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BARAZA! 1 - Trends in Islamic Family Law Reform
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baraza11.jpgWelcome to the first issues of BARAZA!, Sisters in Islam biannual issues bulletin. This bulletin brings together articles on contemporary matters affecting Muslims today, with a focus on women's rights in Islam and an update of SIS activities.

Why BARAZA!? According to Hans Wehr's Dictionary of Modern Written Arabic, baraza means "to step out, to come out, to stand out, to be prominent, to expose, to show, to excel, to surpass, to compete, to publish, to present." In the early centuries of Islam, a baraza woman is a woman who does not hide her face and does not lower her head; a woman of sound judgment, known for her 'aql (reasoning). A baraza woman is one who is seen by people and who receives visitors at home.

For us in Sisters in Islam, the quintessential baraza woman is Sukayna bint Hussein, the great-granddaughter of Prophet Muhammad (pbuh) and granddaughter of the Prophet's beloved daughter Fatimah and fourth Caliph of Islam Ali Abu Talib. Biographies of early women in Islam celebrated Sukayna's independence, intelligence, beauty and wit. She debated with powerful men about political and social issues of the day, and spurned their offers of marriage. She pursued her literary interests, and hosted poets and literary figures in her home. She was married several times and was famed for her marriage contracts, which stated among other things that she would not obey her husband, she had total control of her life and that her husband shall not commit polygamy. If her husband were to renege on any of the conditions, she stipulated that he would be compelled to divorce her at her wish.

Sukayna is a figure forgotten in the Muslim tradition. The Muslim woman today is seen by the world as oppressed, discriminated against, backward and destined to suffer in silence. In the name of her religion and shariah law, she is viewed as inferior to men. And God forbid if she is strong, independent, outspoken and stands up for her rights, for this would condemn her as Westernised and unIslamic.

In the course of our work, Sisters in Islam has found that the realities of women's lives today conflict with society's image of what the ideal Muslim women should be. In the 21st century, women's groups in the Muslim world are at the forefront of challenges to traditional religious authorities and Islamist political movements; their use of Islam to justify women's subordination; and most perniciously, using the fear of God to silence dissenting voices.

In this inaugural issue of BARAZA!, SIS has chosen to focus on the reformation of Islamic Family Law to reflect the justice of Islam. If justice is the indisputable objective of shariah, shouldn't this principle be reflected in laws that regulate the relationship between, and the rights of, a husband and a wife?

The classical juristic framework of marriage in Islam was influenced by the logic of a contract of sale. In exchange for a dower, a woman comes under her husband's authority. At the core of this marriage contract is the wife's submission (tamkin), defined as unhampered sexual availability, which is regarded as a man's right and a woman's duty, in exchange for maintenance (nafaqa), defined as shelter, food and clothing, which is a woman's right and a man's duty.

Given the realities and complexities of our lives today, such a conception of marriage is no longer sustainable. The 20th century saw the slow reform of personal status laws in many parts of the Muslim world to deal with the complaints of injustice and suffering of women. Common approaches have focused on adding conditions to the marriage contract to protect women's rights, and to reform substantive provisions in areas such as polygamy and divorce to minimise the discrimination and hardships women face.

But this approach to law reform has not been satisfactory. It remains a patchwork or band-aid approach to redress a flawed contract based on an assumption that has little bearing on today's realities. In this age of globalisation and wide access to education, the traditional male provider and subservient female homemaker are no longer models of Muslim marriage. The dynamics of marital relations in the modern world have changed as more women outperform men academically, as more women work and become financially independent and contribute to the family expenses.

Given these changing realities, the legal logic that produced the law governing the personal status of Muslims will need to change. This is not to say that the traditional Islamic family law and its assumptions are wrong. The classical jurists were guided by the circumstances of their times. In a different time and a different reality governing the lives of men and women today, the legal framework for marital relations must necessarily change.

In a modern world dominated by an ethical paradigm of justice, equality, freedom and dignity, the Qur'an provides a wealth of guiding principles to develop a new jurisprudence on marriage based on the principles of equality and justice. Morocco recently reformed its family law to achieve this.

So have Tunisia and Turkey. Indonesia has just drafted a new model law - a new Islamic Family Law grounded on the several Qur'anic verses of equality before the eyes of God; a relationship of mutual protection between men and women (at-Taubah 9:71), of men and women being each other's garment (al-Baqarah 2:187) providing a strong Islamic framework for this reform effort.

This imperative, in no way heretical, will allow Muslims to lead their lives according to the teachings of their faith, within the context of their changing realities.

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