesia, have forced Indonesian scholars and thinkers to reconstruct and reanalyze the interpretations of religion and the law of fikih. They have tried to provide a context to the rules of fikih which were taken from the locale where Islam first emerged, and particularly the more sensitive issues that are rarely addressed such as women, children, and minorities.

We can now mention the name of Husein Muhammad, a male ulama who has been most vocal in speaking out for the rights of women. His works and writings record how the (interpretations of) religion that have long been used as justifications to perpetuate discrimination can in fact be used as a means of resistance and a counter narrative to the negative views of women. Kiai Husein, with his mastery of the literature and the academic realm, has traced the classical texts of Islam, and proclaimed the news of ideas about the equality of humans, whatever their sex. Islam, according to Kiai Husein, is a religion that upholds the principle of equality. This is clearly illustrated in the confession of tauhid, belief in the oneness of God, as a confirmation that there is nothing and no one that deserves to be worshipped and elevated in rank by humans other than Allah. And humans, both males and females, have the same position and opportunity to engage in pious works. Men and women also have the same worth in the eyes of God. Those who are more favored before God are those who are pious and devoted, whoever they are, male or female.

As well as Kiai Husein, there are several other figures from the world of the pesantren who, while not specifically known as feminist, speak out on issues of benefit in society which are based on development of the law of fikih. No doubt fresh in our minds are the ideas of social fikih as conveyed by KH. Dr. (HC) Sahal Mahfudz. Social fikih is a form of religious accountability to respond to the needs and problems of society. More than that, social fikih is also a form of concern from Kiai Sahal, as he is known, regarding the assumption that fikih is a kind of transcendent truth. The general public has a mistaken perception that all truth is contained in (the books of) fikih. To produce social fikih, Kiai Sahal uses two methods: qawlîy, using an approach of qawâid fiqhiyah, and manhajîy, the approach of maqâshid al syari’ah, whereby the text and the context are brought together.

Kiai Sahal places great attention on the many cases of child marriage. He is of the opinion that by marrying off a daughter who is still a child, the parents have violated their obligation as parents to provide a decent livelihood and education for their child.

In the realm of the Religious Courts, Dr. Andi Syamsu Alam can be considered a pioneer in institutional management. He is very active in building effective working methods and a modern judicial system, and also encourages judges to pursue further judicial education.

Dr. Andi’s concepts in verdicts on family law, which should serve as a reference for religious court judges, include rejecting dispensations for a lower age of marriage, and granting inheritance rights to adopted children. Unfortunately, the first of these concepts is often not used as material in the consideration of verdicts. According to Dr. Andi, this is because judges’ thinking is stagnated, in that judges still interpret the Marriage Law as accommodating child marriage. In fact, the Marriage Law, despite its many loopholes that need to be criticized, was in fact an initiative by certain progressive figures and ulama to raise the age of marriage and to protect women and children from discriminatory practices. The minimum age for marriage for females, which was set at 16 years when the Marriage Law was enacted in 1974, was the result of fierce negotiation with conservative groups.

Two figures who were involved in the preparation and formulation of the Marriage Law are Prof. Dr. Hazairin Harahap and Teungku HM. Hasbi Ash-Shiddiqiy. Teungku Hasbi is one of several persons who have offered the idea of Indonesian fikih. According to Teungku Hasbi, the ‘urf (local wisdom) of Indonesia should be used as the basis for creating a special fikih characteristic of Indonesia, considering the differences in culture, habits and social structure between Indonesia and Middle East, the region where Islam was first sent down and which was used as the basis for creating the laws of fikih. This idea has received many responses from various groups and individuals, some of whom say there is no need for an Indonesia fikih.

Teungku Hasbi’s interpretations include a prohibition on polygamy, because the requirements for allowing polygamy cannot possibly be fulfilled. Furthermore, the narrative constructed by verse 3 of al-Nisa’ is a prohibition, not a recommendation. Polygamy, according to Teungku Hasbi, is only allowed in emergency circumstances, and emergency doors must normally be kept shut.

Meanwhile, Prof. Dr. Hazairin Harahap was Indonesia’s first doctor in traditional law following independence. He served as Minister of the Interior in the cabinets of Ali Sastroamidjojo and Wongsonegoro. After retiring from the world of politics, he entered the world of education as a professor at the University of Indonesia.

Like Teungku Hasbi, Hazairin also strove for the concept of an Indonesian fikih by reconstructing ‘urf and istihsân in ushul fikih. He severely criticized the practice of marriage in childhood which bases its permissibility on the concept of biological maturity (baligh). Biological maturity cannot be used as a justification for marriage in childhood. A person must have achieved the level of baligh rusyd (maturity in thought and action) as a requirement for permissibility of marriage. In addition, his ideas relating to receptio a contrario also contributed to the creation of the Marriage Law.

The figures mentioned above are just a few of those who have chosen the lonely path toward realizing justice. They have chosen the path less taken: intellectual work, a kind of work that requires great discipline in exploring both text and context, as these two aspects are interrelated and constantly pulling on one another. A text does not appear in a vacuum; context cannot stand firm without the support of text. And it is these lonely works that can expose the dark current of patriarchalism that has for so long prevented thinking and acting to achieve justice for women. []

0 replies

Leave a Reply

Want to join the discussion?
Feel free to contribute!

Leave a Reply

Your email address will not be published.