In the seventh century, Muhammad created the concept of the umma, or ‘community of believers’. There was nothing familiar about this in the minds of his contemporaries, deeply rooted in their tribal allegiances. He had to transfer the believers’ allegiance from the tribe, a biological group with strong totemic overtones, to the umma, a sophisticated ideological group based on religious belief.21 Islam transformed a group of individuals into a community of believers. This community is defined by characteristics that determine the relations of the individuals within the umma both with each other and with non-believers:
‘In its internal aspect the umma consists of the totality of individuals bound to one another by ties, not of kinship or race, but of religion, in that all its members profess their belief in the one God, Allah, and in the mission of his prophet, Muhammad. Before God and in relation to Him, all are equal without distinction of race . . . In its external aspect, the umma is sharply differentiated from all other social organizations. Its duty is to bear witness to Allah in the relations of its members to one another and with all mankind. They form a single indivisible organization, charged to uphold the true faith, to instruct men in the ways of God, to persuade them to the good and to dissuade them from evil by word and deed.’22
One of the devices the Prophet used to implement the umma was the creation of the institution of the Muslim family, which was quite unlike any existing sexual unions.23 Its distinguishing feature was its strictly defined monolithic structure.
Because of the novelty of the family structure in Muhammad’s revolutionary social order, he had to codify its regulations in detail. Sex is one of the instincts whose satisfaction was regulated at length by religious law during the first years of Islam. The link in the Muslim mind between sexuality and the shari’a has shaped the legal and ideological history of the Muslim family structure24 and consequently of relations between the sexes. One of the most enduring characteristics of this history is that the family structure is assumed to be unchangeable, for it is considered divine.
Controversy has raged throughout this century between traditionalists who claim that Islam prohibits any change in sex roles, and modernists who claim that Islam allows for the liberation of women, the desegregation of society, and equality between the sexes. But both factions agree on one thing: Islam should remain the sacred basis of society. In this book I want to demonstrate that there is a fundamental contradiction between Islam as interpreted in official policy and equality between the sexes. Sexual equality violates Islam’s premiss, actualized in its laws, that heterosexual love is dangerous to Allah’s order. Muslim marriage is based on male dominance. The desegregation of the sexes violates Islam’s ideology on women’s position in the social order: that women should be under the authority of fathers, brothers, or husbands. Since women are considered by Allah to be a destructive element, they are to be spatially confined and excluded from matters other than those of the family. Female access to non-domestic space is put under the control of males.
Paradoxically, and contrary to what is commonly assumed, Islam does not advance the thesis of women’s inherent inferiority. Quite the contrary, it affirms the potential equality between the sexes. The existing inequality does not rest on an ideological or biological theory of women’s inferiority, but is the outcome of specific social institutions designed to restrain her power: namely, segregation and legal subordination in the family structure. Nor have these institutions generated a systematic and convincing ideology of women’s inferiority. Indeed, it was not difficult for the male-initiated and male-led feminist movement to affirm the need for women’s emancipation, since traditional Islam recognizes equality of potential. The democratic glorification of the human individual, regardless of sex, race, or status, is the kernel of the Muslim message.
In Western culture, sexual inequality is based on belief in women’s biological inferiority. This explains some aspects of Western women’s liberation movements, such as that they are almost always led by women, that their effect is often very superficial, and that they have not yet succeeded in significantly changing the male-female dynamics in that culture. In Islam there is no such belief in female inferiority. On the contrary, the whole system is based on the assumption that women are powerful and dangerous beings. All sexual institutions (polygamy, repudiation, sexual segregation, etc.) can be perceived as a strategy for containing their power.
This belief in women’s potence is likely to give the evolution of the relationship between men and women in Muslim settings a pattern entirely different from the Western one. For example, if there are any changes in the sex status and relations, they will tend to be more radical than in the West and will necessarily generate more tension, more conflict, more anxiety, and more aggression. While the women’s liberation movement in the West focuses on women and their claim for equality with men, in Muslim countries it would tend to focus on the mode of relatedness between the sexes and thus would probably be led by men and women alike. Because men can see how the oppression of women works against men, women’s liberation would assume the character of a generational rather than sexual conflict. This could already be seen in the opposition between young nationalists and old traditionalists at the beginning of the century, and currently it can be seen in the conflict between parents and children over the dying institution of arranged marriage.
At stake in Muslim society is not the emancipation of women (if that means only equality with men), but the fate of the heterosexual unit. Men and women were and still are socialized to perceive each other as enemies. The desegregation of social life makes them realize that besides sex, they can also give each other friendship and love. Muslim ideology, which views men and women as enemies, tries to separate the two, and empowers men with institutionalized means to oppress women. But whereas fifty years ago there was coherence between Muslim ideology and Muslim reality as embodied in the family system, now there is a wide discrepancy between that ideology and the reality that it pretends to explain. This book explores many aspects of that discrepancy and describes the sui generis character of male-female dynamics in Morocco, one of the most striking mixtures of modernity and Muslim tradition.
The umma is a simultaneously social and religious group, and the problem of the relation between secular and divine power inevitably arises. Islam solves it by unequivocally subordinating the secular to the religious authority and by denying the secular authority the right to legislate.25 H.A.R. Gibb noted:
‘The head of the umma is Allah, and Allah alone. His rule is immediate and his commands, as revealed in Muhammad, embody the Law and Constitution of the umma. Since God is himself the Sole Legislator, there can be no room in Islamic political theory for legislation or legislative powers, whether enjoyed by a temporal ruler or by any kind of assembly. There can be no sovereign state, in the sense that the state has the right to enact its own law, though it may have some freedom in determining its constitutional structure. The law precedes the state, both logically and in terms of time, and the state exists for the sole purpose of maintaining and enforcing the law.’26
In a word, the Muslim’s allegiance is not to a secular power, be it the state or its legislators, but to the shari’a, which transcends both humanity and temporality. The fact that God is the legislator gives the legal system a specific configuration. First, it denies the existence of human legislation: ‘Strictly speaking, Islamic theory does not recognize the possibility of human legislation and that which the human rules must make regulations for carrying the divine law into effect.’27 Second, it asserts the inalterability of the law and its eternal hold on human action: ‘The shari’a . . . is universally accepted as the Law of God. God, at any rate so far as human experience of him may presume to go, is unchanging and to a pious mind this may appear to imply that his law is also unchangeable.’28 Third, it extends the scope of the law to matters which usually belong to other spheres: ‘Law, then, in any sense in which a Western lawyer will recognize the term, is but part o
f the whole Islamic system; or rather it is not even a part but one of several inextricably combined elements thereof. Shari’a, the Islamic term which is commonly rendered in English by ‘Law’, is rather “the whole duty of man”, moral and pastoral theology and ethics, high spiritual aspirations and the detailed ritualistic and formal observance which to some minds is a vehicle for such aspirations and to others a substitute for it, all aspects of law: public and private hygiene and even courtesy and good manners are all part and parcel of the shari’a.’29
Is it correct to say, then, that the Muslim world did not develop a modern legal system in the Western sense of the word? Are the laws governing public and private actions of Muslims today the same laws sketched by Muhammad? Of course not. The shari’a had to confront the daily realities of the increasingly numerous and culturally diverse members of the umma. Schools of law were gradually created and specialists of law appeared. They endeavoured to extrapolate and interpret the divine principles in order to meet the earthly needs of the believer in his day-to-day life.
The result was a gradual liberation of some subjects from the hold of religious law. Joseph Schacht distinguishes two kinds of legal subject matter in Islamic law.30 First, subject matter upon which the shari’a failed to maintain its hold: penal law, taxation, constitutional law, law of war and law of contracts and obligations. Second, subject matter upon which the hold of the shari’a was uncontested for centuries and in some areas is uncontested even today: purely religious duties, family law (marriage, divorce, maintenance), law of inheritance and law of endowments for religious institutions. These have been, and still are, closely connected with religion and are therefore still ruled by the shari’a.
Interference by the state in any matter seen to be within the domain of the shari’a presupposes acceptance of the Western idea of sovereign secular power. Schacht writes: ‘Whereas a traditional Muslim ruler must, by definition, remain the servant of the Sacred Law of Islam, a modern government, and particularly a parliament with the modern idea of sovereignty behind it, can constitute itself its master.’31 Even though impregnated with the Western concept of sovereign secular power, the Muslim umma, through the traditionalist supporters of the sovereignty of the shari’a, strongly resisted the intervention of modern legislators in family law.
Historical Interests Behind Modern Legislation
Modern legislation in the Muslim world did not spring from any new ideological conception of the individual and society, as had been the case in Muhammad’s seventh-century revolutionary Muslim order. Modern legislation was initiated and carried out by the colonial powers32 and after independence was continued by the independent nation states. In both cases, the interests of the individual in general and of women in particular were secondary if not irrelevant compared with the interests of the powers involved.
The colonial powers were motivated to intervene in Muslim legislation not by idealistic concern for the natives, but by their own economic interests. This was the case of the Anglo-Muhammadan Law in India from 1772 onward and the Droit Musulman in Algeria from 1830 onward.
The psychological result of the foreign powers’ intervention in Muslim legislation was to transform the shari’a into a symbol of Muslim identity and the integrity of the umma. Modern changes were identified as the enemy’s subtle tools for carrying out the destruction of Islam.
When the Muslim states became independent, modern legislation was not initiated in the interests of the masses. The new laws were closely connected with the battle between traditional law practitioners and modernists, who were mostly lawyers in the Western sense of the word.33 It was not only a battle between two different conceptions of law, but also a clash of interests between two groups of professionals. The new laws forced the traditional ‘lawyers’ to give up some of their power, and their profits, to the young modernist lawyers.
The Moroccan nationalist movement never made the transition from an independence movement to a nation-building movement. After having ‘driven the foreigners out’, the nationalists proved unable to transform their ideology and political apparatus into an instrument for social change. According to the Moroccan historian Abdallah Laroui, the creativity of the nationalist movement as a producer of ideas for change died out years before independence. He buried it in 1930–32.34 Nor did any other group among those that played important roles from the mid-fifties to the mid-seventies offer a coherent set of solutions to the country’s problems.
The main feature of post-independence policy seems to be empiricism, ad hoc decision-making, rather than the subordination of decisions to a long-term programme of action.35 The immediate interests of the independent nation states were the determining factors motivating the legislators. Their inability to generate a genuine modern ideology made family legislation directly dependent on traditional ideologies and contemporary contingencies, whence its inconsistency.36
The absence of a genuine modern ideology strengthened the hold of Islam as the only coherent ideology that masses and rulers could refer to. It is therefore not surprising that Morocco, like other independent Muslim states, recognized Islam as the ideology of the family in its otherwise Western-inspired Code.
The law of 1957 creating the commission charged with the task of writing a Muslim code was justified thus: ‘Considering that the Kingdom of Morocco is going through a period characterized by deep changes in all matters and especially in legislative matters; considering that Muslim law constitutes an eminently delicate matter susceptible to many interpretations; considering the absolute necessity, therefore, of gathering the rules of this law into a code so as to facilitate its teaching as well as its application . . . we have decided on the creation of a commission entrusted with the task of elaborating the Muslim code of personal status.’37
The Code du Statut Personnel stipulates that in all cases that cannot be resolved by reference to the Code, the source to turn to for guidance is the jurisprudence of the Malekite school.38 The founder of the Malekite school, Imam Malik Ibn Anas, was an Arab who lived in Medina and was a judge in the eighth century. In two chapters of his Muwatta, one on marriage, the other on divorce, he spelled out the basis for the institution of the family. There is more than an inspirational similarity between Malik’s Muwatta and the Moroccan Code du Statut Personnel. The idea prevailing in Malik’s time that sexuality is a religious matter to be regulated by divine laws seems to be one of the concepts modern legislators did not question at all.
The seventh-century concept of sexuality, as embodied in the modern family laws, conflicts dramatically with the sexual equality and desegregation fostered by modernization. In the first part of this book I want to explore, through early Muslim sources, the Muslim ideology of the sexes as revealed by the institution of the family. In the second part, I will analyse, through my data and other sources of information on the present situation, the modernizing trend as embodied in women’s gradual acquisition of the right to be educated and to compete for jobs. I will look especially closely at the effects of modernization on male-female interaction both inside and outside the family.
PART ONE
The Traditional Muslim View of Women and Their Place in the Social Order
1
The Muslim Concept of Active Female Sexuality
The Function of Instincts
The Christian concept of the individual as tragically torn between two poles – good and evil, flesh and spirit, instinct and reason – is very different from the Muslim concept. Islam has a more sophisticated theory of the instincts, more akin to the Freudian concept of the libido. It views the raw instincts as energy. The energy of instincts is pure in the sense that it has no connotation of good or bad. The question of good and bad arises only when the social destiny of men is considered. The individual cannot survive except within a social order. Any social order has a set of laws. The set of laws decides which uses of the instincts are good or bad. It is the use made of the instincts, not the instincts themselves, that is benefic
ial or harmful to the social order. Therefore, in the Muslim order it is not necessary for the individual to eradicate his instincts or to control them for the sake of control itself, but he must use them according to the demands of religious law.
When Muhammad forbids or censures certain human activities, or urges their omission, he does not want them to be neglected altogether, nor does he want them to be completely eradicated, or the powers from which they result to remain altogether unused. He wants those powers to be employed as much as possible for the right aims. Every intention should thus eventually become the right one and the direction of all human activities one and the same.1
Aggression and sexual desire, for example, if harnessed in the right direction, serve the purposes of the Muslim order; if suppressed or used wrongly, they can destroy that very order:
Muhammad did not censure wrathfulness with the intention of eradicating it as a human quality. If the power of wrathfulness were no longer to exist in man, he would lose the ability to help the truth to become victorious. There would no longer be holy war or glorification of the word of God. Muhammad censured the wrathfulness that is in the service of Satan and reprehensible purposes, but the wrathfulness that is one in God and in the service of God deserves praise.2
. . . Likewise when he censures the desires, he does not want them to be abolished altogether, for a complete abolition of concupiscence in a person would make him defective and inferior. He wants the desire to be used for permissible purposes to serve the public interests, so that man becomes an active servant of God who willingly obeys the divine commands.3
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