Características de la comunicación conyugal

The creation of equal rights for women through an international human rights instrument is a historical moment for proponents of women’s rights. However, the regulatory strength of any human rights instrument of this nature eventually lies within the domestic bodies ratifying this Convention. Many States are not fully in agreement with the enumerated rights in CEDAW and some States are unable to commit to these human rights for economic, social and cultural reasons.850 There are significant difficulties in the application of the non-discrimination principles for many reasons. These problems begin with the understanding of the terms equality and discrimination. For example, in many parts of the world, having different evidentiary burdens for men and women is not considered discriminatory.851 Furthermore, even if there are sex/ gender-based distinctions, they are rarely

848 _{Maysa Bydoon “Reservations on the Convention on the Elimination of All Forms of} Discrimination against Women (CEDAW) Based on Islam and its Practical Applications in Jordan: Legal Perspectives” (2011) 25 Arab LQ 51; Andrew C Byrnes and Marsha Freeman The Impact of the CEDAW Convention: Paths to Equality (UNSW Law Research Paper No.2012–7 Social Science Research Network 2012); Cheshmak Farhoumand-Sims “CEDAW and Afghanistan” (2009) 11 Journal of International Women’s Studies 136; Ann Elizabeth Mayer “Reflections on the Proposed United States Reservations to CEDAW: Should the Constitution Be an Obstacle to Human Rights” (1995) 23 Hastings Const LQ 727; Michele Brandt and Jeffrey A Kaplan “Tension between Women’s Rights and Religious Rights: Reservations to Cedaw by Egypt, Bangladesh and Tunisia, The” (1995) 12 J L & Religion 105; Brandt and Kaplan, above n 721.

849 _{Ann Mayer Elizabeth “Islamic Reservations to Human Rights Conventions” in Recht van de} Islam (1988) at 25–45.

850 _{See Ryan Goodman & Derek Jinks “How to Influence States: Socialization and International} Human Rights Law” (2004) 54 DUKE L.J. 621; Oona A. Hathaway “Do Human Rights Treaties Make a Difference?” (2002) 111 YALE L.J, 1935.

851 _{Alda Facio and Martha I Morgan Equity or Equality for Women; Understanding CEDAWs} Equality Principles (TM Graphic Sdn Bhd, Kuala Lampur, Malaysia, 2009) at 10.

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regarded as discrimination against women. 852 The inconsistencies in the interpretation and application of these concepts and understanding of the rights have greatly minimised its potential to address inequalities.853

Rights in Islam are derived from two main sources: Qur’ān and Ḥadīth (Prophetic tradition).854 _{What Muslims call Shari’ah today, started with the collection and}

gathering of authoritative records of Ḥadīth (actions, sayings and things upon which Prophet Mohamed was silent) and the development of a juridical methodology (usul-al-fiqh) “to regulate the derivation of principles and rules from the Qur’ān and Ḥadīth”.855 The developing jurisprudence was thus influenced by the surrounding political, social and demographic factors in the eight and ninth century CE.856 To understand the Qur’ān, references must be made to the volumes of literary criticism and hermeneutical theory forwarded by Muslim jurists. This must be well differentiated from the fact that Shari’ah, the contextual interpretation of the source, is not the command in itself.857 The process of interpretation and re- interpretation of the Qur’ān and Ḥadīth, are human, not divine.858 Consideration must also be made of the fact that women were totally excluded from taking part in this process of interpretation.859

852 _{CEDAW defines discrimination in article 1 of the Convention as “any distinction, exclusion or} restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.

853 _{MacNaughton, above n 473, at 1; Also see for example, UN Human Rights Committee (HRC),} General Comment No. 18, Non-Discrimination (1989), Compilations of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. No. HRI/GEN/1/Rev.6 (2003), at 146.

854 _{Abdullahi Ahmed An-Na’im “Human Rights, Universality and Sovereignty: The Irrelevance and} Relevance of Sharia” (2013) 4 Glob Policy 401 at 401.Quranic Verse (al-Hashr) 59:7 states “And whatsoever the Messenger gives you, take it; and whatsoever he forbids you, abstain (from it). And fear Allah …”.

855 _{At 401.} 856 _{At 402.} 857 _{At 402.} 858 _{At 401, 406.}

859 _{See, Amina Wadud Qur’an and Women: Reading the Sacred Text from a Woman’s Perspective} (Oxford University Press, New York, Oxford, 1999).

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As the founding document of the religion, the Qur’ān was revolutionary in many aspects. It provided more protection and rights to women than any other text of its time and gave women rights to inheritance, restricted polygamy, prohibited female infanticide and gave women the ownership of mahr (the closest term - dowry).860

Muslim women enjoyed full legal equality, owned property and also enjoyed full rights in marriage and divorce,861 _{at a time when most countries in the world had}

not introduced these in their legal systems. Thus, women enjoyed both public and the private spheres of life.862 These features of Islam also show that Qur’ānic injunctions give a woman complete control over her earnings and possessions and do not require her to spend on her marriage. Islam had accorded women civil, political and property rights, including rights of inheritance. A wife under Islamic law, may seek a dissolution of the marriage on the grounds that the husband is either incapable of or is failing to maintain the marital relationship. A daughter receives only one half of the inheritance in comparison to a son. However, a son, will go on to have multiple financial responsibilities that a daughter will not have to bear. Inheritance rights are crucial for Muslim women because distribution and control of property and assets significantly affect their ability to enjoy stable and fulfilling lives and to exercise their rights.

Based on the ideology of male guardianship over females, Shari’ah law today has defined specific roles for men and women within marriage and family life.863 Most contradictions in terms of rights under Islam and under human rights law, exist in the area of family matters; marriage, divorce, child custody and inheritance. For example, discrimination against women can be manifested in the practice of polygamy, divorce, men being considered as the rightful and natural guardian of children, domestic violence, and travel or outside work, and a strongly emphasized

860 _{Guity Nashat Women and Revolution in Iran (Westview Press, Colorado, 1983) at 38; Also see,} Ann Elizabeth Mayer Islam and Human Rights (1st _{ed, Westview Press, Colorado, 1991) at 94.} 861 _{Mayer, above n 860, at 94. Also see Wadud, above n 859, at 9.}

862 _{Mayer, above n 860, at 94.} 863 _{An-Na’im, above n 854, at 405.}

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traditional gender role and stereotyped attitude towards women. Patriarchal interpretation of the Islamic Sharia law along with traditional practices and customs created an unequal situation where men get priority and superiority in the family relations which consequently put women in the situation of low self-esteem and powerlessness. Women continue to suffer profound and pervasive human rights violations, such as gender-based violence in the public and private spheres.

There is no text in the Qur’ān or the Ḥadīth which directly forbids women taking positions of leadership within the State such as becoming a president, a prime- minister, and minister of the state or a judge. Muslim jurists who say that women are not allowed to take on senior positions within the State, base their arguments on the following Qur’ānic verse:864

Men are the protectors and maintainers of women, because Allah has made one of them to excel the other, and because they spend [to support them] from their means.

Islamic jurists have in the past avoided discussing women’s leadership and decision-making rights. Some argue that women are not qualified to take positions of responsibility within the State, particularly that of head of State, or becoming a judge, although women who were directly related to the Prophet, and included his wives and his daughters, have taken such positions of responsibility in the history. The Qur’ān has specific provisions in terms of equal education for both men and women, and also right to participate in the public life of their countries.

In 1999, Amina Wadud argued in Qur’ān and Woman: Rereading the Sacred Text

from a Woman’s Perspective, that there is no gender bias, precedence, or prejudice

in the essential language of the Qur’ān.865 The hermeneutic methodology adopted allowed the reading of the text, its context, the grammatical constructions and the

864 _{Surah Al-Nisa (4), Verse 34, Qur’ān.} 865 _{Wadud, above n 859.}

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text as a whole, to arrive at a better understanding of the Qur’ānic text.866 She claims that the lack of a proper place within historical texts for women is not in fact the absence of women’s voice in history, but a critical indication of women’s lack of voice from the period of Qur’ānic interpretation.867 All the text in the Qur’ān were revealed in a specific time in history within a specific circumstance, and are given expression relative to those circumstances.868 According to Wadud, verses in the Qur’ān must be analysed using the traditional method of tafsir al Qur’ān bi al

Qur’ān (interpretation of the Qur’ān based on the Qur’ān itself). This involves the

reading of the verse in light of its context, similar language and syntactical structures used elsewhere in the Qur’ān, overriding Qur’ānic principles in the context of discussions on similar topics in the Qur’ān, the context of the Qur’ānic world-view.869 Using this methodology to analyse the text, Wadud found that the

Qur’ān itself does not have gender specific roles.870 _{However, some injunctions in}

the Qur’ān are related to certain cultural practices in Arabia at the time of its revelation.871 For example, women from wealthy and powerful tribes were veiled to indicate protection; however, the principle informing such veiling at that time was indicating modesty and status, as opposed to representing seclusion.872

Mayer claims that international human rights cannot be restricted by reference to Islamic law, Shari’ah.873 _{Mayer, in Islam and Human Rights, argues that to view}

international human rights as inappropriate for Islamic countries is a misguided conception874 and there is insufficient literature to make such claims.875 Many

866 _{At 1 and 3.} 867 _{At 2.} 868 _{At 4.} 869 _{At 5.} 870 _{At 8.} 871 _{At 9.} 872 _{At 10.} 873 _{Mayer, above n 860, at 64.}

874 _{Ann Elizabeth Mayer Islam and Human Rights (5}th _{ed, Westview Press, Colorado, 2013) at} Chapter 1; Mayer, above n 860, at xiii–xvi.

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countries believe that international human rights are in conflict with Shari’ah rights for women, although, the reasons for these reservations remain largely unexplained.876 According to An-Na’im, it actually should not matter whether Islamic Shari’ah is in conflict with human rights or not because there is no religious obligation to follow Shari’ah, and following it is a political decision made by the State.877 However, perceptions of Shari’ah “influence the legitimacy and practical efficacy” of the international human rights norms within these communities, the domestic law and practice.878 _{Islamic countries in particular, have entered}

reservations arguing that those provisions in CEDAW were in conflict with Shari’ah, Islamic law practiced in those States. Islamic and non-Islamic scholars alike, have argued that rights under Islamic law, are gendered. Laws on marriage, inheritance, and socially acceptable behaviour such as veiling and domestic violence for example, give superiority to men over women. Such religious practices affect the implementation of international human rights frameworks such as CEDAW at the domestic level. This necessitates transformative discourses on the conceptions of Shari’ah.879

Islam, at a doctrinal level, has both egalitarian and non-egalitarian concepts.880 There are historical narratives to support the egalitarian and humane spirits of the former Muslim rulers and the Prophet.881 A good person in Islam, is the most pious person, irrespective of sex/gender. Equality as a concept, however, is different in Islam, compared with the Western conception, which views equality as absolute equality.882 Western conceptions of human rights are based on notions of individualism, liberalism, democracy, free markets, separation of the Church and

876 _{See, Mayer, above n 849, at 25–45.} 877 _{An-Na’im, above n 854, at 401.} 878 _{At 401.}

879 _{At 401.}

880 _{Mayer, above n 860, at 79.} 881 _{At 79.}

882 _{At 80; Katerina Dalacoura Islam, Liberalism and Human Rights (I B Tauris, London; New York,} 2003) at 39.

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State, and often have little resonance in non-Western cultures. Mayer claims that there is a fundamental clash between the rights conceptions in Islam and in the international human rights treaties. Muslims often argue that although women are accorded inferior status, men and women are equal in Islam. From a Shari’ah based perspective, such discrimination against women is in line with the conception of equality. National equal protection clauses are, therefore, accordingly modified or interpreted to accommodate the forms of discrimination, permitted under Shari’ah.883 _{Moreover, Shari’ah law is largely unspecified, which gives unlimited}

powers to the State in terms of defining and ensuring rights to its citizens.884 Thus there is no real effort to align the conceptions of equality between Islamic law and international human rights law.885 Mayer argues that “it is disingenuous to talk about equality before the law without addressing the problems posed by discriminatory Shari’ah rules” which deny women equal rights and freedoms.886

Moreover, States Parties cannot avoid their obligations under a human rights treaty based on religion.887 Non-recognition, or the limited recognition of these norms at the local level, has a significant impact on the success of the human rights treaties at the local level, and therefore needs careful consideration in this section.

The Qur’ān contains verses that may be interpreted to permit or support the role of women in public life, such as its record of Queen of Sheba, without negating the validity of her role as a leader. Further, Prophetic Hadith provides numerous examples of women having public leadership roles. Aisha Abu Bakr, one of Prophet Muhammad’s wives, actively participated in political and public life. Often accompanying the Prophet to battles, she even led an army at the Battle of the

Camel. She is also one of the most renowned and credible narrators of the Hadith (the life of the Prophet). In the more recent history of the world, a great majority of

883 _{Mayer, above n 860, at 84.} 884 _{At 64.} 885 _{At 80–81.} 886 _{At 81.} 887 _{At 81.}

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Muslim countries have had a strong female head of State.888 Though leadership opportunities for Muslim women are restricted by using religious texts and continue to be restricted, earlier generations had a different understanding of women’s roles. Despite these traditions, and also modern developments and greater inclusion of Muslim women in public life, there are Muslims who maintain that the ideal Muslim woman should confine herself to the role of mother and wife.