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Human functions, such as and including participation in public life, is not gender- based in the Qur’ān. The text does not attribute explicit exclusive characteristics to either the woman or the man.889 _{While it makes references to the biological function}

of a woman, it does not make any references to the psychological and cultural perceptions associated with mothering.890 _{The Qur’ān does not state that a woman’s}

primary job is child-bearing nor does it say that mothering is her function in society.891 Wadud argues that the Qur’ān itself does not argue for stereotyped roles for either women or men, although there are multiple narratives of references to women and their lives at the time of Qur’ān.892 One controversial area is the mention of Hur-al-Ayn in the Qur’ān. The word Hur-al-Ayn comes from the Jahiliyya Period, and referred to women with clear white/ fair skin.893 They were described as “sensual-youthful, virgin females with large dark eyes, white skin, and

888 _{A few examples include: (a) former prime minister of Pakistan Benazir Bhutto (served 1988-} 1990 and 1993-1996), (b) Indonesian President Megawati Sukarnoputri (elected 2001), (c) former Turkish Prime Minister Tansu Ciller (served 1993-1995) and (d) the Bangladeshi Prime Ministers Begum Khaleda Zia (first elected in 1991) and (e) Sheikh Hasina Wajed (first elected in 1996). 889 _{Wadud, above n 859, at 21.}

890 _{At 22, 26.} 891 _{At 64.} 892 _{At 29.}

893 _{4l Edward William Lane, An Arabic—English Lexicon, 8 vols. (London: Librarie du Liban,} 1980), Part Jim To Ta, p. 666; As referred to by Wadud, At 55.

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a pliant character …”,894 _{and are promised to men in the afterlife in heaven.}

According to Wadud, this represented what was culturally appropriate in terms of the desires of the Arabs at the time, but is no longer applicable after the migration of the Prophet to Madinah. She argued that verses in the Qur’ān must not be interpreted literally, especially when the message of the Qur’ān was completed in Madinah.895 The verses in the Qur’ān in the Makkan period are sometimes different from those in the Madinah period, in terms of the promises for the afterlife. The companions of heaven, in generic terms are thereby entitled to “gardens underneath which rivers flow, and pure azwaj [spouse], and contentment from Allah (3:15)”.896 Furthermore, to give respect,897 Qur’ān also does not refer to women by their names, apart from references to Mary (mother of Jesus). This is also representative of a culture where women did not have their own individual existence, independent from their husbands, fathers or brothers.898

In challenging the gross socioeconomic disparities,899 Qur’ān introduced many social reforms to empower the “weaker segments of the community: the poor, the orphans, women, slaves”. 900 _{The egalitarian order “announced a severe}

denunciation of the economic disequilibrium and social inequalities prevalent in contemporary commercial Meccan society”.901 _{The concept of equality in the}

Qur’ān annihilates all distinctions except for goodness and virtue (taqwa).902

894 _{42 Fatna A. Sabbah, Woman in the Muslim Unconscious, translated by Mary Jo Lakeland from} the French La Femme dans I’inconscient Musulman (New York: Pergamon Press, 1984), at. 95; As referred to by Wadud, at 55.

895 _{At 59.} 896 _{At 55.} 897 _{At 32.}

898 _{For examples, see. At 33.}

899 _{Fazlur Rahman Major Themes of the Qur’ān (Bibliotheca Islamica, (currently printed by Chicago} University Press) 1979, at 25.

900

901 _{Rahman, above n 899, at 25.}

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Fazlur argues that unless the legal enactments in the Qur’ān are distinguished between the moral injunctions, the understanding of the Qur’ān can go fundamentally wrong.903 For example, many Muslims argue for polygamy, but the actual text in the Qur’ān implies a different position. Referring to a particular context of orphaned girls, the Qur’ān states:904

If you fear that you may do justice to orphans, then marry from among [orphaned] women such as you like, two, three, or four. But if you fear you will not be fair [to your wives], then [marry] only one; that is the safest course…God gives you His decision concerning them, and what is being recited to you in the Book concerning orphan women to whom you do not give their due, but you would rather marry them, and [also concerning younger] and weaker children… You shall never be able to do justice among women [when you take more than one wife at a time], no matter how much you desire.

The operative words in these verses are ‘orphan’ and ‘justice’, little used by the proponents of polygamy, and indicate not only that the permission for four wives is context specific, and doing justice amongst wives, is “in the nature of things, impossible.”905

The Qur’ān says “and for women there are rights [over against men] commensurate with the duties [they owe men] – but men are one degree higher”.906 In a different verse the Qur’ān says “Men are in charge of women because God has given some humans excellence over others and because men have the liability of expenditure [on women]”.907 _{Fazlur argues that this is purely functional superiority and in the}

right interpretation, “if a woman becomes economically sufficient, by inheritance or earning, and contributes to the household expenditure, the male’s superiority is

903 _{At 32.}

904 _{At 32; Surah Al-Nisa 2, 127 and 129, Qur’ān.} 905 _{At 32.}

906 _{At 33; Surah Al-Baqarah, 228, Qur’ān.} 907 _{At 33; Surah Al-Nisa, 34, Qur’ān.}

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reduced accordingly”.908 Again, these provisions must be read in context of the historical settings.909

Women’s inequality is also seen in evidence and testimony. In financial transactions, it is argued that one man’s witness is equal to two women’s. This however, was traditional practice based on the fact that not many women were involved in financial transactions at that time.910 Moreover, Qur’ānic verse 2:282 is often used to determine that the value of a woman’s testimony in court over financial transactions to be corroborated by another woman is used as a guide to say that a woman’s testimony is only half of that of a man. There are Qur’ānic verses, such as 24:6-9 where the evidence of one woman outweighs that of a man. For example, in the case a husband accuses the wife of adultery, the oath of the woman is sufficient to avert punishment.911

Patriarchy is a running theme in the Qur’ān, mostly reflecting the Arabian society at that time.912 The qualification for leadership was based on capacity for such positions in the political and the financial sphere and as such, only men in the Arabian society had privileges, experiences and other advantages, making them, often, the best suited for these positions.913 Despite this, the Qur’ān never says that men are natural leaders, and furthermore, Qur’ān, apart from the Prophets, Bilqis is the only ruler Qur’ān uses in reference to leadership characteristics; wisdom and independence, both of which were held by a woman.914

908 _{At 33.}

909 _{Men in Arabia were financially responsible for their wives, earning and spending the money.} 910 _{Rahman, above n 899, at 33.}

911 _{Verses 24:6-9 of the Qur’ān states “As for those who accuse their wives but have no witnesses} except themselves; let the testimony of one of them be four testimonies, (swearing) by Allah that he is of those who speak the truth; and yet a fifth, invoking the curse of Allah on him if he is of those who lie. And it shall avert the punishment from her if she bear witness before Allah four times that the thing he sayeth is indeed false. And a fifth (time) that the wrath of Allah be upon her if he speaketh the truth.”

912 _{Wadud, above n 859, at 88.} 913 _{At 88.}

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The Qur’ān celebrated the rule of Bilqis, the Queen of Sheba, by giving special reference to her political and religious practices.915 Bilqis and her people worshipped the sun.916 The Qur’ān notes that when Solomon sent her a letter, starting with ‘In the name of Allah’, Bilqis practiced protocol and diplomacy, especially in the way that she reacted by sending a gift, demonstrated her worldly knowledge of peaceful politics, spiritual knowledge, the ability to take decisions independently and decide what was best for her people.917 _{The Qur’ān shows that}

“her judgment was better than the norm, and that she independently demonstrated that better judgment.”918

Whilst the Qur’ān is silent on issues of whether women can assume positions of decision-making within the State, the majority of Islamic jurists have claimed that women cannot be judges919 or heads of States. Abu Hanifa was the only major school of Islamic jurisprudence that opined that a woman can be a judge, though only in civil matters.920 These opinions are however, not based on the Qur’ān or the

Ḥadīth.921 _{In Islamic history, women have assumed all legitimate work available in}

society that matched their skills and expertise.922

In every epoch of Islamic history, including the time of the Prophet, one sees Muslim women engaged in every profession that suited them. They worked as nurses, teachers, and even as combatants by the side of men when necessary, in addition to being singers, hair-dressers, cooks, etc. Caliph Umar employed a lady, Shifa’bint ‘Abdulla as inspector in the market at the capital [Madinah] as Ibn Hajar [Isabah] records. The same lady taught Hafsah, wife of the Prophet, how to write and read. The

915 _{At 40.}

916 _{Verse 27:24, Qur’an.} 917 _{Wadud, above n 859, at 41.} 918 _{At 42.}

919 _{Mashood A Baderin International Human Rights and Islamic Law (OUP Oxford, Oxford ; New} York, 2003) at 180.

920 _{At 180.} 921 _{At 180.}

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jurists admit the possibility of women being appointed as judges of tribunals, and there are several examples of the kind.

Despite these, women are excluded from public life in many Muslim countries. This analysis indicates that there is no real conflict between Shari’ah and CEDAW, in terms of a right to public life for women. Moreover, this analysis also shows that certain discriminatory practices against women amongst Muslims are not Islamic, and have no fundamental basis in the Qur’ān or Ḥadīth.923