Women’s Economic Rights: A Strategy Paper

Euripides, 431 BC, wrote about the enduring and indestructible nexus between land and identity; he stated, “There is no greater sorrow on earth than the loss of one’s native land […]”. For displaced people and refugees who have been victims of the ravages of war, the sorrow is enormous especially because regaining access to or ownership of land is proved difficult. For war-torn women, loss of land and property is more profound.

Women are pawns of both war as well as peace. Their rights in, access to, and control over land, housing, and other property continue to be limited all over the world. Male-dominated societies, gender stereotypical attitude and gender-biased legislations are already impediments in the way of women attaining equal property rights. The situation is worse in post-conflict societies.

The position of women with regard to land and property ownership is weakened by both conflicts and the ensuing reconstruction process in societies where their access to land and property is already precarious. The imbalance in power relations between men and women is deepened throughout the conflict and more often than not even continues during the reconstruction process.

How a post-conflict country addresses and deals with housing, land and property issues within its jurisdiction in particular can determine the extent of peace that shall prevail and the amount of restorative justice that will be enshrined within its legal and political frameworks.

This paper examines the significance of property rights for women. It also provides for an assessment of the nature of women‟s property rights in places that have been subjected to conflict, and points out exemplary case-studies of gendered rights to land under different types of post-conflict situations. A number of a policy and programmatic recommendations are provided in the paper for improving gender equity with regard to economic rights in post-conflict regions.

Women’s Economic Rights: A Strategy Paper

Distinction between Shari’ah and Fiqh

Distinction between Shari’ah and Fiqh

The underlying idea in Ziba’s thesis is the main distinction in Islamic tradition between Shari‘ah and fiqh.

The distinction is important as it can enable organizations to recognize that the lack of gendered citizenship rights and the discriminatory practices that some Muslim women confront are not necessarily derived from the core message of Islam’s sacred texts, but rather to the interpretation given to those texts by traditional political and religious institutions.

Indeed, Shari’ah is “the totality of God’s will as revealed to the Prophet Muhammad”—thus essentially an enduring set of guideline. Fiqh, however, is the process of human endeavour to “discern and extract legal rulings from the sacred sources of Islam,” which the author argues has often been conflated with Shari’ah even if it is culturally derived. This distinction also elucidates a tendency in Muslim discourse for fiqh to be equated with Shari’ah, often with the ideological intent of passing fiqh as divine and infallible,
when instead it is a product of patriarchal, man-made interpretations situated at different historical moments.

How and why the distinction between Shariah and Fiqh is important to activists and lawyers?

The recognition and understanding of the distinction between Shari‘ah and fiqh is crucial to
strengthening the arguments of committed activists who are trying to respond to the conservative view that fiqh is an immutable and absolute reflection of religious principles as articulated in the core Islamic texts. This knowledge can provide activists with the informational tools to produce counter-narratives to patriarchal and discriminatory discourses on women’s roles and rights, through contextualizing those discourses within the historical moments during which religious and political institutions defined Islamic
jurisprudence.

Through re-discovering Islamic jurisprudential history of interpretation and development of Islamic sources, activists can better articulate how inequalities embedded in fiqh are not manifestations of divine will but rather human constructions, informed by the social and psychological realities of early Islamic authors. In this new light, activists could demystify both the power games conducted in a religious language, and the instrumental use of religion to justify autocratic rules and patriarchal culture.

This essay can be further interpreted as a call to activists to educate one another on the discursive conflation of Shari’ah and fiqh, and to deconstruct this false link in an effort to argue for policy changes.

What makes an interpretation of law legitimate and authoritative?

Activists can further explore questions of legitimacy and authority in Islamic jurisprudence and thus can challenge the notion that the interpretations of state and local religious authorities are absolute truths, and instead position them as historical constructions. This argument could even be made without evoking the subject of women’s rights and so avoiding unnecessary backlash. The answers to fundamental questions, such as “When is power exercised legitimately?, Who can exercise it? And when is resistance against power legitimate and necessary?”, may also generate greater civic engagement.

FI ACADEMIC ANALYSIS

Tools for Lawyers, Policy-Makers and Activists

Academic Analysis of: Mir-Hosseini, Ziba. “Muslim Women’s Quest for Equality: Between Islamic Law and Feminism.” Critical Inquiry vol. 32, no. 4 (Summer 2006): 629-645

By: Melissa Sions, Francesca Spidalieri, Natasha Latiff and Helena Zeweri
The views expressed are not those of the authors above. This is an academic analysis of this particular
article.

Femin Ijtihad

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