Man and Woman before the Shari'ah Commandments

Islam came with the Shari'ah commandments (Takaleef Shariyya), which it obliged on the man and the woman. And when it clarified the Shari'ah rules (Ahkam Shariyya) which treat the actions of each of them, it did not give the issue of equality (Musawa) or comparison (Mufadala) any attention nor did it give it the slightest consideration. Rather it viewed that there was a specific problem which required a solution. So, it treated it in its capacity as a specific problem regardless of whether it was a problem pertaining to a man or a woman. Thus, the solution was for the action of a human, for the problem-incident, and not for the man or woman. Therefore, the question of equality or the lack of equality between the man and woman is not the subject of discussion. This expression is not present in the Islamic legislation. Rather what exists is the Shari'ah rule (Hukm Shari') of an incident, which has resulted from a certain human whether it be a man or a woman.

Hence, equality between men and women is not an issue for discussion, nor is it an issue which forms a subject in the social system. The woman being equal to the man, or, the man being equal to the woman is not a significant matter which has influence over the societal life and nor is it a problem which is likely to occur in the Islamic life. It is but a phrase which is only found in the West. None from amongst the Muslims holds this view except those imitating the West, which has violated the woman's natural rights in her capacity as a human. Hence, she called for the restitution of these rights. This demand used the discussion about equality as a means to obtain these rights. As for Islam, it has nothing to do with these terms because it has established its social system on a firm basis which ensures communal and societal cohesion and elevation. And it secured for the man and woman true happiness which befits the dignity and honour of humankind whom Allah (swt) has honoured in His (swt) saying: 

''And indeed We have honoured the children of Adam'' [Al- Isra: 70] 

Thus, when Islam granted the woman rights (Huquq) and enjoined on her certain obligations and granted the man rights and enjoined on him certain obligations, it only assigned rights and obligations which related to their interests as defined by the Legislator. It also provided solutions for their actions, in their capacity as specific actions of a particular human. Therefore, the legislator assigned the rights and obligations in the same manner when their human nature necessitated they should be granted in the same manner and it assigned them in a disparate manner when the nature of each necessitated such disparity. This equivalence in the rights and obligations is not termed equality just as it is not called inequality. Similarly as the disparity in the rights and obligations is not understood to mean inequality or equality. This is because when Islam views the community, whether comprising of men or women, it looks at it in its capacity as a community of humans and nothing else. It is of the nature of a human community that it consists of men and women. Allah (swt) said:


''Oh mankind! Be dutiful to your Lord, Who created you from a single person (Adam), and from him created his wife (Eve), and from them both He created many men and women''
[An- Nisa: 1] 

The Shari'ah commandments (Takaleef shariyya) have been legislated upon this basis, and according to it, the rights and obligations of men and women have been assigned. When the rights and obligations are for the human, i.e. the obligations (Takaleef) which relate to Man in his capacity as a human, then you will find equivalence in these rights and obligations, i.e. you will find the equivalence in the commandments (Takaleef). Thus, the rights and obligations will be for all, and assigned to all men and women as one, without difference or disparity. Hence, you will find that Islam did not differentiate between men and women when it invited people to the Iman (belief). Nor did it differentiate between men and women in the commandment of carrying the call to Islam. It made the commandments relating to worships such as prayer, fasting, Hajj and Zakat the same in terms of their legal obligation. And it made the description of the moral characteristics which have come with the Shari'ah rules as morals for men and women without distinction. It also made the rules of societal transactions (Mu'amalat) such as buying, renting, representation, guardianship and other such societal transactions relating to mankind, the same for men and women. And it imposed punishments for breaching the rules of Allah such as the determined punishments (Hudud), criminal laws (Jinayat) and discretional chastisements (Ta'zeer) on men and women without discrimination in their capacity as humans. In additon Islam made learning and teaching an obligation for Muslims with no difference between men and women. So, in this manner Allah (swt) has legislated all the rules pertaining to humans in their capacity as humans, the same for men and women without distinction. So, the commandments from this perspective are all the same, and the rights and obligations are also the same. The verses and Ahadith which are found with regards to such rules have come as general ('Amm) and inclusive (Shaamil) for humans in their capacity as humans, and for the believers in their capacity as believers. Indeed, many verses stipulate that the legal obligation (Takleef) is for the male and for the female. Allah (swt) said: 

''Verily, the Muslims, men and women, the believers men and women, and the men and women who are obedient (to Allah), the men and women who are patient, the men and women who are humble, the men and women who give Sadaqat, and the fasting men and women, and the men and women who guard their chastity, and the men and women who remember Allah much. Allah has prepared for them forgiveness and a great reward'' [Al- Ahzab: 35]
Also Allah (swt) said: 

''It is not fitting for a believer, man or woman, when Allah and His messenger have decreed a matter that they should have any option in their decision'' [Al- Ahzab: 36], 

and He (swt) said: 

''Whoever works righteousness, whether male or female, while he (or she) is a true believer verily, to him will give a good life, and We shall pay them certainly a reward in proportion to the best of what they used to do'' [An- Nahl: 97] 

And He (swt) said: 

''And whosoever does righteous deeds, male or female, and is a true believer, such will enter Paradise and not the least injustice will be done to them even to the size of a naqir (speck on the back of a date-stone)'' [An- Nisa: 124] 

And He (swt) said: 

''So their Lord accepted of them, never will I allow to be lost the work of any of you, be he male or female. You are (members) one of another'' [Al- Imran:195]. 

And He (swt) said:

''There is a share for men and a share for women from what is left by parents and those nearest related, whether the property be small or large - a legal share'' [An-Nisa: 7] 

And He (swt) said:

''For men there is a reward for what they have earned, (and likewise) for women there is a reward for what they have earned'' [An- Nisa: 32] 

Thus we find all the Shari'ah rules relate to humans as humans whatever these rules are and however disparate and numerous they may be. Allah has legislated them as one, equally for the man and woman. Although that should not be considered as equality between men and women. Rather, they are rules legislated for humans, for the man and woman without distinction because each one is a human. And these rules are a speech from Allah (swt) relating to the actions of humans. 

When these rights and obligations, and these Shari'ah commandments relate to the nature of a female, in her description as a female, and they relate to the nature of her position in the community and her place in society, or when they relate to the nature of the man in his description as a male, and they relate to the nature of his position in the community and his place in society; then these rights and obligations i.e. these commandments (Takaleef) will be disparate between the man and woman. This is because they are not a general solution for humans but a solution for this type of human whose attribute of human nature is different from the other. Therefore, there must be a solution for this type of human, not for all humans. Hence, the testimony (Shahada) of two women is equal to the testimony of one man in actions which take place amongst the male community and in the public life. Such as the woman's testimony concerning rights and societal transactions (Mu'amalat). Allah (swt) said: 

''And get two witnesses out of your own men. And if there are not two men (available), then a man and two women, such as you agree for witnesses, so that if one of them (two women) errs, the other can remind her'' [Al- Baqarah: 282] 

The testimony of women is accepted on its own, in matters which take place amongst the female community, where there are no men present, such as a crime which is committed in the ladies' room. The testimony of one woman is sufficient for matters in which only women are familiar, such as their testimony regarding questions of virginity (Bakara), matronhood (Thayuba) and suckling (Rada'a). This is because the Messenger accepted the testimony of a single woman with regards to suckling. And in certain cases Islam made the share of inheritance of the woman half the share of the man. Allah (swt) said'' 

''Allah commands you as regards your children's inheritance; to the male a portion equal to that of two females'' [An- Nisa: 11] 

This is in connection to the agnates ('Asaba) such as sons, full brothers and half brothers through the same father, because the reality of the female with regards to this is that her financial maintenance (Nafaqah) is the obligation of the brother if she is poor even if she was able to work. And in certain cases Islam made the share of the woman the same as that of the man. Allah (swt) said: 

''If the man or woman whose inheritance is in question has left neither ascendants nor descendants, but has left a brother or a sister, each one of them receives a sixth; but if they were more than two, they share a third'' [An- Nisa: 12] 

This is with respect to the half brothers through the same mother because the Kalala is the one cut off without descendants, ascendants, full brothers or half brothers through the father. It is clear that what is meant by 'a brother or a sister' is the half brothers from the same mother. The reality of the female in this regard is that her financial maintenance (Nafaqah) is not an obligation on her half brother from the same mother because even though he is a mahram, he is however not one of those on whom her maintenance has been made compulsory. 

And Islam has ordered that the attire of women be different from men, just as it has ordered that the attire of men should be different from the attire of women. It forbade the one from resembling the other in attire, and from resembling what is particular to one gender which distinguishes it from another gender, such as adorning certain parts of the body. It has been narrated from Abu Hurayra (ra) that he said: ''The Messenger of Allah cursed the man who wears the clothing of women, and the woman who wears the clothing of men''. It has been narrated from Ibn Abu Mulayka that he said: It was said to A'isha; ''Did the women wear shoes''? She said: ''The Messenger of Allah cursed the manliness (Rajla) amongst the women''. It has been narrated that 'Abd Allah b. 'Umru said: ''I heard the Messenger of Allah saying ''Women who resemble men don't belong to us''. And Ibn 'Abbas said ''The Prophet cursed the effeminate amongst men and the manly amongst women''. And He said ''Expel them from your houses''. And he (Ibn 'Abbas) said: ''so the Prophet expelled so-and-so out and 'Umar threw out such and such person''. And in one variant: ''The Messenger of Allah cursed the men who seek to resemble women and the women who seek to resemble men''. 

Also Islam made the dowry (Sadaq) i.e. the mahr obligatory on the man to give to the woman. It made it her right (Haqq) even though the (sexual) enjoyment is shared by both and not for the man only. Allah (swt) said: 

''And give to the women (whom you marry) their mahr with a good heart, but if they, of their own good pleasure, remit any part of it to you, take it, and enjoy it without fear of any harm''
[An- Nisa: 4] 

The meaning of ''Nihlatan'' (i.e. give with a good heart) is that it is a gift since the bridal dower is a gift. It is not in exchange for the consummation of the marriage as some would imagine. And He (peace and blessing be upon him) said to the sahabah who married the woman who offered herself in marriage: ''Do you have anything to give her?''. He looked around but did not find anything. So the Prophet said ''look for even an iron ring''. But he did not find anything so the Prophet gave him in marriage to her with what he memorised from the Qur'an that he could teach her with as dower.

Allah (swt) made work, for the earning of money, an obligation (Fard) on the man but did not make it obligatory for the woman. Rather it is permitted for her whether she wishes to work or does not wish to work. Allah (swt) said: 

''Let the rich man (zu sa'atin) spend according to his means''. [At- Talaq: 7] 

The word 'zu' is not used except in the masculine gender. And He (swt) says: 

''But the father of the child shall bear the cost of the mother's food and clothing'' 
[Al-Baqarah: 233] 

Thus, He enjoined the financial maintenance (Nafaqah) on the male.

And Islam has assigned to the man the guardianship (Qiwama) over women. It also gave them the right to lead (Qiyada), order (Amr) and prohibit (Nahy). Allah (swt) said: 


''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. Therefore the righteous women are devoutly obedient, and guard in their husbands absence what Allah orders them to guard. As to those women on whose part you see rebellion, first admonish them, next refuse to share their beds and last beat them (lightly), but if they return to obedience, seek not against them any means (of annoyance): Surely Allah is Ever Most High, Most Great'' 
[An- Nisa: 34] 

Allah explains that this guardianship (Qiwama) is for the man because of the extra responsibilities Allah (swt) has imposed on him such as ruling, leading the prayer and the guardianship (Wilaya) in marriage and placed (the power of unilateral) divorce in the hands of the man. Allah (swt) said:

''Because Allah has made one of them to excel (Fadl) the other'' [An- Nisa: 34] 

This guardianship (Qiwama) has also been assigned to him due to the responsibilities placed on him such as the obligation of providing the expenses in terms of the dower and provisions. Thus, Allah (swt) said: 

''Because they spend (to support them) from their means'' [An- Nisa: 34] 

Just as He has given the man the right to discipline his wife by beautiful exhortation, separating from her in bed or beating her lightly as much as the offence warrants. That is, when she is rebellious, i.e. disobeys her husband and rebels against him. Islam gave the woman the right of custody over the minor, boy or girl, and barred the man from this custody. Islam also gave the woman the right to manage the expenditure for the children if their father delays their expenses or is miserly towards them. The man is prevented in this case from managing the expenses. Hind came to the Messenger of Allah and said ''O Messenger of Allah ! Indeed Abu Sufyan is a miserly man. He does not provide me with the maintenance that my children and I need''. So the Messenger of Allah told her ''Take that which suffices you and your children in a fitting manner (Bil ma'roof)''. The judge will force him to provide her with nafaqah and give her the right to manage the expenditure and he will not be allowed to control the expenses in this case. 

Thus, Islam came with different rules, some of which are particular to men and some of which are special to women. And it distinguished between men and women with regards to a section of these rules and ordered them to accept what Allah (swt) has specially assigned for them in terms of these rules and He forbade them from envying each other, and from desiring things in which Allah (swt) has preferred one over the other. And He (swt) said: 

''And wish not for the things in which Allah has made some of you to excel others. For men there is allotted from what they have earned, (and likewise) from women there is allotted for what they have earned'' [An- Nisa: 32] 

This specification (Takhsees) does not mean inequality. Rather it is a solution for the actions of the female in her capacity as a female, and as well, a solution for the actions of the male in his capacity as a male. All of these actions have been addressed in the speech of the Legislator which relates to the actions of the servants. If all of their realities are studied it becomes clear that the solution is for the problem of a particular type of human in the capacity of a certain type, and it should differ from the solution which is for a human in his/her capacity as a human. The perspective of equality or inequality is not considered because it is not the subject of study. What is noted is the fact that it is a specific solution for a specific human. And this is the nature of the disparity in the rules concerning the men and women with respect to the disparate rules that have been mentioned. In any case, they are a solution for the problem of a human, whether it is the same solution for both the man and the woman such as seeking knowledge, or it is disparate between them such as the disparity concerning the definition of the 'Awrah for men and women. This does not mean discrimination between humans or that it is a discussion about equality or inequality. As for what is mentioned in the report (Athar) that women are deficient intellectually and in terms of their deen; what is meant is in terms of the resultant effect, with regards to the mind and deen. It does not mean there is a deficiency in their intellect or in their adherence to the deen since, the intellect is the same in terms of the natural characteristics (Fitra) of men and woman and adherence to the deen is also the same in terms of the belief and action of the men and the women. The deficiency that is intended in this report is in terms of the testimony of the woman, by making the testimony of two women equal to that of one man. It also refers to the deficiency in the number of days the woman prays, because of her abstention from prayer during her days of menstruation (Hayd) each month and in the postnatal period (Nifas). As well as of her abstinence from fasting during menstruation and after childbirth (Nifas) in Ramadhan. 

This is the subject of the rights and obligations, i.e. the Shari'ah commandments, which Allah has legislated for the human in his capacity as a human and for each gender of human, male and female. This is in terms of legislating for him in his capacity as one who has a certain gender and a human at the same time. It is not intended to distinguish the one from the other, just as nothing is considered in terms of the issues of equality or inequality.

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