Islamic legislative drafting methodology for women's equality rights in Palestine: Using codification to replace the wife's obedience obligation by full equality in the family law

Abstract

This thesis develops an Islamic legislative drafting methodology that is meant to serve a basis for bringing the family law of Islamic countries into line with current conceptions of gender equality found not only in the West but in Islamic law (the shari’a) as well. Contrary to Western assumption, the principle of gender equality is a fundamental principle of the Qur’an. As such, it pre-dates the emergence of concern for women’s equality in Europe by several centuries. Despite the early acceptance of gender equality in the Qur’an, shari’a contains many rules that are inconsistent with equality. By way of example, I focus on the wife’s obedience obligation found in verse 34 of sura An-Nisa’ (women) of the Qur’an and still found in the current family law of Palestine. I show how the obedience obligation can be abolished while remaining true to the basic principles of shari’a. Historically, in the face of pressures to adopt Western models of legal reform, some Islamic states have sought to use eclecticism as a legislative technique to select the most appropriate rule for current social conditions “from within” the shari’a sources. As understood by traditionalists, “from within” refers to one or more schools of classical jurisprudence dating from the 9 and 10 centuries. I argue that in keeping with a liberal interpretative approach to Islamic law reform, it is essential to include all sources of shari’a within the scope of eclecticism including the original and pure texts of the Qur’an and the Sunna as well as modern interpretations of these primary sources. By relying directly on the pure sources of the shari’a considered in their historical context, one can distinguish the fundamental and permanent principles of shari’a from the temporary rules. It is also essential not to confine research to classical jurisprudence at the expense of modern interpretative efforts. There is no basis for privileging old interpretive efforts. The methodology I advocate involves identifying the fundamental principles of shari’a and recognizing that fundamental principles must be adapted to the socio-economic conditions in which they are to be applied. In Palestine, the conditions that gave rise to the wife’s obedience obligation no longer exist and new ways of achieving equality must be found. The methodology I set out in this thesis provides a path to achieve this goal.