Islam, Gender, and Formal Shari’a in Indonesia

Lily Zakiyah Munir


“Women have always been the best friends of religion,
but religion has generally not been a friend of women.”
(Moriz Winternitz, a German indologist)

The above remark is cited by Annemarie Schimmel in her foreword to The Tao of Islam (Murata 1992, vii). Winternitz’ observation is particularly evident when put in the context of Islam, as Schimmel contends that ‘it is certainly easier to look only at the surface … of polygamy and easy divorce and … purdah … than to try to see the more positive sides of Islam.’ We have been exposed with various gender-biased discourses and stereotypes—such as women not having equal rights as men, or women not allowed to take leadership roles in the public, etc.—that negative images of Islam will immediately capture people’s attention than otherwise when talking about Islam and women. Various conferences on women or women’s rights have almost always identified religions, especially Islam, as a source of discrimination and oppression against women, as if it hindered the promotion of gender equality and women’s rights. Is it really the case?
The answer may be and may not be correct. It is correct if Islam is understood from the attitudes and behavior of many Muslims in Muslim societies which, like many societies in the world, are patriarchal. It is not correct if Islam is understood as a set of moral teachings and rituals revealed to bring blessings to the whole universe including women1. God’s mission in creating men and women equally is explicitly mentioned in a number of verses of the Qur’an.2

Socio-historical context of Islamic revelation
To appropriately understand the Qur’an’s treatment of women and gender and, therefore, to appreciate its revolutionary breakthrough for women’s liberation and empowerment, it is important that we observe the socio-cultural and historical context of its revelation. The history of Islam notes that in the advent of Islam, the so-called the jahiliyya (ignorance) period, women in the Arabian peninsula were virtually worthless as human beings. They enjoyed no rights whatsoever and were treated no better than a commodity, to be enslaved or given as present or inherited as a possession. The Qur’an prohibited this practice as depicted in Q.S. al-Nisa’/4:19, “O ye who believe! Ye are forbidden to inherit women against their will, nor should ye treat them with harshness.” In addition to prohibiting men to inherit women, the Qur’an also granted women the right for inheritance, albeit the amount which reflects women’s less responsibility than men’s for family supports.
The Qur’an also mentions that to the Arabs in jahiliya the birth of a baby girl was a shame to them and baby girls were buried alive (Q.S. al-Nahl/16:58-59). Condemning the evil practice of the killing of female children by pre-Islamic Bedouin Arabs, the Qur’an reminds the perpetrators of female infanticide that on the Day of Judgment, when “the female (in fact) buried alive, is questioned for what crime she was killed” (Q.S. al-Takwir/81:8-9), they will have to answer to God for their heinous crime. The Prophet Muhammad shows his defense for the baby girls and greatly improves the status of women by saying that one to whom a daughter is born and who does not bury her alive, does not humiliate her, nor prefers a son to a daughter, will be sent to Allah to paradise. The Prophet also says that hell-fire is prohibited to one who has to go through trials and tribulation due to a daughter and yet does not hate her and behave well to her.
During jahiliya there was no restriction on the number of wives a man could have. Tribal chiefs and leaders had many wives in order to establish familial relationships for political alliances to minimize tribal competition and attacks. There were people who married four, five, six, or even tens of women and asked who could stop them from marrying more than the others. There were instances from pre-Islamic culture of the then trend of men marrying hundreds or tens of women. The Qur’an ended this practice in its verses:
“And if you have reason to fear that you might not act equitably towards orphans, then marry from among (other) women such as are lawful to you—two, or three, or four; but if you have reason to fear that you might not be able to treat them with equal fairness, then (only) one” (Q.S. al-Nisa’/4:3).

Thus, the permission to marry more than one and up to four wives must be seen in this context. It was a drastic reduction of the number of wives one could have. However, this is just one possible justification—there are other justifications related to widowhood and orphans due to wars. These are all contextual justifications and not a universal. When the verse was revealed the Prophet advised those who had more than four wives to opt for the four and divorce the rest. The above verse is explicit in referring to the condition of equal fairness in one’s treatment among the wives, which is hardly possible. Thus it could be inferred that Islam basically did not encourage the marrying of more than one wife. On the contrary, Islam discouraged it, restricted it, and conditionally allows up to four wives in the then prevailing situation.

The Qur’an and Gender Equality
The most revolutionary teaching of the Qur’an, which constitutes the basic nature of sexual equality in Islam, and which undermines the notions of radical differences and hierarchy between the sexes, is related with the origin and nature of human creation. As the Qur’an describes it, man and woman, although biologically different, are ontologically and ethically-morally the same in the sense that both women and men originated in single Self (nafs) , have been endowed with the same natures, and make up two halves of a single pair (Barlas 2002:133). Man and woman are two categories of the human species given the same or equal potential. There are no indications, whatsoever, that women have more or fewer limitations than men. Neither is excluded in the principal purpose of the Qur’an, which is to guide humankind towards recognition of and belief in God’s truths.
Hence, the idea that woman is a secondary creation deriving from the rib of man which is part of the Biblical tradition illustrated in Genesis 2: 18-24 (Lerner 1986: 181) finds no support in the Qur’an. There is no single verse in the Qur’an which states that man and woman were created from different substances, or that woman was created of Man’s rib, or even that woman was created after man, claims which have, for over two millennia, been cited as proof of divine sanction for the subordination of women. According to the Qur’an, all human beings derive from a single source described as “nafs in wahidatin.” In the Qur’an, argues Riffat Hassan (in Barlas 2002: 135), that
“none of the thirty or so passages which describe the creation of humanity … is there any statement which could be interpreted as asserting or suggesting that man was created prior to woman or that woman was created from man. In fact there are some passages which could—from a purely grammatical/linguistic point of view—be interpreted as stating that the first creation (“nafs in wahidatin”) was feminine, not masculine.”

In relation to the absolute, woman is equal to man in all essential rights and duties; God makes no distinction between men and women; they are to be equally rewarded or punished for their deeds. The Qur’an says: “… Never will I suffer to be lost the work of any of you, be he male or female; ye are members, one another …” (Q.S. Ali Imran/3:195); and in the following:
“For Muslim men and women—for believing men and women, for devout men and women, for true men and women, for men and women who are patient and constant, for men and women who humbles themselves, for men and women who give in charity, for men and women who fast (and deny themselves), for men and women who guard their chastity, and for men and women who engage much in Allah’s praise—for them has Allah prepared forgiveness and great reward (Q.S. al-Ahzab/22:35).

Regarding gender relationship in the marriage, a Qur’anic verse that perfectly symbolizes equality and reciprocity is Q.S. al-Baqarah/2:187, i.e. ‘Your wives are a garment to you and you are a garment to them.’ This verse beautifully illustrates the nature of women and men who need, complement, and support each other. Schimmel (in Murata 1992: ix) posits that the term ‘garment,’ according to ancient religious ideas, is a reference to the alter ego of a human being. The garment can function as a substitute for the person, and with a new garment one gains as if it were a new personality. Furthermore, it hides the body, blocks the looking at the private parts, and protects the wearer. Husband and wife are, according to this interpretation, so to speak each other’s ego, a sample of perfect togetherness.

Patriarchal Reading of the Qur’an
If the Qur’an has beautifully granted equality between women and men and has guaranteed a set of women’s rights in various aspects of life, then why does women’s status in Muslim societies remain low? Why are Muslim women viewed as secondary and have to abide by men’s orders? If Islam teaches that both women and men are obligated to perform amar ma’ruf nahi munkar (enjoining what is good and forbidding what is evil) in the public sphere, then why is there segregation, under which women are saddled with domestic responsibilities while men dominate the public domain? If the Qur’an brings the spirit of freedom and justice and brings blessings to the whole universe, then why are women given a lot of restrictions that hamper their freedom and advancement? Why is justice more accessible to men than to women? There are lots more similar critical questions to raise if we ponder about gender and women’s issues from an Islamic perspective.
The answer is, I believe, that there is a big gap between Islamic teachings and their manifestation among Muslim societies. The liberating and emancipating messages of the Qur’an are not easy to understand, let alone be internalized and practiced, particularly when one reads it with an already gender-biased mindset resulting from the patriarchal ideological hegemony prevalent in our culture.
Meanwhile, in spite of its supports for gender equality and equity, the Qur’an, simultaneously does speak of man having a slight edge and social superiority over women. This, as Engineer (1992: 45) contends, must be seen in its proper social context. He says that
“The social structure in the Prophet’s time was not such as to admit of complete sexual equality. One cannot take a purely theological view in such matters. One has to adopt a socio-theological view. Even a revealed scripture comprises both the contextual and the normative. No scripture, in order to be effective, can totally ignore the context.”

A pivotal verse in the Qur’an on gender which is frequently cited as a foundation for justifying gender hierarchies is Q.S. al-Nisa’/4:34. The verse, in classical exegeses, is interpreted as illustrating sexual hierarchy, with women as sexual objects at the service of men. The verse in question, in al-Tabari and al-Baydawi’s reading (Stowasser 1998: 33) says: “Men are in charge of/are guardians of/are superior to/have authority over/women (al-rijalu qawwamuuna ala al-nisa’) because God has endowed one with more/because God has preferred some of them over others (bi-ma faddala Allahu ba’dhuhum ala ba’din) and they support them from their means (wa bi-ma anfaqu min amwalihim). Therefore the righteous women are obedient, guarding in secret that which God has guarded. And for those whom you fear may rebel (nusyuz), admonish them and banish them to separate beds, and beat them. Then if they obey you, seek not a way against them. For God is Exalted, Great.”
The verse legislates men’s authority over their women, conferring on them the right to discipline their women in order to ensure obedience. Nusyuz or rebellion, according to Tabari, refers to female appropriation of superiority over the husband, undue freedom of movement, objection of sexual contact when desired by the husband, and other acts of defiance. Meanwhile, men’s ‘superiority’ over women, according to Baydawi (Stowasser 1998:33) refers to the fact that men have been endowed with ‘a perfect mind, good management skills, and superb strength with which to perform practical work and pious deeds. To men (alone) were allotted the prophethood … and the monopoly in the decision to divorce.’

Historical shari’a
The above quotations are examples of how the Qur’an was read and interpreted with gender biases by classical exegetes and documented in classical books that have remained immutable as a source of Islamic law (shari’a) to the present time. A human product, nevertheless viewed as ‘sacred’ and unchangeable, such work, undeniably has greatly impacted on Muslim societies, exacerbating the already existing patriarchal attitudes. Prophet Muhammad and the Qur’an had initiated the process of transformation into just and egalitarian societies. However, history notes that Islam’s achievement during the Prophet’s period in liberating the oppressed groups particularly women was at stake when Islamic societies fell back into feudalism. Under feudalistic system of the Abbasid dynasty, women’s status was set back to the periphery. Women had no political rights and responsibilities, and the court culture had given rise to sexual objectification of women.
The social context during this period was far more negative to women than that sanctioned during the Prophet Muhammad. The 7th-10th centuries was the period when classical books with classical exegeses, which remain as sources of legal fatwas to the present time, were documented. Muslim law, the shari’a, was codified and the doors of ijtihad (logical reasoning) were closed, as shari’a was considered fully and exhaustively elaborated at that time (An-Na’im 2002). An-Na’im, along with other scholars, claims there has been hardly any change in the basic structure and methodology of shari’a and it has remained immutable over the last thousand years or so. The core content of shari’a has continued to reflect the social, political, economic conditions of the eighth to tenth centuries, thereby more and more out of touch with subsequent development and realities of society and state, especially in the modern context (Schacht 1974: 394-5). The andocentric and misogynist traditions prevailing during the period of the codification have, undoubtedly, been sustained by the shari’a till the present time, producing a face of Islam which is oppressive to, rather than liberating, women. Unless a fundamental methodological change is made in understanding religious texts, Islam will fail to achieve its basic liberating mission (Q.S. al-Hujurat/49:13) and as a blessing to the whole universe (Q.S. al-Anbiya’/21:107).

Methodological debate: a hermeneutic approach
Controversies regarding gender in Islam arise out of different methodologies in approaching and paradigms in viewing the issues. The Qur’an is laden with messages on justice and equality; however, these messages are hardly captured by Muslims. Muslim societies have apparently contributed to the realities of Muslim women’s backward status and their being deprived from basic women’s rights. In response to women’s detrimental situation, the Egyptian theologian and jurist Muhammad Abduh (d. 1905) called for the education of men “in the true meaning of Islam,” which would make them give up all selfishness, material greed, power hunger, and love of tyranny, so that they would begin to deal with their wives in the spirit of love, compassion, equality that the Qur’an enjoins (Muhammad Abduh, n.d.: 117).
Fazlur Rahman (1965) brought into light a new epistemology by taking into consideration the historical sociological contexts when the Islamic traditions were formed. Muslims, he argues in his later book (1982) have yet to resolve ‘basic questions of method and hermeneutics.” No method of Qur’anic exegesis is fully objective as each exegete makes some subjective interpretation which is not necessarily the intent of the text. It is, therefore, crucial to distinguish between the text and its interpretation. A similar view was expressed by Barlas (2002:6), who contends that the Qur’anic texts, like other texts, are polysemic; they are open to variant readings. The Qur’an can be read in multiple modes, patriarchal as well as egalitarian ones. We cannot look to a text alone to explain why people have read it in a particular mode or why they tend to favor one reading of it over another. This is especially true of the Qur’an, as it “has been ripped from its historical, linguistic, literary, and psychological contexts and then been continually recontextualized in various cultures and according to the ideological needs of various actors” (Arkoun 1994: 5).
Wadud (1999: 1-3) identifies three categories by which the Qur’an has been interpreted in terms of woman. First, the so-called ‘traditional,’ uses atomistic methodology which interprets verse by verse from the beginning to the end. Little or no efforts is made to recognize themes and to discuss the relationship of the Qur’an to itself thematically. Most of the exegeses were done by males which means that ‘men and men’s experiences were included while women and women’s experiences were either excluded or interpreted through the male vision, perspective, desire, or needs of woman’ (p. 2).
Second, the reactive method, consists primarily of modern scholars’ reactions to severe handicaps for women which have been attributed to the text. This method, in spite of its concerns for valid issues, lacks a comprehensive analysis of the Qur’an. The third category, which is relatively new, reconsiders the whole method of Qur’anic exegesis with regard to various modern social, moral, economic, and political concerns—including the issues of women. This final method, the hermeneutics, is proposed by contemporary Islamic scholars (Rahman 1982; Wadud 1999; Barlas 2002) to yield a creative synthesis of Qur’anic principles by recognizing the connections between different themes of the Qur’an. This means that in interpreting a certain text, consideration is to be given to three aspects of the text: 1) the context in which the text was revealed, 2) the grammatical composition of the text, and 3) the whole text, i.e. the world-view.
Concerns for the misogynist tradition among Muslim societies were expressed by a prominent Muslim feminist, Fatima Mernissi (1985, 1987), who convincingly argues that neither the Prophet Muhammad nor Allah as a source of the holy law desired anything other than equality between the sexes; but these teachings are reversed in reality. Muslim societies, in general, appear to be more concerned with trying to control women’s bodies and sexuality than with supporting them in achieving their rights. Another Muslim feminist, Riffat Hassan (1996: 25), makes a similar observation. While the Qur’an, because of its protective attitudes toward all oppressed classes, appears to be weighted in many ways in favor of women, many of its women-related teachings have been used in patriarchal Muslim societies against, rather than for, women. She criticizes Muslim scholars for ‘either not speaking of women’s rights at all or are mainly concerned with how a woman’s chastity may be protected.’ Afkhami (1995: 1) shares a similar concern, that for Muslim fundamentalists “every domestic issue is negotiable except women’s rights and their position in society.”
In sum, as argued by al-Durra (in Hadda 1998: 4), religion can be seen as a double-edged sword. On one side, it can bring ‘mercy to the whole universe’ (Q.S. al-Anbiya’/21:107) and to ‘free human beings from any forms of oppression and discrimination …’ (Q.S. al-Hujurat/49:13). However, it can also bring detriments to women when its texts are read in a patriarchal way.

Formal shari’a in Indonesia’s regions: religious symbols and control over women
One of the backslides of the reform movement in Indonesia has been the growing demands for formalization of shari’a. The desire for formal shari’a may be viewed as a proposal indicating the birth of fundamentalism in its political form (Roy: 1994). This phenomenon is always developing extensively, not only at national level through the amendment of Indonesia’s 1945 Constitution, but also at regional level through local regulations. The momentum of weakening national leadership and the general tendency of national disintegration in the past five years has been well utilized by the fundamentalist groups to strive for their religious political agenda.
Pioneered by Nanggroe Aceh Darussalam (NAD) which imposed it formally on Islamic New Year’s Day 1 Muharram 1423, formal shari’a soon became a widespread issue nationwide. Within relatively a short time, over ten districts and provinces are now ready to follow. Along with the spirit of political and economic decentralization toward regional autonomy, these regions demand for institutionalization of shari’a. For women, this growing phenomenon is to be carefully observed. What is actually shari’a? How are women positioned within the system? Will the law system under shari’a be based on classical books with classical exegeses which obviously have shown their discriminatory attitudes against women? For the Indonesian context, how will shari’a deal with conflicts of interest with the existing positive legal system?
When the decentralization package, known as the regional autonomy policy, was issued as an effort to embark on the democratization process, there was a slight hope among Indonesian women. After three decades of the repressive Suharto regime who manipulated women for political purposes, women were optimistic that the reform era would open up the door for women’s equal status and for casting away patriarchy. Women were also hopeful that the new regime would bring the nation out of its multi-dimensional crises primarily affecting them and children.
But these hopes diluted and turned into apathy when the reform era did not show any indication for its leaders to take side on people’s problems, especially women’s. More recently, women were made worried observing the implementation of the regional autonomy process. In West Sumatra, for example, the Bill on Social Ills was issued, containing an article that banned women from going out at night without a guardian. On the basis of eliminating prostitution, women were kept home at night with a hope that by so doing prostitution in West Sumatra would be gone. While sane logic could not accept the fact that prostitution could not take place without men’s participation, the misogynist attitude of male-biased policy makers has taken victim, i.e. set back in women’s struggle for freedom and equal status. This policy was obviously strange because women in West Sumatra, with their matrilineal system, had been actively engaged in public issues and now they were going to be domesticated in the name of shari’a in the regional autonomy system. Only after a long debate was the discriminatory Bill changed by enlisting men to be also involved in the responsibility for uplifting morality.
Proponents of formal shari’a argue that in order to strive out of the various crises Indonesian people are facing, it is essential that shari’a be enforced. For its effective enforcement, shari’a is to be supported by local authorities and local government regulations. As an idealistic and unrealistic movement, these groups envision a complete and totalitarian implementation of Islamic teachings. However, as they put emphasis only on the religion’s formal legalistic aspects, while neglecting other aspects of the religion, their religious proposal appears to be exclusive and not conducive to Indonesia’s pluralistic condition. Furthermore, along with the global demand for the promotion of democracy, pluralism, human rights, civil liberties, and multi-culturalism, the universal mission of Islam in promoting justice, tolerance, and equality including gender equality is hard to be materialized with the rigid formal legalistic approach.
After two years of the imposition of formal shari’a in Aceh, an anthropological study was conducted to document people’s understanding, opinions, and feelings about shari’a. Ordinary people, teachers, students, activists, housewives and intellectuals were interviewed in depth. Interesting enough that most informants viewed formalization of shari’a as a political undertaking by authorities, rather than a religious endeavor to achieve maqasid al-syariah (goal of shari’a), which is welfare for all. Many of the informants felt misled by the formal shari’a as it was not what they expected. They also commented on the governor’s wife who stopped women without head covering in the center of the city and forced them to wear jilbab. Below are some comments from the informants.
“Making regulations on shari’a in Aceh is just like insulting us the Acehnese; as if we did not understand Islam. We have practiced shari’a for centuries without government’s order.”

“I thought by imposing shari’a then those corruptors who have stolen our money would have their hands chopped, or perpetrators of rapes and other violence against humanity would be severely punished with qishas. But it turned out that formal shari’a has been dealing only with women’s chastity and rituals. KKN (corruption, collusion, nepotism) remains prevalent and we small people remain poor.”

“Shari’a is our relationship with God, and we don’t need to be watched by government authorities in its implementation.”

“Shari’a is just the political business of the authority in order to gain people sympathy. And why did the governor’s wife distribute free jilbab? What is the big deal about jilbab? Didn’t she have other important things to do for the welfare of the people?”

Those are just a few comments, but they reflect people’s disappointment. The euphoria on shari’a at the beginning of its institutionalization two years ago had victimized women as well, when sweeping was done to women who wore tight jeans, their jeans were cut open; or those who did not wear head covering, their hair was forcefully cut. The perpetrators could not be identified, and no one claimed to be responsible for that. Women as object of formalistic policies is apparent in the local government regulation regarding women’s dresses. For example, there is a ‘jilbab zone’ area, which is in the radius of the greater mosque Baiturrahman at the heart of the capital city of Banda Aceh. Out of the jilbab zone, the regulation is less rigid; but the social pressure for women to cover up and ‘control their chastity’ has been growing bigger. In the name of shari’a, one as defined by local authorities, women have been imposed with more restrictions and regulations.
The phenomenon of formal shari’a and the ‘Islamic’ (or Arabic?) nuances is immediately captured as one explores around the capital city of Banda Aceh. Strolling along the city roads, one will see changing faces of the streets and buildings. Now, names of streets, shops, buildings, government offices, banks and drugstores ae written in the Arabic-Jawi alphabet, in addition to the Latin one. Quotations from the Qur’an, “And be moderate in thy pace” (Q.S. Luqman/31:19) and “… nor walk in insolence” (Q.S. Luqman/31:18), are displayed on the street signs as a reminder to pedestrians to cross the street carefully, and to motorists in order not to speed up. This is a perfect example of rigid and textual use of Qur’anic texts, which typically signifies a fundamentalist way of thinking.
Meanwhile, what people aspire out of the formal shari’a in Aceh is related to the solution of various cases of violence perpetrated to them such as killing, rapes, looting, and house burning which basically constitute the core problems of people in Aceh, and which apparently has not been well responded to by the current authorities. These acts of violence against humanity are punishable, according to shari’a, by qishas (equal punishment). Hence, the demand for formal shari’a by local people in Aceh should be viewed from the framework of justice, which is the core substance of shari’a, and not from a political framework.

Conclusion
Along the paper I have argued extensively about the gap between the liberating and emancipating teachings of Islam on gender equality and equity and their manifestation among Muslim societies. This gap exists as a result of the patriarchal methodology in reading Qur’anic texts and therefore produces patriarchal discourse on gender and Islam. The Qur’an, despite its numerous messages on gender equality and equity, does speak of man’s superiority over woman, which has aroused controversies on the topic. To resolve the controversies, contemporary Islamic scholars propose a relatively new methodology in interpreting the text, the hermeneutics, which takes into account three aspects of the text: 1) the context, 2) the grammatical composition, and 3) the whole text, i.e. the world-view. Only by so doing can the mission of Islam to create justice, equality and welfare be accomplished.
To put the arguments regarding Islam and gender in the Indonesian perspective, I have elaborated the case of formalization of shari’a in Indonesia’s region of Aceh. The study shows that most people felt misled by the formal shari’a as it did not fulfill their hopes for justice. Instead, it has targeted primarily to regulate women’s apparel and conduct. What people aspire is substantive shari’a and not formal shari’a.

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