INTRODUCTION
In the ongoing battles regarding Europe's “Muslim problem,”Footnote 1 Muslim adherence to gender equality has become a central demand. This has been manifested most ubiquitously in European debates regarding the ḥijāb, the Islamic headscarf worn by large numbers of religiously observant Muslim women, and more recently, the prohibition in some European states of the niqāb, the Islamic face veil worn by a relatively small number of Muslim women.Footnote 2 In some European states, for example, France, the desire to regulate the appearance of Muslim women is explicitly justified in the name of gender equality,Footnote 3 while in other European states, for example, Germany,Footnote 4 the rhetoric used to justify a prohibition of the ḥijāb has instead relied on classifying it as a dangerous political symbol. Often these justifications are advanced simultaneously, reflecting both the common European belief that theological adherence to Islam entails both a normative commitment to a system of gender hierarchyFootnote 5 and a fundamental rejection of European norms of civility and tolerance of others.Footnote 6
These concerns have even recently led some European states to take steps to screen immigrants from Muslim countries (but not immigrants from “western” countries such as the United States, Canada, and Australia) to determine whether their private “views and opinions” conform to European norms of gender equality with a view to excluding those whose views are deficient.Footnote 7 France, meanwhile, has recently denied French citizenship to both a Muslim man (2010)Footnote 8 and a Muslim woman (2008)Footnote 9 on the grounds that their religious commitments were incompatible with both secularism and gender equality.
Europe's focus on gender equality as a reason to exclude Muslims has found support in decisions of the European Court of Human Rights (ECHR). In two cases involving individual Muslim women as complainants, Dahlab v. Switzerland, and Layla Şahin v. Turkey,Footnote 10 and one case involving a Turkish political party with Islamist roots, Refah Partisi (The Welfare Party) and Others v. Turkey,Footnote 11 the ECHR made sweeping pronouncements about the nature of Islam as a religion and a legal system, and the meaning of Islamic religious symbols, that went well beyond the individual facts of each case.
In Dahlab the ECHR characterized the Islamic headscarf as a “powerful external symbol . . . that was hard to reconcile with the principle of gender equality,”Footnote 12 and “that wearing the Islamic headscarf could not easily be reconciled with the message of tolerance, respect for others and, above all, equality and non-discrimination.”Footnote 13 In Şahin, the ECHR reiterated the above-quoted dicta from Dahlab and added that the Islamic headscarf also had the potential to intimidate those women who did not choose to wear it.Footnote 14 The ECHR's decision in Refah, moreover, made clear that these unsavory elements of Islam are inherent to Islam, because they derive from the “sharia [i.e., Islamic law], which faithfully reflects the dogmas and divine rules laid down by religion, [and which] is stable and invariable.”Footnote 15 (Emphasis added).
The ECHR, then, has provided Europe's elected politicians with ample cover to target Muslims.Footnote 16 Some academics, in light of these decisions, have openly called on European authorities to take even more drastic action against European Muslims, arguing that European states should adopt measures not only to limit the growth of their Muslim populations, but also to encourage Muslims to leave Europe entirely.Footnote 17 What might be viewed as an extreme position is justified in part by the ECHR's categorical language regarding Islam's alleged commitment to anti-democratic principles, including Islam's alleged rejection of equality for women.Footnote 18
ISLAM, GENDER EQUALITY AND A DEMOCRATIC PUBLIC ORDER
The ECHR's decisions involving Muslims have effectively granted European states a wider “margin of appreciation” with respect to their powers to regulate Islam than they enjoy with respect to other religions. In granting states this power, the ECHR has been willing to credit speculative arguments put forth by the respective state parties in justification of their respective policy decisions. This willingness to tolerate the restriction of Muslims’ rights on the basis of the harms that might occur to either the integrity of Europe's democratic public order, the individual autonomy rights of others, or the public value of gender equality, is closely connected to the ECHR's normative conception of how the shari‘a constitutes a Muslim's religious and political commitments: first, it consists of a set of divinely mandated rules that are, by virtue of being divinely mandated, immutable and invariable, and thus is incompatible with the idea of democratic self-governance; and second, the specific norms of the shari‘a, for example, a principled commitment to gender hierarchy, are in direct conflict with the norms of a democratic order.Footnote 19 Therefore, the ECHR's reasoning suggests, adherence to Islam is not consistent with Europe's public order and accordingly, needs only be tolerated to the extent that Europe's political leaders — depending on the varying circumstances of each state — decide is prudent.Footnote 20
The ECHR's reasoning in these cases has been identified as a manifestation of the controversial concept of “militant democracy,” the notion that democracies are entitled to use extraordinary measures in order to combat threats to the public order of a democracy.Footnote 21 Whether a theological, moral or political doctrine deserves tolerance or should only be tolerated prudentially, raises a host of complex questions, both normative (“What makes a doctrine worthy of tolerance?”) and empirical (“What is the actual content of the doctrine about which we are concerned?” and “Do the followers of this intolerant doctrine actually represent a real threat?”).Footnote 22 While a court is clearly not well-positioned to engage in this kind of full-blown theological and philosophical inquiry, and while we would not expect or encourage judicial institutions to engage in such inquiries, inquiries into the relationship of religion and democracy are legitimate topics of political philosophy. And so long as an inquiry into the compatibility of certain Islamic conceptions with democracy are conducted within generally accepted philosophical frameworks, subject to the ordinary circumspection that applies to scholarly inquiry, there is nothing objectionable in posing these questions to the Islamic tradition.Footnote 23 This article hopes to take a step in this direction by considering Islamic arguments in favor of the Islamic legitimacy of citizen rights for women put forth in the last quarter of the 20th century, and asking whether these arguments are “compatible” with the norms of a liberal democracy, not only from a substantive perspective, but also from an evidentiary perspective. In other words, it also asks whether the kind of analysis modernist Muslim thought brings to bear on questions of basic political justice such as the political rights of women is theological or is instead rooted in reasons that would be admissible from the perspective of public reason.
The first step in such an engagement, however, is to determine the meaning of compatibility. The answer I offer draws on Rawls’ conception of the “overlapping consensus” as laid out in Political Liberalism.Footnote 24 In the Rawlsian account, an overlapping consensus exists when a majority of the politically active citizens of a society endorse, for reasons they individually consider morally compelling (even if such reasons are likely to be in fact philosophically incompatible), the constitutional essentials of the well-ordered society. An overlapping consensus is distinct from a modus vivendi insofar as in the latter, political stability derives solely from a contingent balance of power. A modus vivendi is unstable because individuals comply with the constitution only to the extent that an unfavorable societal balance-of-power compels them; they are ready to defect as soon as the societal balance-of-power becomes more favorable. Fear of Islam, in Rawlsian terms, is essentially the fear that committed Muslims lack a genuine moral commitment to the public values of democracy, and accordingly, caution is warranted with respect to the political demands they make upon the public order.
In assessing a doctrine's “compatibility” with “democracy,” therefore, a political liberal asks whether that doctrine provides its adherents with morally persuasive reasons, ideally, to endorse, or at a minimum, not to oppose, the principles of justice governing the well-ordered society. Accordingly, political liberalism is concerned not only with the fact of citizens’ adherence to the principles of justice, but with their motives for doing so. In the case of a question such as Islam's compatibility with gender equality, then, empirical data are ambiguous: doctrinal engagement with normative Islamic discourse is necessary.Footnote 25 A political liberal engages Islamic doctrinal arguments to identify with greater precision both areas of agreement and disagreement; assess the normative grounds for the areas of agreement and disagreement; determine the prospects of achieving an overlapping consensus in light of the areas of agreement and disagreement; and, finally, in the most ambitious stage of inquiry, propose, using reasonable conjecture, plausible positions that could represent an overlapping consensus.Footnote 26
Application of this method of inquiry to the question of Islam and democracy therefore provides a useful tool for assessing both the breadth and the depth of Islamic commitments that both affirm and reject principles of justice inherent in the idea of a well-ordered society, and the doctrinal resources available to Muslims that are both supportive of and in conflict with, the principles of justice. Viewed from this perspective, providing a categorical answer to the question of Islam's compatibility with democracy is highly implausible: the most that can be done is to identify issues of agreement and disagreement, assess the range of views available on an issue, and point to possible routes of reconciliation that can only take place over time through the process that leads to a “reflective equilibrium.”Footnote 27
While it is not clear exactly why the ECHR concluded categorically that adherence to the shari‘a is incompatible with democracy, perhaps it believed that adherence to the shari‘a contradicts the idea of democracy because it implies that legitimate law is only law derived from the interpretation of revelation. According to this conception of the shari‘a, there would be no room for democratic deliberation because it would be, in the best of circumstances, superfluous, and in the worst of circumstances, heretical. Certain Islamist groups, for example, those inspired by the thought of the 20th century Egyptian Islamist thinker, Sayyid Qutb, may in fact believe that all law not derived from revelation is by definition illegitimate.
Most Muslim theologians, both traditionalist and modernist, however, reject a conception of Islamic law that excludes the possibility of political rule-making. Pre-modern Muslim states, including the Ottoman Empire, routinely (even if non-systematically) engaged in law-making under the broad jurisprudential rubric of siyāsa shar‘iyya.Footnote 28 Rule-making pursuant to siyāsa shar‘iyya represented a mode of non-theological reasoning whose legitimacy depended on its conformity with the public good, not conformity with revealed text. Under this power, revealed law served only to limit the power of public officials, but did not otherwise define the law's content. Muslim modernists, as demonstrated in their arguments regarding the political capacities of women, which will be considered in greater detail below, moreover, reject the binding character of the pre-modern legal corpus. They instead favor political rule-making that relies largely on political deliberation, albeit within the limits of revealed law. There does not appear to be a clear normative basis, then, for the ECHR's conclusion that normative adherence to the shari‘a necessarily entails a rejection of democracy.
Gender equality, and its relationship to the principles of justice, however, is more amenable to a precise answer than that of Islam and democracy. Of course, pointing out the myriad ways in which historical Islamic doctrines are incompatible with contemporary norms of gender equality is an easy exercise, but given the universality of gender hierarchy in the pre-modern world, such an exercise is also a relatively trivial one.Footnote 29 Historical Islamic doctrines that assume a gender hierarchy, however, are often taken as representing “authentic” Islamic teachings on the common assumption that the rules of Islamic law, in the words of the ECHR, are “stable and invariable.” For someone interested in the prospect of achieving an overlapping consensus with doctrinally committed Muslims, one must determine the degree to which such Muslims retain these historical commitments, and if not, what kind of arguments they deploy to justify departure from them; and, finally, whether those reasons are indicative of an overlapping consensus or merely of a modus vivendi.
There is also the vexing and controversial question of what the principles of justice demand with respect to gender equality. One plausible configuration of gender equality is that articulated by the American political philosopher, John Rawls, in Political Liberalism, which limits itself to equality of citizenship. From this perspective, what democracy requires is only that citizens share a moral commitment to the equal citizenship of women. Gender inequality in other areas of life, for example, the family, particularly if motivated by voluntary adherence to religion, would continue to be permissible.Footnote 30 Political equality does not, of course, exhaust the domain of gender equality. Certainly, many feminists would insist that the law ought to display a thicker commitment to comprehensive gender equality than what political liberalism requires.Footnote 31 To this, a political liberal can reply that a state can enforce a more comprehensive form of gender equality only if it is willing to violate the principles of justice themselves.Footnote 32 Working from a Rawlsian perspective on gender equality, then, a political liberal asks whether there are persuasive Islamic reasons for committed Muslims to affirm that women enjoy the two moral powers of citizens, namely, a capacity for justice (they are “reasonable”) and a capacity to adopt, pursue, and revise their own conception of the good (they are “rational”). This article considers the arguments of two 20th century Muslim modernist reformers on the question of the status of women and their capacity for citizenship from the perspective of normative Islamic teachings in light of the concerns of political liberalism. The first thinker is the Egyptian-Qatari activist scholar, Yūsuf al-Qaraḍāwī, who wrote an essay in support of women's citizenship rights in response to a question presented to him in which he was asked, whether it is islamically permissible for a woman to run for, and be elected to, a national parliament.Footnote 33 The second is, ‘Abd al-Ḥalīm Abū Shuqqa, author of a four-volume treatise with the title TaḤrīr al-Mar'a fī ‘Aṣr al-Risāla [“The Liberation of Women During the Age of the Prophet [Muḥammad]”], who developed a novel theory regarding the relationship between political virtues and the perfection of Islamic virtues, on the one hand, and the duty of the public to provide individual men and women with the material support necessary to help them achieve moral perfection, on the other hand.Footnote 34
These two reformers are internal critics of the Islamic tradition with respect to its historical teachings on questions of women's capacities, and take the position that a correct understanding of Islam requires revisions of these historical doctrines. Additionally, by considering in some detail the justificatory structures of these doctrinal developments, this article also aims at presenting an account of how doctrinal change can take place within Sunni Islam. This is important not only for assessing the theological plausibility of the revisionist arguments, but also for disclosing the extent to which Islamic reasoning overlaps with the evidentiary demands of public reason.Footnote 35 Review of both the substance of these revisionist Islamic positions, and the evidence used to justify those revisions, demonstrates the realistic prospect of a deep overlapping consensus with respect to two elements necessary to the stability of a well-ordered society: first, the political equality of women and men; and second, the greater weight given to common sense observation over theological reasoning.
Of course, the fact that orthodox Muslims may have good doctrinal reasons to support the political equality of women does not mean that they will do so in fact. The opposite, of course, is also just as true: the fact that historical Islamic doctrines may give Muslims good reasons not to endorse gender equality does not mean they will inevitably endorse gender hierarchy; they may simply exhibit unsystematic thinking with respect to certain areas of their conception of the good. This kind of normative analysis, however, is nevertheless important because it suggests that Islamic commitments do not necessarily preclude Muslims from endorsing the political values of equal citizenship, and indeed in some cases may serve to strength these values. To that extent, articulation of such reasons helps deepen the broader overlapping consensus in democratic societies with significant numbers of Muslim citizens.
IJTIHĀD, ISLAMIC DOCTRINAL REFORM AND THE MODERNIST MUSLIM REFLECTIVE EQUILIBRIUM
Rawls uses the concept of “reflective equilibrium” to describe the means by which we reconcile our current convictions about justice with the convictions we believe we ought to have in light of the conclusions we derive from solving the problem of the original position. In the course of achieving reflective equilibrium, we abandon those present convictions that are relatively weak in favor of stronger convictions derived from our theoretical reflection. Our stronger present convictions, however, function as “provisional fixed points which we presume any conception of justice must fit,” and cause us to revisit our theoretical conclusions, leading us to correct what we believe to have been errors in our theoretical inquiry. This dialectical process between our actual convictions and our theoretical ones therefore transforms both; moreover, this process continues until our actual convictions regarding justice have converged with the results of our theoretical inquiry. Only when this convergence is achieved (if ever) do we reach the state of what Rawls calls “reflective equilibrium.”Footnote 36
An analogous process can be found in Islamic thought. Individual Muslim jurists and theologians who engage in the process of ijtihād attempt to reconcile their actual convictions — which may be the product of unreflective intuition, adherence to social convention, or inherited norms — with the convictions they believe they should hold after they exercise ijtihād.Footnote 37 As Rawls suggests, a particular jurist/theologian's pre-interpretive commitments may be more or less strong, and we can expect that the amount of interpretive effort a particular scholar will spend in reconciling the two will vary directly with the strength or weakness of those pre-interpretive commitments relative to what conclusions the interpreter would draw from an initial reading of revelatory sources. In the case of Sunni Muslim jurists/theologians, these pre-interpretive commitments will, to a large extent, also have to come to terms with historically ascendant positions within the tradition of Sunni Islam, at least to the extent that such positions are contradictory to, or in tension with, the contemporary interpreter's views. A contemporary reformer's interpretive labors, therefore, will almost certainly require both an affirmative reinterpretation of normative sources, for example, the Quran, the Prophetic tradition (the sunna) or authoritative consensus (ijmā‘), as well as a critique of the community's received interpretation of these sources in connection with the particular doctrinal revisions the interpreter advocates. At the same time, his or her interpretive activities will be bounded by certain “fixed points” of justice and morality that any theory of Islamic commitments must include.
Normative Islamic commitments can be broken down into the three categories of the theological, ethical, and legal, with theological commitments representing the most fundamental doctrinal commitments and legal commitments representing relatively weaker ones.Footnote 38 And while it will often be the case that it makes sense for a reformer to structure his argument using the least controversial normative register available to him, for example, a legal argument as opposed to a theological one,Footnote 39 a reformer can also signal the depth of his commitment to a particular value by invoking theological justifications in addition to ethical and legal justifications. A theological argument signals a deeper commitment than a legal one precisely because the former is first and foremost a metaphysical claim about God and therefore is immutable, while a legal argument for reform may simply be a matter of arguing that the particular (and to that extent, a factually contingent) application of an otherwise valid universal norm is obsolete, without challenging the validity of the underlying rule.Footnote 40
Legal rules, while they generally will implicate some higher theological or ethical norm, are not wholly determined by them, and as a result, a reformer can make arguments for legal reform that, as a practical matter, can be quite substantial without ever challenging the theological basis of the rule in question. Take, for example, the verse in the Qur’ān that commands guardians of orphans to “test” their wards, and if they find them capable, to deliver to them their property.Footnote 41 Muslim jurists, in the course of deriving the legal implications of this verse, had to resolve two questions, one interpretive, and the other evidentiary. The interpretive question was whether it was intended to apply to both males and females (it did). The second was whether the test for capacity was the same for males and females (it was not). The first rule can be meaningfully described as an immutable rule of Islamic law. The second rule on the other hand can be meaningfully described as contingent on specific social circumstances, and thus is amenable to revision in the light of social change without challenging Islamic law's status as a revealed law.Footnote 42
Because of the graded nature of Islamic commitments, as well as their internal differentiation into transcendent and contingent commitments, principled doctrinal change is both a theoretical possibility, and as I will show in greater detail in this article, a historical fact. One kind of doctrinal change occurs when a reformer wishes to challenge what amounts to a pure question of law. In this case, the reformer has no choice but to declare the historical formulation of the rule to be mistaken and inevitably involves an argument related to the proper understanding of revelation. In other cases, the issue is that the continued application of a historical rule is no longer valid because the historical rule included, implicitly or explicitly, a factual assumption about the world that no longer holds true. In the case of al-Qaraḍāwī's and Abū Shuqqa's arguments considered here, both claims are made: that many historical rules regulating the capacities of women and the roles they could discharge in society, insofar as they are presented as immutable rules of Islamic law, were wrong as a matter of interpretation, and that other historical rules, insofar as they assumed a particular set of facts about the world, may have been legitimate in the past, but now they are obsolete and must be revised.
The ECHR's characterization of Islamic law as “stable and invariable” fails to take into account the capacity of Muslims, using ijtihād, either to challenge the normative status of a rule ab initio or to challenge its applicability in the world in which they live. The arguments of al-Qaraḍāwi and Abū Shuqqa on questions related to gender equality provide us a direct window into whether contemporary Muslim theologians distinguish between “immutable” Islamic principles (the Islamic equivalent of Rawls’ “provisional fixed points of justice”), “contingent” Islamic principles, the extent to which historical Islamic commitments are amenable to revision, and if so, on what grounds, theological, empirical or some combination thereof.
The focus on theologically-minded reformers should not be taken to mean that the Muslim world lacks more ambitious reformers, especially in connection with the issue of women's rights;Footnote 43 instead, because we are interested in assaying the capacity of Islamic doctrines to become more compatible with liberal democracy, it makes sense to consider the teachings of more conservative elements of the Muslim community on the assumption that Muslim reformers who have adopted a more substantially liberal conception of Islam, or even a thoroughgoing secularism already hold compatible views. On the other hand, if even conservative elements within the normative Islamic community endorse values consistent with the political equality of females, we can be more confident that there is a deep agreement between Muslims and non-Muslims with respect to this particular element of liberal democracy.Footnote 44 Al-Qaraḍāwī's views in this regard may be especially important given his active role in advising European Muslims and his status as an Islamic scholar with a popular trans-national appeal.Footnote 45
What makes al-Qaraḍāwī's and Abū Shuqqa's arguments particularly interesting and significant is that they are only tangentially rooted in pragmatic reasoning. While pragmatism certainly plays a role in some of their arguments (particularly to the extent they make significant the doctrinal consequences of the views of non-Muslims or secular Muslims), al-Qaraḍāwī and Abū Shuqqa both deploy arguments that run the gamut of theological, ethical, and legal rationales, thus indicating a greater depth to these commitments than would otherwise be the case if their reform arguments were only pragmatic.Footnote 46 In Rawlsian terms, therefore, the normative structure of their arguments is consistent with the conclusion that they affirm the political equality of women for “the right reasons” — and thus that a genuine overlapping consensus exists on this issue — rather than as a temporary concession reluctantly granted under the circumstances of an unfavorable balance of power which would be indicative only of a modus vivendi.
Abū Shuqqa, unlike al-Qaraḍāwī, who by virtue of his training in the prestigious Egyptian religious seminary, al-Azhar, had a long relationship with reformist-minded Egyptian clerics, was a student of the 20th century scholar of ḥadīth and arch-conservative, Nāṣir al-Dīn al-Albānī (d. 1999). According to Abū Shuqqa he had not intended to write a book on gender, but in the course of researching a biography of the Prophet Muḥammad, he confronted what he described as a radical disjuncture between commonly accepted religious limitations on women and the lives of women during the Prophet Muḥammad's lifetime.Footnote 47 Because of (and not in spite of) Abū Shuqqa's salafī heremeneutical commitments,Footnote 48 he believed that he had a moral obligation to produce a systematic critique of historical Islamic teachings on the opportunities available to women within Islam.Footnote 49 Although both of these thinkers approach the problem of women's capacity for citizenship using substantially different interpretive methods, they both share a deep commitment to a religious conception of the person that governs both males and females. This religious conception is grounded in Islamic scriptural sources, and where they believe that these sources clearly communicate a rule that establishes a norm of gender difference, they do not hesitate to endorse it.Footnote 50
There are some important differences in their respective approaches, however. Al-Qaraḍāwī begins with a hermeneutical presumption that revelatory language applies equally to both genders, thus placing the burden of proof on the party claiming a gender-distinction.Footnote 51 While al-Qaraḍāwī presents this principle in a matter of fact manner, the majority of pre-modern jurisprudents took the opposite view, concluding that revelation's use of the Arabic masculine plural form was to be understood as directed exclusively toward men in the absence of evidence to the contrary.Footnote 52 For al-Qaraḍāwī, the evidentiary bar for an Islamically grounded gender-distinction is rather high, with the result that he dismisses most pre-modern rules restricting females’ social and political freedoms as lacking sufficiently clear textual authority. Abū Shuqqa, on the other hand, establishes an explicit textual basis for a presumptive norm of gender equality, specifically, a saying of the Prophet MuÎammad in which he is reported to have said “Women are men's twins (al-nisā’ shaqā’iq al-rijāl).”Footnote 53
Otherwise, both scholars rely largely on immanent criticism of historical Islamic doctrines, at times exposing the weakness of the traditional readings of religious texts that served to subordinate women, while at other times they appeal to either changed empirical circumstances, for example, increased female education and the increasing complexity of social life, or new experiences that gave the lie to what had been received opinion, for example, that women were naturally incapable of serving in public office. Finally, both scholars also affirm revisionist substantive understandings of relevant religious texts in a fashion that furthers the cause of female political equality. The next two sections of this article will explore their arguments in detail.
AL-QARAD.ĀWĪ'S ARGUMENTS IN FAVOR OF WOMEN'S CITIZENSHIP RIGHTS
Al-Qaraḍāwī begins his argument by asserting the complete moral equality between men and women. He says “A woman is a human being subject to moral obligation like a man; she is obligated to serve God most high through worship, to establish His religion; to fulfill its duties; to avoid sin and not go beyond [God's] limits; to call others to it; and to command the good and to forbid the evil.”Footnote 54 He then states that men and women are equally responsible for the reform and improvement of society. Finally, he states that revelation's commands are not to be interpreted in a gender specific fashion unless they expressly use a gender classification.Footnote 55
While evidence for these three propositions existed in pre-modern Muslim thought,Footnote 56 no pre-modern Muslim theologian combined them to formulate a general theory of equality between the sexes. Fakhr al-Dīn al-Rāzī (d. 1210), for example, believed that God subjected women to the moral law primarily in order to make them beneficial to men.Footnote 57 And while Fakhr al-Dīn al-Rāzī's view may represent an extreme in the spectrum of pre-modern Muslim theologians’ views on women's moral lives, the overwhelming weight of pre-modern opinion was squarely opposed to the notion of women exercising political power. Some theologians expressed doubt, for example, regarding the historical accuracy of reports that an early caliph appointed a woman to serve as a supervisor of the marketplace,Footnote 58 and even though a substantial minority of Muslim jurists endorsed the possibility that women could serve as judges in non-capital cases, there is no historical evidence that any women were in fact so appointed.Footnote 59 Al-Qaraḍāwī's claim that women, like men, were obligated to engage in the public manifestation of Islam represents a substantial departure from pre-modern doctrines that largely required women to live a cloistered life separate from men unless exigent circumstances required her to leave her home.Footnote 60
Another crucial step in al-Qaraḍāwī's revisionist interpretation of gender roles is the application of his broader commitment to “legal minimalism”Footnote 61 to questions of gender, declaring that:
It is necessary that we [Muslims] do not bind ourselves to anything other than texts that are clear, historically well-documented, express and binding. As for those texts, like weak ḥadīths [i.e., precedents attributed to the Prophet Muhammad] or those whose meanings are ambiguous which can bear more than one meaning or more than one explanation, as in the case of those texts dealing with the Prophet's wives, no one can bind the community to one understanding or the other [with respect to such texts], especially with respect to general matters of society which effect everyone and are in need of facilitation.Footnote 62
Because al-Qaraḍāwī asserts that, with respect to secular affairs (al-taṣarrufāt al-dunyāwiyya), the default Islamic rule is one of permissibility (ibāḥa), the party that seeks to restrict this default state of freedom is obliged to produce incontrovertible evidence (dalīl lā shubhata fīhi) in support of that position.Footnote 63 If the religious text grounding a restriction of this default state of freedom is controvertible, Muslims are free to legislate in a flexible manner subject only to the limitation that the rule they adopt does not violate Islamic law. Al-Qaraḍāwī's legal minimalism not only functions to limit the set of religious texts that Muslims need to consider when considering political questions such as women's political rights, but also gives greater priority to the kind of evidence that public reason recognizes as probative in resolving public issues of justice.Footnote 64
Al-Qaraḍāwī dismisses the relevance of pre-modern Islamic law's restrictions on women for modern Muslims on both grounds of obsolescence and moral grounds. Thus, many historical rules were based on specific social problems that are non-existent in the modern world, and thus are obsolete. He explicitly criticizes pre-modern doctrines that restricted women's public freedoms as unjustifiable examples of a harsh spirit (tashaddud) that contradicted Islam's true nature, laying responsibility largely on the shoulders of pre-modern Muslim jurists who went too far in applying the precautionary principle of preventing harm (sadd al-dharī‘a) arbitrarily to issues relating to women.Footnote 65
Al-Qaraḍāwī also introduces a consequentialist argument. He notes that the issue of gender discrimination has the potential to cause great practical damage to Islam in the modern world. He is cognizant of the centrality gender plays in secularist and non-Muslim critiques of Islam, noting that they accuse Islam of devaluing women by denying them the right to use their talents and abilities. This argument, al-Qaraḍāwī notes, takes its strength from some positions held by pre-modern Muslims as well as some contemporary Muslim zealots (aqwāl ba‘ḍ al-mutashaddidīn min al-mu‘aṣirīn).Footnote 66 It behooves Muslims, he argues, to renounce such rules, not only because they are either non-obligatory or un-Islamic, but also because they harm Muslims’ collective reputation in the modern world.
This consequentialist argument might cause one to pause before concluding whether al-Qaraḍāwī is committed to the political equality of women for the right reasons. Perhaps al-Qaraḍāwī is less motivated by an internal moral commitment to recognizing women's talents and abilities than by a contingent concern for what non-Muslims think of Islam. This might give rise to a suspicion that, should non-Muslims become indifferent to issues of gender equality or if Muslims became indifferent to such criticisms because of increased power, al-Qaraḍāwī might lose his zeal for reform. Such a concern would be most plausible if consequentialism were the only jurisprudential principle on which al-Qaraḍāwī relies. As we have seen, however, this is only the third leg of his argument (and a minor one at that), with the other two being consistent with a deeper moral commitment to the idea of women as morally entitled to participate in politics on an equal basis with men.
Moreover, it is not clear whether his consequentialist argument is a “bad” argument from the perspective of political liberalism. After all, it appears to take for granted the notion that women are morally independent agents having the capacity to formulate and revise their own conceptions of the good. In addition, the consequentialist concern for the effect of anti-Islamic propaganda on Muslim women has the potential to evolve into a more principled Islamic endorsement of gender equality: Muslim feminists have long criticized Islamic law as manifesting patriarchal bias because its rules were formulated almost exclusively by men. The consequentialist argument, implicitly, accepts this point and suggests that the rules of Islamic law on matters related to gender cannot be legitimate, at least in the long run, if they fail to incorporate the points of view of Muslim women.
AL-QARAD.ĀWĪ'S ANALYSIS OF WOMEN'S POLITICAL CAPACITY
Al-Qaraḍāwī's positive argument in favor of the political participation of women relies on three broad principles: his strong theological/ethical defeasible presumption of gender equality; the jurisprudential presumption of freedom in secular affairs; and a consequentialist analysis of legal rules. I will describe his most important arguments below.
TEXTUAL ARGUMENTS: AMBIGUOUS TEXTS AND REVISIONIST INTERPRETATION
Al-Qaraḍāwī rejects traditional references to a group of revelatory texts that had historically been used to justify the exclusion of women from the public sphere as either ambiguous, or more plausibly understood as inapplicable. Two themes were particularly important to the traditionalist case against the legitimacy of female participation in politics. The first was the ideal of female seclusion, which is said to derive from a verse in the Quran that includes the phrase “and stay in your homes” (wa qarna fī buyūtikunna).Footnote 67 The second was the norm that women should not exercise political power, a position said to derive from a statement widely attributed to the Prophet Muḥammad in which he was reported as saying “Never shall a folk prosper who have appointed a woman to rule them.”Footnote 68 Traditionalists also cite language from the Quran which states that “men are the maintainers of women” in support of this second theme.Footnote 69
“AND STAY IN YOUR HOMES”
Al-Qaraḍāwī raises three arguments against the political implications of this verse. First, the scope of the command is ambiguous: because the verse is directed in the first instance toward the Prophet's wives, there is substantial doubt whether this command is generally applicable, as it is generally accepted by Muslim jurists that the Prophet's wives were subject to particular rules on account of their special status within the Muslim community.Footnote 70 Second, the grammatical command, “stay in your homes,” is immediately followed by a negative command stating “and do not go out [in a display of beauty] in the manner of [the pre-Islamic] days of ignorance.” Al-Qaraḍāwī argues that this negative command would make no sense if the first phrase were a categorical prohibition. Third, ‘Ā’isha, the Prophet's youngest wife and considered by Sunni Muslim tradition to be a leading legal authority in her own right, left her home at the head of an army to seek justice for ‘Uthmān b. ‘Affān, the slain third caliph, during the course of the first Muslim civil war. And, while she later regretted that decision, it was not her decision to leave her home in pursuit of a matter of grave public importance that she regretted, but rather her poor judgment in rebelling against the fourth caliph, ‘Alī b. Abī Ṭālib, that occasioned her regret.Footnote 71
Al-Qaraḍāwī also raises two substantive arguments against the plausibility of a rule prohibiting women from leaving their homes. First, confinement to the home was imposed in the earliest stages of Islamic law as a punishment for sexual misconduct, so it is factually implausible that what began as a penal sanction became a general duty for all Muslim females.Footnote 72 Second, a tacit consensus exists among modern Muslims that female participation in public affairs is permissible:
Women have actually left their homes; they go to school and the university; they work in different areas of social life, doctors, teachers, supervisors, administrators, as well as other matters, without anyone of importance expressing any objection, something that many consider a kind of consensus regarding the permissibility of women working outside the home, subject to its [Islamic] conditions.Footnote 73
Accordingly, al-Qaraḍāwī seems to suggest, any pre-modern Islamic norm that proscribed women's freedom to leave their homes was either a contingent norm based on exaggerated precaution, or a cultural norm. In no case, however, can the historical rule prohibiting women from leaving their homes except in exigent circumstances be defended as an immutable rule of Islamic law.
“NEVER SHALL A FOLK PROSPER WHO HAVE APPOINTED A WOMAN TO RULE THEM” AND “MEN ARE THE MAINTAINERS OF WOMEN”Footnote 74
Al-Qaraḍāwī follows the same approach with respect to the Prophetic statement “never shall a folk prosper who have appointed a woman to rule them” and Quran 4:34's statement that “men are the maintainers of women” that he took toward Quran 33:33: he first casts doubt on the clarity of the language, and then suggests that a different reading of the texts — one that would permit women's participation in politics — is the more plausible reading.
Al-Qaraḍāwī argues that neither of these texts, whether alone or taken together, could reasonably be read to justify a categorical exclusion of women from politics or public life. Quran 4:34, for example, speaks of family life, not social life in general. Even in family life where Islamic normative doctrine provides that the wife should defer to her husband (a doctrine that al-Qaraḍāwī does not challenge), al-Qaraḍāwī argues that the husband is not entitled to act as a dictator, commanding his wife arbitrarily without taking into account her views or that she lacks the right to criticize him or hold him accountable for his actions.Footnote 75 Moreover, politics in the Islamic conception according to al-Qaraḍāwī, is a form of commanding the good and forbidding the evil (al-amr bi-l-ma‘rūf wa-l-nahy ‘an al-munkar), an activity which applies to both men and women. Accordingly,
So long as a woman has the right to offer advice, to advise based on what she believes is correct, to command the good and to prohibit evil, and to say “This is correct and that is false” in her capacity as an individual (bi-ṣifatihā al-fardiyya), there is no religious objection preventing her from undertaking these activities as a member of parliament [or as a citizen generally].Footnote 76
Moreover, Muslims have not, as a historical matter, agreed to the proposition that women were categorically prohibited from exercising power over men. First, there was unanimity that women could serve as muftis (individual scholars with expertise in the law who are qualified to answer the legal questions of non-specialists). Second, a minority of Muslims jurists, including the historically influential Ḥanafī school of law which dominated the Ottoman Empire, permitted women to serve as judges in all but capital cases. Third, any historical consensus regarding the exclusion of women from certain political offices was limited to the office of the caliphate, an office which no longer exists.
Accordingly, he concludes that, at a minimum, there is nothing in Islamic religious texts that would prohibit some women from exercising political power over some men. In any case, the most plausible reading of the Prophet Muḥammad's words, according to al-Qaraḍāwī, is not that it communicates a universal norm disparaging the ability of women to be successful political leaders, but rather, given what is known about the historical circumstances of the Prophet's statement, that the Prophet Muḥammad was referring to the internal turmoil of the Persian state at the time, and the arbitrariness of their system of dynastic rule that led them to appoint the daughter of the late king as their leader despite the fact that more competent leaders were available. Indeed, al-Qaraḍāwī criticizes the traditional interpretation of this hadith as creating a contradiction with the Quran, which includes a positive account of the leadership qualities and political acumen of Bilqīs, the Biblical Queen of Sheba.Footnote 77
QARAD.ĀWĪ'S EMPIRICAL ARGUMENTS IN FAVOR OF EQUAL CITIZENSHIP
Historical Muslim objections to female participation in the political sphere were not solely based on revelation; they were also based on precautionary rules adopted to prevent sexual impropriety, and assumptions about the natural differences between the sexes. Al-Qaraḍāwī responds to both sets of arguments. In so doing, he relies heavily on both changed social circumstances and awareness of new social possibilities that these changes have engendered. Two social developments stand out as particularly important in refuting these prudential and natural arguments against female participation in the political sphere: mass-education and democratic decision-making.
PROHIBITION OF FEMALE PARTICIPATION IN POLITICS AS A PRECAUTIONARY RULE
Islamic law accepts the legitimacy of certain kinds of precautionary regulation designed to prevent harm, a technique of reasoning called “blocking the means” (sadd al-dharī‘a). Essentially, this principle permits the proscription of otherwise innocent conduct because the proscribed conduct is a conduit to unlawful conduct. This kind of rule making is prudential, and relies explicitly on exigent circumstances or assessment of empirical risk of illegality in formulating rules, rather than representing categorical normative judgments.
Al-Qaraḍāwī accepts the legitimacy of “blocking the means”; however, he insists that its application requires substantial empirical justification, certainly more than the pre-modern period jurists would have required. When jurists restrict rights on the basis of weak empirical evidence of harm, he argues that they subvert the principles of Islamic law. This relatively skeptical approach to “blocking the means” permits him to reject a large swath of pre-modern restrictions on female participation in politics at once.
One particularly disabling class of precautionary rules barred women from mixing with men on the grounds that exclusion of females was necessary to prevent sexual impropriety. As applied to the issue of female political participation, the argument runs as follows: for a woman to participate in politics, particularly as a candidate for elective office, she will inevitably mix with crowds of strangers, and speak to them in public and private, giving rise to situations in which there is a high-risk that Islamic norms of sexual propriety will not be observed. If she is successful in her campaign, moreover, such situations will be multiplied and perhaps become a regular part of her daily life.
Such an argument would have been sufficient in the pre-modern period, and in fact, was regularly used to justify the exclusion of women from appointment to public offices.Footnote 78 Because al-Qaraḍāwī is skeptical of these prudential arguments, he rejects them on the grounds that they are too speculative to justify exclusion of Muslim women who, he assumes, possess moral integrity and can be assumed to observe Islamic norms of sexual propriety. Accordingly, while he accepts the legitimacy of traditional Islamic norms of sexual propriety — including the notion that women should be careful to avoid casual mixing with males and that they should observe Islamic dress requirements — he rejects the notion that women who observe these requirements should nevertheless be excluded because of the hypothetical risk of sexual impropriety.
NATURAL DIFFERENCE BETWEEN THE SEXES
Another line of argument Muslim theologians and jurists traditionally used to exclude women from public life was rooted in a theory of natural distinctions between the sexes which lead to a gendered division of labor. Pursuant to this division of labor, women specialize in the household, both in terms of caring for the household and procreation. These functions require a more-finely developed emotional sense than that required by men, whose nature drives them to excel outside the home in public institutions such as the market. Thus women by their nature are emotional decision-makers in contrast to men who are rational decision-makers. Women's biological functions, moreover, impose certain disabilities on them relative to men that make them ill-suited to public life: menstruation, pregnancy and nursing, all of which reduce women's natural capacity and inclination to assume and discharge public responsibilities relative to men. The traditionalists also claim that the Quran confirms this view of female nature in its criticisms of the Prophet's wives, who despite their great religious merit, were incapable of controlling their emotions.Footnote 79
Al-Qaraḍāwī criticizes this argument on two grounds, over-breadth and contemporary experience. Without denying either that biology plays a large role in determining the capabilities of men and women, or that woman's biological functions may in some cases reduce their ability to discharge public responsibilities effectively, he denies that these possibilities could justify a categorical rule precluding all women from public office. Some women according to al-Qaraḍāwī will always be able to discharge the requirements of their office despite biological impediments: women are neither pregnant, nor lactating, nor engaged in child-rearing for the entirety of their lives. Moreover, both men and women are prone to poor decision-making when they let their emotions rule them instead of their reason. The evidence of the Quran is clear on this point: just as it criticized the behavior of the Prophet's wives on particular occasions, so too did it criticize the conduct of the Prophet Muhammad's male companions. And in any case, the specific evidence of the Prophet's wives refutes the traditionalist interpretation: after the Quran admonished their poor judgment, they accepted its criticism and acted in accordance with reason, not emotion.Footnote 80
Accordingly, the issue for al-Qaraḍāwī again turns on evidence, but instead of considering the evidence at the generic level of women, he argues that the relevant evidentiary judgment must be conducted at the level of the individual woman: if she, as an individual, is qualified to discharge the requirements of her office, then her gender should not bar her. Overbroad generalizations are not sufficient to meet the burden of proof required to proscribe an established right, if not obligation, of civic engagement.
His second argument is derived from modern experience: in the last 100 years, “millions of girls” have received education and as a result, women are already serving public roles in very large numbers, without any evidence that they are less competent than men. Indeed, al-Qaraḍāwī points out that in today's Muslim world, the number of educated women equals and perhaps exceeds that of men. Moreover, he says, “some [women] are geniuses who are superior to some men, genius not being limited to males. So, many women have talents that are difficult for many men to achieve.”Footnote 81 The fact that in the past Muslim societies excluded women from political positions is not Islamically normative; rather, that was merely a reflection of the dearth of educational opportunities available to Muslim women at that time.Footnote 82
INSTITUTIONAL, NOT PERSONAL, RULE
One of the most significant normative arguments al-Qaraḍāwī deploys against the traditionalist Islamic rule prohibiting (or greatly limiting) the eligibility of women for public office is his characterization of democratic decision-making as one based on the rule of institutions, not particular individuals. In other words, when a woman serves as a member of parliament, or even as a prime minister, she is not exercising personal power. She is exercising the power of an institution that is regulated by generally applicable law, and she has no individual power over the formulation of such rules. It is valuable to quote his words directly in this context, because of their implications for his acceptance of the importance and legitimacy of democratic rule, not just the implications of democracy for female participation in public governance:
A modern democratic society, when it appoints a woman to a general office such as a ministry, or a department or prosecutor's office or such, that does not mean that she has been given general authority in reality or that she has been given absolute responsibility over that task. Instead, observed reality is that responsibility is collective and authority is shared; it is discharged by a group of institutions and departments, and the woman simply discharges one of these various functions. Accordingly, the rule of Thatcher in the UK, or Indira Ghandi in India, or Golda Meir in Israel, is not the rule of single woman over a people, but rather the rule of institutions and it is the institutions that rule, even if at the top is a woman. The ruler is the cabinet in its collective capacity, not the prime minister by himself or herself; at any time, her party can lose power by a vote, and even within her own party, she is but one vote and can be dismissed at any time.Footnote 83
A democratic society, then, precisely because it is institutionalized rule through law, renders the whole question of gendered-qualifications for political office irrelevant.
AL-QARAD.ĀWĪ'S ANALYSIS OF WOMEN'S RIGHT TO POLITICAL PARTICIPATION AND DEMOCRATIC COMPATIBILITY
Al-Qaraḍāwī's arguments in favor of recognizing women's right to participate in public political life are grounded exclusively in Islamic justifications (for example, the presumption of permissibility with respect to secular affairs), and are therefore indicative of the kinds of Islamic arguments that can be used to justify political equality. In his arguments, theological presumptions work hand-in-hand with common sense empirical observation, first to criticize historical Islamic doctrines, and second, to justify recognition of women's rights as citizens. The relationship of theological reasoning to empirical reasoning is particularly interesting from the perspective of political liberalism: because of his theological commitment to “legal minimalism,” al-Qaraḍāwī's arguments consistently substitute empirical evidence as the basis for moral decision-making, at least on matters of public justice, in place of speculative theological reasoning. His arguments are important then not only for their substantive content, but also for displaying the kind of willingness to rely on generally accessible evidence that underwrites a commitment to public reason.
On the other hand, there remain significant ambiguities in Qaraḍāwī's account of political equality. To the same extent that he is committed to affirming Islamic grounds for female participation in politics, however, he is also committed to an Islamic framework for regulating their participation in politics. While his arguments make short order of traditional restrictions on women's participation in politics, his continued commitments to the Islamic family law creates tensions with his affirmation that women have equal rights as citizens. Al-Qaraḍāwī does not fully resolve this tension, but instead adopts an approach that seeks to reconcile these spheres of law when they conflict. Accordingly, al-Qaraḍāwī argues that a woman should not pursue a political vocation at the expense of the duties she owes to her husband or the duties she owes as a mother to her minor children. In short, in at least certain circumstances, a woman's pursuit of a public vocation is qualified by her family law obligations.Footnote 84
It would be wrong, however, to conclude that in affirming the continued validity of Islamic family (in at least some form), al-Qaraḍāwī is subtly introducing other grounds to exclude women from the exercise of citizenship rights. First, unlike pre-modern authors, al-Qaraḍāwī recognizes these limitations as flowing directly from a Muslim woman's own moral commitments rather than her nature or as an entailment of divine text. More importantly, al-Qaraḍāwī points out that not all women are subject to conflicting family commitments, and even in respect of women who do, these obligations, by their very nature, are temporary and do not, in the ordinary case, consume the entirety of her life.
A more significant doctrinal issue arises out of the traditional doctrine that a wife is obliged to defer to her husband, a doctrine that al-Qaraḍāwī does not repudiate. A broad understanding of this duty could potentially eviscerate a married woman's rights as a citizen, in which case, whatever rights she theoretically enjoys under the constitution as a citizen could be negated by the husband's rights under family law to circumscribe those rights, for example, by imposing upon her unreasonable demands. While al-Qaraḍāwī does not deal directly with the potentially problematic relationship of the husband's Islamic right to obedience and his wife's political rights as a citizen, there are significant hints in his argument suggesting that he believes that obligations of spousal obedience do not permit a husband to prevent a wife from exercising her rights as a citizen. Consider the following passage in which he argues that there is no Islamic principle as such that prohibits women from exercising political power over men:
We now permit women many tasks that were previously unknown; we have established schools for [them] and colleges in which millions of girls are enrolled; they graduate teachers, doctors, accountants, and administrators. Some of them are directors of institutions which include men. It is not unusual for a male teacher to work in a girl's school whose principal is a woman; nor is it unusual for a male professor to teach in a female college whose dean is a woman. Many employees work in companies or establishments whose manager or owner is a woman. Indeed, it might be the case that the woman's husband himself is subject to her control at the school, college, hospital or establishment which she manages, and she is subject to his control when she returns home.Footnote 85 (Emphasis added)
In short, his argument implicitly limits the husband's right of obedience to matters narrowly connected to family life. It is difficult to read al-Qaraḍāwī, in light of this quote, as accepting the notion that husbands’ rights as heads of households give them the authority to preclude their wives from exercising their rights as citizens outside the home. In short, al-Qaraḍāwī appears to solve the potential problem of the doctrine of obedience — at least from the political perspective — by radically restricting the scope of this duty.
From the perspective of political liberalism, then, the question is whether al-Qaraḍāwī's affirmation of a woman's family obligations in the context of a gendered system of family law, despite his affirmation of the Islamic legitimacy of a woman's civic commitments, can be taken as evidence of a sufficiently moral commitment to the political equality of women. I think the answer here is a qualified yes: Rawls, in his essay The Idea of Public Reason Revisited,Footnote 86 discusses at some length the relationship of the family to the basic structure, and concludes that the family is only partially subject to the principles of justice. Indeed, Rawls explicitly permits the continued existence of a gendered division of labor within the family so long as background conditions are reasonably just. This would entail providing a reasonable right of exit to women from hierarchical family structures whose associational terms they can no longer accept, and guarantees that women have sufficient access to goods such as education and the employment market so that they can make effective use of their liberties.Footnote 87 Accordingly, the mere fact that al-Qaraḍāwī supports a gendered conception of marriage is not, in itself, grounds to conclude that his conception of the family and its relationship to women's citizenship rights is necessarily incompatible with political equality between men and women.
The better criticism, then, of al-Qaraḍāwī is that, whether by oversight or indifference to questions of distributive justice, he does not tie a woman's citizenship rights to a distributive scheme that would make women's citizenship rights effective. Abū Shuqqa's account of women's rights fills this gap. His theory articulates a theory of moral motivation that compels Muslim women to pursue some kind of a public life as part of her desire to perfect her Islamic virtues. Because he ties the exercise of citizenship rights to moral virtues, he considers in some detail the affirmative obligations of society to provide women “the all-purpose means” that will enable them to fulfill this aspect of their moral personality.
ABŪ SHUQQA'S ISLAMIC CASE FOR GENDER-BASED AFFIRMATIVE ACTION
Abū Shuqqa, unlike al-Qaraḍāwī, does not provide a systematic argument for women's rights of political participation. Instead, he marshals what he believes are the relevant revelatory texts, organizes them thematically, and then makes his arguments in the form of a commentary. His general strategy is first to use the texts he cites to demonstrate that they contradict post-Prophetic, pre-modern Islamic ideals of gender segregation. Next, he uses these texts to argue affirmatively that they provide strong evidence that participation in public life is an important element in the good life of a Muslim woman. Like al-Qaraḍāwī, he is careful to separate himself from calls for gender equality that are rooted in western political theory, asserting in all cases that Islamic norms govern the conditions for female participation in public life, a fact that assures that inter-gender relations will be formal and business-like.Footnote 88 His views are also consistent with those of al-Qaraḍāwī insofar as he identifies a woman's familial duties to be primary and thus override her right to engage in public activities if they conflict.Footnote 89
Unlike al-Qaraḍāwī, however, Abū Shuqqa recognizes that this potential conflict raises a question of distributive justice that Islamic law must answer. The specific question Abū Shuqqa raises is whether Muslims have an obligation to ameliorate this conflict so that Muslim women will be effectively able to pursue public lives. He argues that is impermissible for the institutions of a Muslim society to be structured so that women are generally unable to fulfill anything but their familial duties.
Thus, he dismisses arguments that women's primary responsibility as caretakers precludes them from living a public life as being rooted either in pure fancy (wahm),Footnote 90 or if real, is indicative of defective public institutions (‘ajz al-mu'assasāt al-‘āmma) rather than a justification for denying women a fair opportunity to have public lives.Footnote 91 Accordingly, he recognizes an obligation on the part of both public institutions and individual family members to create institutions and other arrangements that will allow women to reconcile their primary familial duties with their interest in a public life. Public measures would include measures similar to affirmative action designed to compensate women for their domestic responsibilities, including providing women advantages in the work force.Footnote 92 The obligation to incorporate women into the community's public life is for him a political responsibility, a social responsibility, and the individual responsibility of couples and their extended families. Thus, “the two spouses must strive [together], along with the institutions established by the state as well as social institutions, and along with them, the customs that society maintains, all of these must strive, together, to reconcile the primary obligation [of women] with [women's] other [social and political] obligations.”Footnote 93
This demand is partially grounded in the public interest: at times, women will be called upon to assume responsibilities other than those of the home, and they must be prepared to do so.Footnote 94 More fundamentally, however, Abū Shuqqa's call for a fundamental restructuring of Muslim society to permit women to reconcile their familial obligations with their desire (and at times their Islamic obligation) to live public lives is rooted in his conception of the relationship of a public life to the perfection of Islamic virtues: participation in public life is crucial to a woman's moral development and moral perfection, and far from contradicting her role as a primary caretaker, it permits her to discharge that primary obligation more perfectly.Footnote 95 Thus, in order for a woman to develop her moral potential, she must have “[the opportunity] to attend meetings of religious instruction; [the opportunity] to acquire [secular] sciences and knowledge (ṭalab al-‘ulūm wa al-ma‘ārif); the right to marry and procreate; the right to a profession (ḥaqq al-‘amal al-mihanī) if she has time for a profession; and the right to participate in social and political life (ḥaqq al-mushāraka fī nashāṭ ijtimā‘ī aw siyāsī).”Footnote 96 Participation in public roles therefore interacts positively with a woman's private roles, and produces a virtuous cycle of moral and ethical development without which moral perfection cannot be attained.
Women are just as amenable to moral perfection as men, Abū Shuqqa argues, despite a report attributed to the Prophet Muḥammad implying the contrary.Footnote 97 The fact that women have historically been less accomplished than men speaks more to a history of unjust social conditions rather than the inherent capacities of women as such. Women, according to Abū Shuqqa, largely because of the pressures involved in procreation and child-rearing, have simply not been given a fair opportunity to achieve moral perfection. Not only should women strive individually to obtain all the tools required for moral perfection,Footnote 98 but “it is obligatory [for society] to ensure equality between men and women with respect to educational opportunities, while taking care to insure that opportunities are structured in a manner sensitive to women's particular circumstances in terms of time, place and manner because most institutions, unfortunately, are established on the circumstances of men without regard to the circumstances of women.”Footnote 99
Abū Shuqqa's argument for women's participation in political and social life is therefore part of a larger argument about the role of such activities in the perfection of an Islamic conception of personhood. A woman can only achieve moral perfection if she participates in public political and social life, even if she must not abandon her primary role as supervisor of the family's home and children. Thus, while he denies claims of unnamed westernizers that a woman, in order to perfect her personhood, must have actual independence from her family, he agrees that it is impossible for a woman to perfect herself unless she has a meaningful civic life alongside her domestic life.
CONCLUSION
The ECHR characterized the rules of Islamic law, because of their religious nature, as immutable and, relying presumably on historical doctrines of Islamic law, concluded that Islamic law is inherently committed to a regime of gender hierarchy. Superficially, the ECHR's conclusions appear plausible: Islamic law derives its legitimacy from its correspondence with the transcendental will of God, and so from the theological perspective, Islamic law, in an important sense, does make claims to immutability. Committed Muslims, moreover, respect this theological claim by adopting a language for discussing the norms of the shari‘a that takes for granted the immutable nature of its norms. It would be an error, however, if Islam's theological claims regarding the immutability of Islamic law's norms were taken to mean, as a political matter, that Islamic law's actual rules are not capable of principled change. Even a Muslim committed to the theological underpinnings of Islamic law can accept a distinction between the immutability of Islamic law as a theological proposition with the historical fact that the rules of Islamic law have changed and continue to change, as evidenced by the arguments described in this article.
When a Muslim argues for revision of the historical rules of Islamic law, however, he or she does so in a language that reflects these theological commitments, and accordingly, she will argue either that the historical rule was itself erroneous and that the rule she advocates represents the “correct” rule, or that the historical rule is correct but that its application is erroneous due to changed social circumstances. This kind of doctrinal revision occurs through the Islamic interpretive process of ijtihād, which can take place along either a theological axis, or an empirical one, or both. In short, although the shari‘a as an ontological reality is immutable because of its status as God's will, human understanding of the shari‘a is temporal and capable of revision through a complex process of theological, ethical, legal, and empirical reasoning. A religious doctrine that is capable of internal correction through a method such as ijtihād, even if it denies the evolution of its values as such, would seem to be potentially compatible with the political commitments of democracy and therefore entitled to the same treatment as other religions.Footnote 100
I have argued that to answer the question of “compatibility” that so troubled the ECHR, particularly with respect to a specific norm such as gender equality, the proper framework to be used is the one provided by political liberalism. From this perspective, we ask whether contemporary Islamic doctrines provide committed Muslims Islamically persuasive reasons to affirm the political equality of women. Al-Qaraḍāwī and Abū Shuqqa do precisely that, not only substantively insofar as they reinterpret Islamic normative sources in a manner that makes them compatible with a conception of political equality, but also with respect to the importance empirical evidence plays in their arguments. The important role empirical evidence plays in their arguments ought to be of some significance from the perspective of political liberalism as well because it implies their agreement with political liberalism's insistence that political decision-making, at least with respect to basic question of justice, should be resolved using generally accessible evidence, not controversial, for example, theological, premises.
Our analysis, however, also shows areas of tension, primarily, with respect to issues within family law, and the extent to which continued commitments to hierarchy within the family could limit women's citizenship rights. Nevertheless, as al-Qaraḍāwī's example of the managerial wife and Abū Shuqqa's argument for affirmative action in favor of women show, there is reason for optimism to believe that even traditionalist Muslim theologians are less willing to use family law as a justification to reject citizenship rights for women.
Finally, there remains the issue of sexual freedom. The rejection of sexual freedom, whether for men or women, remains an “Islamic fixed-point of justice,” at least as a matter of moral commitment. Neither author's work, however, suggests an answer regarding the extent to which Muslims must honor sexual freedom as a political value, but on the assumption that European Muslims can honor a political right to sexual freedom, the fact that they reject sexual freedom as part of their way of life should not disqualify them from an overlapping political consensus: political liberalism takes for granted the continued existence of incompatible ways of life in the well-ordered society, some of which will be religious.
The fact that an important and influential trend within even conservative strands of modern Muslim thought endorses for religious reasons the political equality of women provides persuasive evidence for both the existence and depth of the commitment to that value among modern Muslim communities. Given the reasonable possibility that individual Muslims will hold interpretations of Islam that are at least as broadly reasonable on questions of equal citizenship for women as those articulated by al-Qaraḍāwī and Abū Shuqqa, or are reasonably susceptible of evolution in a direction that affirms the political equality of women, it seems that the best approach to questions of public accommodation raised by Muslims in liberal democracy ought to be no different than claims to accommodation presented by other minorities: case-by-case adjudication to determine first whether the rule violates a Muslim's religious freedom and second whether the right-restricting rule genuinely represents a necessary limit on individual freedom in a democratic society, without judicial indulgence of assumptions regarding the future dangerousness of the Muslim claimant.Footnote 101 In other words, there is no normative basis to permit to states a greater “margin of appreciation” with respect to public manifestations of Islam than the law gives them when non-Muslim citizens make claims for accommodation.Footnote 102
