CHAPTER TWO

NATURE AND MEANING OF GENDER EQUALITY IN ISLAMIC LAW

2.1     Introduction 

 This chapter discusses the concept of gender equality under Islamic law highlighting its nature and meaning, the position of women in Islamic Law, Greek Civilization, Roman Civilization, Women in India, Women in Jewish Society, Women in Christianity, Women in Pre-Islamic Arabia, Women in Islam, Women in Nigeria, etc. The chapter also encompasses discussion on the status of a woman as daughter, mother and wife.

2.2       Conceptual Meaning:

The conceptual meaning of some of the useful terminologies is discussed below.

2.2.1 Equality: refers to the act of being equal; a situation in which everyone is treated equally.[1] Equality according to Law Dictionary: is the Equality or state of being equal; especially likeness in power as political status.[2]

2.2.2 Gender Equality: connotes that women and men enjoy the same status and have equal opportunity to realize their full human rights and potential to contribute to national, political, economic, social and cultural development, and to benefits from the result. Originally, it was believed that equality could be achieved simply by giving women and men the same opportunities, same treatment. However, it was found not necessarily to yield equal result. Today, the concept of equality acknowledges that women and men sometimes require different treatment to achieve similar results, due to different life conditions or to compensate for the past discrimination. Gender equality, therefore, is the equal value by society of both the similarities and differences between women and men, and the varying roles they play.3

According to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, inequality or discrimination against women means any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their marital status, of human rights and fundamental freedom in all spheres of life.[3]

According to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW),Discrimination means any distinction, exclusion or restriction made on basis of sex in political, economic, social, cultural, civil or any other field.[4] Sex; means the sum of the peculiarities of structure and function that distinguish a male from female organism.[5] 2.2.3 Sex Discrimination: is any distinction made on the basis of gender especially against women.[6] According to Ibrahim A. Aliyu, the definition of Gender Equality given above is not properly addressed, because according to those definitions Equality becomes a strange phenomenon for it advocates free intermingling of men and women free sex, even freedom of dress itself, free and uniform working conditions for both men and women regardless of their natural differences of physical structure and capacities.[7]

2.2.4 Society: means a collection of human individuals who have grown interlinked through special arrangements, manners, laws, beliefs and aspirations and have a collective life.[8]According to Al-Buti, M. S. “Society” hangs on large part, on the co-ordinate balance of these two elements, that is, rights and duties. Nevertheless, human societies differ with respect to specific factors and causes which characterize them. This in turn, is related to the system of religious beliefs and concepts or social philosophy to which the society in question subscribes as well as the prevailing customs which hold sway over its members.[9]

In order for women to be successful in a modern society like the American society, they must forget about their womanhood, motherhood or even marriage and behave and live like men.11 According to the Terri Apter, on Successful Women in America, the women who are financially successful were not married or childless because they saw it as odds with their career position. According to her some widows said that their career position had been an important factor in the breakdown of their marriage.[10]

In the understanding of Muffi Allie Haroun Sheikh on the definition of Gender Equality given by Western Society,[11]equality between the sexes, was taken to mean that men and women were not only equal in moral status and human rights, but that the women were also free to undertake the same sort of jobs as were done by the men and that the moral restrictions on her needed to be slackened as they were not on men. According to the author, this is misleading, because it led the women astray and made them unmindful of their natural function on the performance of which depends the very existence of the human race and civilization. Woman became wholly absorbed in their economic, political and social pursuit [12]. 

According to Berube A., he defines Western Society to mean society which does not respect divine but secular laws. Muslims are also included if they disrespect the divine law.[13] The reason for this is that, the western society does not, in the context of its prevailing reality, adhere to any written or stated system with respect to this issue; Gender Equality.[14]

Some western writers such as John Stuart Mill, Thomas Hobbes, John Locke and James Mill, wrote on Women Rights and called for Gender Equality particularly John Stuart Mill who devoted most of his time to emancipation of women and equal treatment and same legal rights between males and females. As a political thinker, he posited that “The idea and institution by which the accident of sex is made the ground work of an equality of legal rights, dissimilarity of social function must long be recognized as the greatest hindrance to moral, social and even intellectual improvement”.[15]

[1] Oxford Advanced Learner’s Dictionary (International Student’s Dictionary), Oxford University Press (nd), 8thEd., pp. 492-493

[2] Bryan A. Garner (ed.), Black’s Law Dictionary, Thomson West Publishing Co., (2004), 8th Ed., pp. 616 3 Ibid 

[3] Article 17, Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa. Available at http://www.achr.org/English/_info/women_eni.html(accessed on the 20/04/13).

[4] Article 1, Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).

[5] Black’s Law Dictionary, Op.cit., p. 1496

[6] Craig v. Boren (1976) 429 U.S 190, 97 S.et 451 

[7] Aliyu, I. A. op cit., p. 1

[8] Benibe, A. Coming Out Under Fire; the History of Gay Men and Women in World War II, (New York: Free Press 1990), 291 in Haroun M.A.S. Morality in Islam Sexual Issues in Modern Era & It’s Solution in Islam Adam Publishers, New Delhi, India (2006), p.45.

[9] Al-Buti, M.S.R. Women Between the Tyranny of the Western System and the Mercy of the Islamic Law, translated by Nancy Roberts, Darul Fikr, Dimashq (2009, 3rd ed), p.25 11 Aliyu, I. A., Op.cit., p. 5

[10] Apter, T. Working Women Don’t Have Wives Professional and Success in the 1990’s, St. Martin’s Press, New

York, p. 206. In: Aliyu, I. A. Op. cit p.4

[11] Haroun, M.A.S. Morality in Islam Sexual Issues in Modern Era & It’s Solution in Islam, Op.cit, p.83. 

[12] Berube, A. Coming Out Under Fire; The History of Gay Men and Women in World War II, Op.cit., p. 291 

[13] Ibid 

[14] Al-Buti, M.S.R. Women Between the Tyranny of the Western System and the Mercy of the Islamic Law,

Op.cit., p. 26

[15] Okin  S.M. Women in Western Political Thought, London, (1980) pp. 197-210 in Badamasiuy. J, Status & Role of Women Under the Sharia, Zakara Publishers, Kaduna-Nigeria, (1998) p.7 18 Badamasiuy, J. Status And Role of Women Under the Sharia, Ibid.