Contemporary Islamic Feminism: Between CEDAW's Equality and the Jus…

Introduction

Praise be to Allah. In modern discourse, and especially within some contemporary feminist movements, a doubt is raised to the effect that justice is absolute equality between man and woman in everything. This conception proceeds from the belief that achieving fairness for women depends on making them completely identical to men in rights and duties without any distinction. But is justice truly achieved by absolute equality? And is the method of the Islamic Shari’ah in organising the rights of the two sexes based on this identical equality, or on another basis that achieves real fairness more fully?

This article treats this problem with a scholarly, Shar’i method, showing that justice in the Islamic conception differs from absolute equality. The Islamic Shari’ah establishes the relationship between the sexes on the principle of justice, which requires giving everyone who has a right their right in a way that suits their nature and function, not on the basis of complete identity in obligations and rights. We will review the concept of justice and equality in Islam, and show the innate and functional differences between man and woman that require a just differentiation in some rulings. Then we will compare the vision of the Shari’ah with the theorising of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), explaining how that convention seeks to impose a formal equality that may at times lead to results that are socially and morally unjust, especially in societies that hold fast to family and religious values.

The Concept of Justice Versus the Concept of Equality

It is important at the outset to clarify the difference between justice and equality. Justice is putting a thing in its right place, and it is the opposite of injustice and oppression. Some scholars defined it as giving everyone who has a right their right, without diminishing it and without wrong. Equality, on the other hand, means sameness and correspondence between two things. It may seem at first glance that equality is a synonym of justice, but the reality is that justice is more general and more comprehensive: not every equality is justice, and not every justice requires absolute equality.

Muslim scholars affirm that Islam is a religion of justice, not a religion of absolute equality. Whoever said that the religion of Islam is the religion of equality has misrepresented Islam! Rather, the religion of Islam is the religion of justice, which is joining together things that are equal and separating things that differ. Not a single letter came in the Qur’an commanding equality at all; it commands only justice. Equality may mean treating two matters the same while ignoring the differences between them, whereas wisdom requires distinguishing between them if they are different. Therefore the word “equality” should not be used absolutely in the context of speaking about fairness, because equality between things that differ is injustice, and what is right is to seek justice in its true meaning.

From this standpoint the Shari’ah distinguished between the two concepts: justice may include treating alike and may include differentiating, according to the situation, whereas absolute equality includes only treating alike in every circumstance. Justice is to join together the equal and to separate the different, while absolute equality joins together both the equal and the different, and thereby equates opposites, and this is far from justice and fairness. Accordingly, it is not just to treat alike two persons or two situations that are essentially different; equality out of place leads to contradiction and injustice instead of fairness. It is not just to equate things that differ; if equality would lead to injustice and the loss of justice, then justice must be carried out. When you equate two things that differ, this means that one of them will be wronged; equality in this matter does not represent a moral value, but injustice.

Justice in the Islamic Shari’ah Between Man and Woman

Building on the above, the Islamic Shari’ah made justice the rule in distributing rights and duties between man and woman. The basis on which the rulings are built is not formal sameness, but the innate and functional entitlement of each of the two sexes. Allah the Exalted says in the Noble Qur’an: “And the male is not like the female” (Al ‘Imran 3:36), declaring the reality of the difference in creation between them. Nevertheless, Islam made them equal wherever they are truly equal: in a shared humanity, dignity, and spiritual and civil rights. In the view of Islam, man and woman are equal in human worth and religious capacity: both are addressed by the basic obligations of the Shari’ah, and both are entitled to reward and punishment in the Hereafter without distinction. Islam preceded modern legal systems in establishing the human and civil rights of women: it made a woman’s blood, honour and wealth inviolable like a man’s, and gave her the right to own and dispose of her wealth exactly as a man does. Indeed, verses of the Qur’an were revealed establishing spiritual equality between the two sexes in the greatest of stations: “Indeed, the Muslim men and Muslim women, the believing men and believing women, the obedient men and obedient women, the truthful men and truthful women, the patient men and patient women, the humble men and humble women, the charitable men and charitable women, the fasting men and fasting women, the men who guard their private parts and the women who do so, and the men who remember Allah often and the women who do so – for them Allah has prepared forgiveness and a great reward” (al-Ahzab 33:35), and His saying, the Exalted: “And their Lord responded to them, ‘Never will I allow to be lost the work of [any] worker among you, whether male or female’” (Al ‘Imran 3:195). These are explicit texts on the equality of man and woman in the recompense of the Hereafter and the acceptance of righteous deeds. Likewise Islam made them equal in most of its general legislation: each of them has the right to marry by their own choice without compulsion, the right to education and to permissible work, and the right to dignity and care within the family.

On the other hand, Islam distinguished between man and woman in some rulings where their nature and differing constitution require it. The Shari’ah views the physical and psychological differences between them as objective factors that call for a just distribution of roles, not unjust discrimination. The Qur’an drew attention to this in His saying: “And do not wish for that by which Allah has made some of you exceed others. For men is a share of what they have earned, and for women is a share of what they have earned” (al-Nisa’ 4:32). Each sex has aspects in which it is distinguished from the other according to the wisdom of the Creator, and this should be taken into account in obligation and in worldly reward. Justice, then, is that each party takes what suits its constitution and social function; treating alike in places of difference is a clear injustice that does not achieve fairness.

Practical Examples of Differentiating Justice in the Shari’ah

To bring the picture closer, here are real examples from the rulings of the Shari’ah in which it appears how it balances between equality where it is due and just differentiation where it is due:

Equality in dignity and religion: Islam establishes that man and woman are equal in the basis of human dignity, in Shar’i obligation, and in reward and punishment in the Hereafter. Both are addressed with faith, prayer, fasting and the other acts of worship, and there is no superiority in reward except by piety and righteous deeds. Likewise they are equal in the right of retaliation and the inviolability of blood, wealth and honour: retaliation is taken for killing a woman exactly as for killing a man, and stealing her wealth is punished exactly as stealing a man’s wealth. This is a just equality, because the two parties are alike in humanity and in responsibility before Allah.
Differentiation in financial duties: Islam obliged the man to spend on the woman (as wife, daughter or mother), and did not oblige the woman to spend on the man. For that reason a man’s inheritance is double a woman’s in some cases, not to favour one sex over the other, but because the man bears double financial burdens towards his family. This is a just differentiation that balances rights and duties: the woman takes half of the man’s share in inheritance but keeps it for herself, whereas the man is required to spend from his share on his wife and children. Justice requires that the woman take half of what the man takes in inheritance, just as it requires that sisters (females) be equal if they alone inherit. In the first case, the difference in share is justice itself, given the difference in financial obligations; in the second case, equality is justice because the circumstances are alike (two or more sisters with no male brothers).
Distinction in some judicial rulings: In testimony, for example, the testimony of two women is accepted in place of the testimony of one man in some financial transactions: “And bring to witness two witnesses from among your men. And if there are not two men [available], then a man and two women from those whom you accept as witnesses – so that if one of the women errs, then the other can remind her” (al-Baqarah 2:282). This is not a disparagement of a woman’s intellect or dignity, but consideration of specialisation and practical experience: this testimony concerns matters which men in traditional societies are usually more familiar with than women, so the testimony of two women was required in order to obtain a higher degree of precision. As for fields in which the woman has expertise and competence (such as the testimony of a midwife concerning a birth and the like), her single testimony is accepted by agreement. The rule is that the differentiation here came to ensure justice in securing the right, not to diminish the woman’s right.
Guardianship (qiwamah) and the role of each spouse: Islam placed guardianship (authority and responsibility) in the family on the shoulders of the man: “Men are in charge of women” (al-Nisa’ 4:34). This is a charge laid upon the man and an honour for the woman, since it burdens the man with the duty of spending, protection and making final decisions for the benefit of the family. In return, the Shari’ah obliged the wife to obey her husband in what is right, preserving the harmony of the family, but without this meaning tyranny or injustice from the husband; he is commanded to live with her in kindness and to give her material and moral rights. Here justice is that the head of the family be one, not two, to avoid conflict, and that the one most fit for this role be the one endowed with greater physical strength and wider practical experience (that is, the man in general). This arrangement takes into account the innate characteristics of each spouse: the man is sturdier for facing the outside world, securing resources and protecting the family, while the woman is more tender and merciful towards the children, and her psychological make-up is better suited to family stability. It is just, then, to assign the leadership of the family to the one more capable of it by constitution, while guaranteeing the rights of the other party. The jurists of the Muslims affirm that guardianship does not mean domination, but responsibility and service. Al-Bukhari narrated in his Sahih (5200) and Muslim in his Sahih (1829), the wording being al-Bukhari’s: ‘Abdan narrated to us: ‘Abd Allah informed us: Musa ibn ‘Uqbah informed us, from Nafi’, from Ibn ‘Umar, may Allah be pleased with them both, from the Prophet ﷺ, who said: “Each of you is a shepherd, and each of you is responsible for his flock. The ruler is a shepherd; a man is a shepherd over the people of his house; and a woman is a shepherd over the house of her husband and his children. So each of you is a shepherd, and each of you is responsible for his flock.”
Giving the mother precedence in custody and dutifulness: Although the father is the head of the family charged with leading it, the Shari’ah took into account the mother’s special share of tenderness and affection, and so gave her precedence in the custody of young children upon separation, out of regard for their interest and their natural need for maternal care. The Prophet ﷺ also enjoined dutifulness and good companionship towards the mother three times before the father, as a reward for her for the hardship of pregnancy, childbirth, nursing and early upbringing, in which the man does not share with her. This is an apparent inequality, but it is justice in reality, because it affirms the merit of the mother and her role, in which the two parents cannot be equal. Islam did not equate them in this respect because the nature of each is different; rather, it raised the standing of the mother out of mercy to her and to the children together.

From the preceding examples an important rule becomes clear: Islam treats alike where treating alike is right and just, and differentiates where differentiating is wisdom and justice. Thus justice is the arbiter and the regulator of equality, not the reverse. The ultimate result sought in the Shari’ah is fairness to each party and giving it what it deserves and needs. A woman may at times be treated with a distinction in her favour (as in her precedence in custody and dutifulness), and a man may be distinguished in other places (as in guardianship or the greater financial burden), to achieve the overall balance. This flexible view is entirely different from the idea of absolute equality, which ignores the real differences between the sexes.

The Innate and Functional Differences Between the Sexes

The Islamic method of justice rests on acknowledging the innate differences between man and woman as objective facts that cannot be abolished. Modern science confirms what the Shari’ah established beforehand: the existence of biological and psychological differences between male and female, reflected in the abilities, inclinations and natural roles of each. Among the most prominent of these differences are physical strength and endurance, the hormones that affect the emotions, and the reproductive function (pregnancy, childbirth and nursing are specific to the woman), in addition to psychological differences in degree of emotion, toughness and so on. These differences are not a deficiency or a normative ranking; rather, they are a complementarity between the two sexes to ensure the building up of life. Allah the Exalted says: “you are of one another” (Al ‘Imran 3:195). Al-Tabari, may Allah have mercy on him, said in his Tafsir: He means: “some of you”, O believers who remember Allah standing, sitting and lying on their sides, “are of others” in support, creed and religion; and the ruling on all of you in what I will do with you is the ruling on any one of you, in that I do not allow the work of any male or female among you to be lost.

On this basis, each sex is prepared for a certain range of social tasks: the man is generally more capable of arduous work, risks, protecting the family and financial provision, while the woman is more capable of caring for the young, making the home a place of rest, and spreading mercy and detailed care for the affairs of the family. Accordingly, it was just to assign the responsibilities of military service, fighting and protecting society to the man rather than the woman. The Shari’ah did not oblige the woman to be conscripted or to go to war; rather, it forbade that except voluntarily in cases of necessity, out of consideration for the weakness of her build and the gentleness of her nature. The Prophet ﷺ said: “I have not seen anyone more deficient in intellect and religion who is more able to take away the mind of a resolute man than one of you,” as an indication of the predominance of a woman’s emotion, not as a disparagement of her worth. In the same way, Islam did not charge the woman with spending on the husband or the family, because this is an economic burden that suits the abilities of the man and his traditional toil in the labour market. In return, the man was not charged with the hardships of pregnancy and childbirth and their consequences, which the woman was physically singled out for. This just division relieves the woman of burdens that would weigh down her nature if we obliged her to bear them on an equal footing with the man. Absolute equality means equality in functions and roles, and this equality is heavy upon women, because their created nature does not suit the man’s role. That is, the attempt to load upon the woman everything required of the man (and vice versa) is unfair to both parties.

From here we understand the wisdom of some Shar’i rulings specific to each sex. Justice does not mean identity if identity abolishes these innate facts. For example, exempting the woman from some obligations during menstruation and postnatal bleeding (such as fasting, which she makes up later, and prayer, which is dropped from her entirely during that period) is mercy and justice towards her particular biological state, whereas deaf equality with the man, obliging her to fast and pray despite the natural excuse, would have been injustice and harm. Likewise, the Lawgiver’s assigning to the man the right to divorce his wife himself, in contrast to the stipulation that the woman seek khul’ or resort to the judge, goes back to the nature of each in forbearance and patience in anger: generally the man is more deliberate in ending married life, whereas the woman’s overflowing emotion may drive her to a hasty decision that she regrets, so divorce was placed in the man’s hand to secure the interest of the family. This is not a rigid rule, since the woman also has the right to end the marriage through khul’ and through the court when needed, but the differentiation exists in a considered way, out of regard for the natures of the majority.

So the Shari’ah takes the differences into account and does not deny them, because they are the way of the Creator with His servants. It is part of complete justice that two different things be treated in a manner befitting their difference. For this reason our jurists established the rule: just equality joins together the equal and separates the different. Absolute equality, on the other hand, cannot be achieved except in theory, because it collides with human nature and tangible reality. Every human system that tried to ignore these differences ended in unjust results, even if intentions were good at the outset.

The Claim of Absolute Equality in Modern Feminist Thought

Modern history has known successive waves of feminist movements that raised the slogan of complete equality between woman and man. The matter began as a reaction to real injustices and legal and social shortcomings from which women suffered in earlier ages, whether in the West or the East. No fair-minded person denies that women were wronged in many societies throughout history under pagan customs or a deficient understanding of religion. Hence came the demand to lift injustice and enable women to obtain their legitimate rights in education, work, ownership and public participation. However, many feminist currents went to the opposite extreme: instead of demanding justice for women, they set out demanding absolute equality without limits. With time, the discourse of some feminist groups developed into denying any natural difference between the sexes, and regarding all differences as merely the product of social upbringing and male domination. They adopted the so-called theory of gender, which separates completely between sex as biological and role as social, and justifies the exchange of roles, and even the changing of sex itself, in the name of freedom and equality.

The extreme concept of equality among radical feminist movements rests on complete sameness in rights and duties. They regard any specification of the woman’s role in the family, for example, as a diminishing of her rights. They call for the woman to be present in every field in which the man is present and in the same proportion, whether in the army, the mines, or the leadership of states, and so on; otherwise reality, in their view, is unjust and contains discrimination against women. These movements exert cultural, media and even legislative pressure worldwide to impose their vision. The slogan of “gender equality”, as these movements present it, has become loaded with an ideology that sees the relationship of woman to man as a historical conflict that must be settled by seizing complete equality now and immediately. Much of its discourse is hostile to the man, regarding him as an oppressor by nature throughout the ages. There is no doubt that this extremism has negative consequences for the concept of the family and the social complementarity between the sexes.

Out of fairness, we acknowledge that the call for women’s equality with men carried positive aspects when it concerned lifting real injustice from women: such as granting them the right to learn, to own property, protection from violence and the like. These rights were in fact guaranteed to women by Islam centuries ago, while women were deprived of them in Western societies until recently. But the call itself went beyond that to demanding what neither human nature nor the Shari’ah can bear: numerical and functional equality in every field, without exception. They raised the slogan, “Everything a man can do, a woman can do on an equal footing.” In reality, applying this slogan literally led in many societies to counter-productive results that harmed women themselves. We will present some of those results when speaking about the social effects of absolute equality.

It is worth mentioning here that an international convention such as CEDAW came influenced by this modern Western egalitarian thought, as we will show. That convention laid down a global legal framework that apparently aims to do justice to women, but in fact proceeds from a strict egalitarian philosophy that does not acknowledge women’s natural particularities and their role in the family; rather, it regards them as obstacles that must be removed. Here lies the defect whose effects will be reflected socially and morally.

The CEDAW Convention and Its Vision of Gender Equality

An Overview of the Convention and Its Premises

The Convention on the Elimination of All Forms of Discrimination against Women, known by the abbreviation “CEDAW”, was adopted by the United Nations in 1979 and entered into force in 1981. This convention aims to guarantee the equality of women with men in all political, economic, social, cultural and legal fields. It defined “discrimination against women” as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing the recognition, enjoyment or exercise by women of human rights and fundamental freedoms on a basis of equality with men. It is clear from this that the convention rests on the principle of absolute equality and complete sameness between man and woman in legislation and opportunities, and holds that any distinction in treatment is necessarily a negative, rejected discrimination.

CEDAW stated this understanding of equality explicitly in its first article, and in its second article it obliged the signatory states to review their constitutions and laws in order to remove any provisions that distinguish between the sexes. It even demanded the abolition of customs and practices based on stereotyped roles for women and men. For example, the convention regarded the guardianship and authority of the man in the family as discrimination that must be abolished, on the grounds that it entrenches the inferiority of women. It affirmed the wife’s right to choose the family name and the place of residence, and her right to the same powers of guardianship over the children as the man. It also called for removing stereotyped images of the woman’s role in upbringing and the family, and for encouraging the equal sharing of all domestic and educational roles between the spouses. Among the most dangerous things the convention required is changing or abolishing laws derived from religion if it deems them discriminatory: it stipulated clearly the obligation to abolish any legal provision “based on religion” that violates the principle of equality. It cited as an example of this the ruling on inheritance in Islam, where the male has the like of the share of two females, and regarded it as discrimination that should be abolished. That is, the philosophy of CEDAW is fundamentally opposed to many definitive Shar’i rulings, to the extent that in practice it abrogates the Shari’ah in what concerns women, because it refuses to recognise any authority above the abstract principle of equality.

The Conflict Between CEDAW and the Islamic Shari’ah

It is no wonder that this convention has met with reservations and objections from Muslim-majority states and other conservative societies. CEDAW’s view of equality collides with a number of Islamic Shar’i rulings that distinguish between man and woman in order to achieve divine justice. Among the most prominent points of conflict:

The obligation to abolish the Shar’i rulings specific to women: As we mentioned, CEDAW requires that all laws that distinguish between the sexes be abolished, even if they rest on religion. This implicitly means demolishing the Islamic legislation relating to the family and personal status. For example:
- In inheritance: Applying the convention calls for equality of male and female in inheritance shares, which contradicts the explicit text of the Qur’an and the Sunnah and the consensus of the Ummah through the ages. A report of one of the CEDAW committees stated clearly that the principle of polygyny and the principle of unequal inheritance both conflict with the right of women to equality with men. International organisations are indeed pressing to abolish the distinction in inheritance in the countries of the Muslim world, even though that demolishes an integrated system of mutual responsibilities prescribed by the Shari’ah. Many Muslim states refused to respond to this provision and preserved the ruling of the Shari’ah in their domestic laws by entering a formal reservation to the second article of the convention. This reservation declares that the state is not bound by any provision that contradicts the rulings of the Islamic Shari’ah.
- In marriage, divorce and guardianship: CEDAW insists on absolute equality between the spouses in all rights relating to marriage, during it and at its dissolution. It does not recognise the concept of the woman’s guardian (wali) in marriage, and sees it as a diminishing of her legal capacity. It also demands that the woman have the same right as the man to end the marriage whenever she wishes, without restrictions specific to her, and with the same ease (as against Islam’s establishing divorce in the hand of the husband, and khul’ and the court as options for the wife according to regulations). The convention also calls for abolishing the man’s guardianship in the family completely, so that the husband is not the head of the family, but both are equal in decision-making. This provision collides directly with His saying, the Exalted: “Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth” (al-Nisa’ 4:34). CEDAW also condemns any distinction in parental rights: it wants the mother to have the same right as the father in guardianship over the children in legislation, custody and making fateful decisions. Islam, even though it strongly involves the mother in custody and care, gives authority and maintenance primarily to the father. Consequently, imposing absolute equality here means stripping the man of the competences of guardianship and maintenance, which disrupts the Shar’i system of family complementarity.
- In freedom of movement and residence: The convention stipulates the woman’s right to freedom of travel and to choose her place of residence and domicile exactly like the man. In Islamic jurisprudence, however, the husband has the right to determine the marital home as long as it is suitable, and the wife must live where her husband lives and move with him except out of necessity. Likewise, the jurists stipulate the husband’s permission for the wife’s travel, to preserve her safety and protect the family. CEDAW regards that as a restriction on her freedom and an unacceptable discrimination. The result it reaches if this formal equality is applied is that the spouses each live in a place, if they wish, on the grounds of independence of decision, so the family loses its true meaning. It may be said that the convention wants to scatter the family without divorce: what does it mean for the wife to choose a place of residence other than her husband’s?! And what remains of the features of the family, its affection and its bonds, after each spouse lives in a separate place?! Abolishing the husband’s authority over the residence and travel leads in practice to dismantling the unity of married life, and to scattering the children between parents who are separated in spirit even if they remain connected legally.
- In the waiting period (‘iddah) and polygyny: Among the Shar’i rulings criticised by the literature that emerged from CEDAW is the waiting period required of the woman, and not the man, upon divorce or the death of the husband, which it regards as inequality. But the waiting period is connected with the rights of pregnancy and lineage and has no counterpart for the man; dropping it would cause the rights of children to be lost and would ignore a biological difference. As for polygyny, it is a clear target of the convention’s attack, since it regards it as flagrant discrimination against women, because the man is allowed to marry more than one wife while the woman is not allowed plurality. The international CEDAW committee recommends banning polygyny completely as a harmful practice that should be ended. This is an expected position within a philosophy of equating everything between the sexes: they say, either plurality for both parties or banning it for both. It is self-evident that a woman’s having several husbands is forbidden by the Shari’ah and unacceptable to human nature, so the equation ends with banning it for the man too. Here we see a conflict with a solution that the wise Shari’ah permitted to treat social problems (such as the large number of widowed or unmarried women, or a wife’s infertility, and the like), within regulations of justice and fairness to the wives. Banning polygyny absolutely may lead to the spread of illicit relationships as an alternative, and to injustice to the second woman, who may be attached to a man in secret without any rights or legal protection, whereas if her marriage were allowed officially, it would be more honourable for her. This is an important social and moral feature that we will address later.

These are some prominent examples of the points of collision between the requirements of CEDAW and the rulings of the Islamic Shari’ah. Many Muslim states realised this fundamental conflict, and entered reservations to some articles of the convention upon signing. They declared that their international obligations under CEDAW would not include what contradicts the Islamic Shari’ah, especially in articles relating to personal status, marriage and inheritance. Some states refrained from signing altogether and did not sign in the first place. The United States of America, although it is a secular liberal state, has not ratified CEDAW because of objections relating to sovereignty and family legislation, considering them a domestic matter that international charters should not dictate. This apprehension gives an indication of the extent of the convention’s interference in the social and value structures of states, such that non-Muslim states too have had reservations about it, seeing in it an extremism in imposing a single cultural vision.

Formal Equality and the Absence of Real Fairness

Critics of CEDAW’s abstract method hold that the equality it calls for is formal rather than substantive: it focuses on the equality of numbers and procedures without looking at actual justice in the results. When, for example, it demands that the spouses enjoy completely equal powers in every decision, that may seem fair on paper, but it may wrong one of them in reality. To illustrate: if the spouses were made equal in the duty of household spending, for example, on the grounds of equality, the working woman would bear more than she can, since she must toil outside just like the man, and then bear pregnancy, childbirth and the care of the children at home without any duty being lightened for her. As a result, equality here turns into a double burden on the woman which she was not required to bear by the Shari’ah. Islam exempted her from maintenance so that she could devote herself to her nurturing family role; if we load upon her the burden of spending too, on the grounds of equality, we exhaust her and wrong her precisely where we wanted to be fair.

Likewise in sharing the roles of the family: in theory CEDAW demands that the father and mother share the upbringing of children and housework equally. This is positive in respect of the husband’s helping his wife, and Islam urged the man to take part in serving his family out of humility. Al-Bukhari narrated in his Sahih (676): Adam narrated to us: Shu’bah narrated to us: al-Hakam narrated to us, from Ibrahim, from al-Aswad, who said: “I asked ‘A’ishah: What did the Prophet ﷺ do in his house? She said: He used to be in the service of his family – meaning serving his family – and when the time of prayer came, he went out to the prayer.” But CEDAW goes beyond moral guidance to imposing identical duties, so that no essential, distinct role is recognised for either parent. The result that has begun to appear in some Western societies is that motherhood itself has lost its sanctity as a function: the woman who chooses to devote herself to her home and children is criticised as if she had betrayed the cause of equality! What is required has become that she compete in the labour market first, while the care of children can be left to nurseries or nannies. This trend has harmed many women and children psychologically and socially, to the point that some moderate women’s voices in the West have acknowledged it. Women may have gained more rights and economic independence, but socially many women suffer the most severe suffering. Women have begun deliberately raising a child without help from its father, and even excluding the father entirely from his child’s life, so that men in turn suffer a kind of harm. This testimony reflects the imbalance of the family in the societies that adopted absolute equality: the woman has paid a high price from her psychological and emotional stability, despite obtaining “rights” equal to the man’s. Like her, the man too has lost his natural role as father and head of the family, and has at times become marginal to the family.

Among the painful social scenes in some countries that adopted extreme egalitarian thought is the marked rise in the proportion of broken families and of children of single mothers. In the United States and Europe, for example, as a result of facilitating relationships outside the framework of marriage and removing the stigma from them, we find that the rates of births outside marriage have risen greatly in recent decades. Many of these children grow up without a present or involved father, which reflects negatively on their emotional and behavioural upbringing. Although these phenomena have multiple causes, it is clear that marginalising the father’s role under the slogan of equality and reducing differences contributed to creating an environment in which the presence of both parents together is regarded as secondary. Legal equality gave women the freedom to bear children apart from marriage, but was the result just to her and to the child? Studies and statistics point to the size of the problem into which women in those societies have fallen by bearing burdens that traditionally lay on the man. Many men have freed themselves from the responsibility of spending on and caring for the family under the claim of women’s independence, so that the Western woman works and spends on herself and her children alone, and is sometimes even given the choice between spending on the child or aborting her pregnancy if she has no partner to help her. Thus we find that absolute equality led in practice to wronging the woman instead of doing her justice: true, she gained freedom of decision, but she often found herself alone in the field, bearing all the burdens.

As for the moral effects of the dominance of the culture of absolute equality, they have appeared in the change of social values and behaviours relating to chastity and family relationships. When the barriers between the sexes were lifted completely on the grounds of equality, and the idea of maximum individual independence spread, the virtues of modesty and family loyalty declined in a number of societies. True, these societies rid themselves of many bad customs, but they lost many high values. Sexual relations before marriage have become the normal state in society, fornication is increasing, and chastity is something that provokes ridicule. These words sum up a bitter paradox: the Western woman obtained sexual freedom and an apparent equality with the man in this domain, but the result was a moral laxity that led to the loss of the virtue of chastity, the spread of passing relationships, and the problems that followed from them, such as illegitimate children, abortion and psychological illnesses. The man was made equal to the woman in satisfying instincts outside the framework of the family, and so the sanctity of the family itself was lost. And all of that under the slogan of freedom of choice and equality in individual rights.

Conservative societies with family and religious values look with great caution at these outcomes. When international conventions push towards changing traditional roles and undermining the internal authority of the family in the name of women’s rights, these societies fear the shaking of the settled moral edifice. The family in our culture is not merely legal arrangements between individuals; it is a sacred entity bound up with religion, morals and the values of sacrifice. Hence any attempt to copy Western egalitarian models by force may lead to dangerous social imbalances: the spread of divorce, young people’s reluctance to marry, the weakening of ties of kinship, the loss of responsibility for raising children, the decline in the level of respect between spouses, and so on. We have indeed seen some effects of intellectual globalisation in our countries: young women who reject the idea of the traditional family entirely and regard it as “slavery”, men who evade their responsibilities on the grounds of women’s independence, a rise in the rates of family disputes because of conflict over powers, and so forth. All these phenomena push us to reconsider the concept of real fairness for women: is it truly achieved by her complete resemblance to the man, or by respecting her difference and her complementary partnership with him?

Conclusion

After this presentation, the essential difference between the method of Islam and the method of absolute equality in women’s issues has become clear to us. Islam made justice a supreme, governing value, and equality a means by which justice is achieved in specific places. Modern egalitarian thought, on the other hand, makes equality an end in itself, even at the expense of justice at times. We have seen how Islamic justice guarantees each sex its full rights according to its nature: it treats alike when equality is the right, and it differentiates when differentiation is the right. The result is a balanced family and social order that honours the woman as mother, wife and daughter in a manner that suits her nature, and honours the man as father, husband and son in a manner that suits his nature, so that they complement each other and do not conflict.

In contrast, the demand for complete sameness between man and woman is contrary to the axioms of reason and nature. If we judge, by reality, that man and woman differ in many matters, then absolute equality between them becomes a disguised injustice. It may seem at first glance that removing any distinction is fairness itself, but when that leads to loading one of them with what he cannot bear, or depriving him of what he needs, then injustice occurs. If values conflict, Islam establishes the more influential value and leaves the lesser; if equality would lead to injustice and the loss of justice, then justice must be given precedence… Equality in this case does not represent a moral value, but injustice.

Real fairness to the woman does not lie in ignoring her femininity and motherhood and making her an exact copy of the man, but in respecting her innate particularity, granting her the rights that suit her, and supporting her in carrying out her role without unfairness. Islam preceded others in laying down this golden rule: justice is giving everyone who has a right their right. It honours the woman as a queen in her home whose maintenance is guaranteed and whose dignity is protected, and likewise it opens to her the doors of public participation, knowledge and work, with regulations that preserve her dignity and morals. It does not compel her into a role she does not want: if she wants to be a working woman or a scholar, that is her right, and if she wants to devote herself to her home and children, that is a great role no less important. As for the vision that pushes the woman by force into the struggle of life under the pretext of independence and equality without regard for her circumstances, it is in reality another kind of compulsion and hidden oppression of the woman. The scholars of the Shari’ah have stated this truth plainly: oppressing the woman is contrary to Islam, and compelling her to be equal to the man (in everything) is also contrary to it.

Finally, in the legal and social comparison between the method of the Shari’ah and the theorising of CEDAW, we find that the Shari’ah excels by the value of balanced justice that takes human reality into account. Yes, the Shari’ah calls for the equality of the woman with the man in many rights and duties, but it is a just equality, not an absolute one: an equality based on real parity, not on denying differences. Any call outside this framework may lead to an arithmetical equality, but it is a human injustice. Islam has guaranteed the woman all her rights as a human being and as a female, and it has not withheld a right from her without giving her something better than it or a compensation for it. Therefore we can say with confidence that the Islamic Shari’ah is more concerned with doing justice to the woman than many modernist propositions that boast of liberating her and then leave her to suffer the consequences of that alone. Reality is the greatest witness: the societies that remained faithful to the guidance of Islam in matters of the family and the sexes enjoy, despite all the challenges, a greater degree of family stability and social security compared with those that embarked on the adventure of absolute equality, when it is no longer the time for regret.

What is required, then, is wise fairness, not blind equality. The issue is not so much the similarity of rights as the justice of the results. The greatest thing we conclude is the rule: if abstract equality conflicts with justice, justice is given precedence without hesitation. By this divine scale alone we ensure that neither sex wrongs the other or themselves. And Allah the Exalted knows best. May Allah send blessings and peace upon our Prophet Muhammad and upon his family and companions, and praise be to Allah, Lord of the worlds.

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