Keywords

3.1 Introduction

The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) prompts religious-moral arguments, despite being rarely used to influence public policy in other areas. This creates a space for dialogue, but a genuine Islamic response has been lacking. States and non-state actors use traditional fiqh (jurisprudence)—incorrectly referred to as the Shariah—to either accept or reject the treaty. However, this approach neglects the purposeful, connected, and holistic nature of Revelation including its sensitivity to diverse contexts and its guidance pertaining to the advancement of women’s interests in today’s world.

The author aims to come to a view on the correct approach to women’s position and rights in Islam, upon which policy can then be formulated, using the new maqasid methodology (NMM).Footnote 1 This chapter argues for a specific answer to that question and sets out tentative conclusions. The religious-moral question of women’s treatment cannot be subject to political calculations and historical compromises with traditional religious bodies. A genuine Islamic response is both practical and future-oriented, committed to rectifying women’s rights, which may or may not involve ratification and implementation of CEDAW, while working toward a future that may render the treaty obsolete.

The paper proposes a transcendent and holistic alternative to the current policy paradigm, calling for fundamental changes in the approach to women’s rights, both for those referencing Islam and for those who seek to understand and respect the views of a significant portion of women, both Muslim and non-Muslim. The assessment and response to CEDAW must take into account major governance questions, including market organization, while recognizing the treaty’s potential short-term usefulness. Within the Islamic policy paradigm, women’s rights, and human rights more broadly, are not considered purely objective rights that are commanded in a clearly articulated text nor are they subjective rights to be determined and applied by society or even those who are entitled to benefit from them. Instead, such rights are framed within a paradigm that is both fixed and dynamic. The fixed dimension ensures the continuation of a moral and material order that is needed for people and the planet to flourish while the dynamic dimension continually exhorts individuals and groups to respond to context in ways that address emerging challenges and improve the human condition. It is in this latter dimension that the CEDAW may offer temporary relief given the immediate realities with which women must cope. The paper ends with a discussion of policy progress and lessons for maqasidi scholars and practitioners.

3.2 CEDAW: History, Ratifications, and Reservations

The CEDAW is often claimed to be the most far reaching global instrument for addressing the “gender gap” and thereby achieving women’s rights and empowerment. Adopted in 1979 by the UN General Assembly, the treaty is based on the work of the UN Commission on the Status of Women (CSW) whose aim is to ensure that the principle of equality between men and women is implemented. The CEDAW effectively represents the CSW’s effort to combine the rights that had been previously elaborated in the Convention on the Political Rights of Women (1952), the Convention on the Nationality of Married Women (1957), the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962), the Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1965) and the Declaration on the Elimination of Discrimination Against Women (1967). Through laborious efforts during the 1970s, the latter declaration would be transformed into the binding instrument that we know today as CEDAW. Its main idea was to surpass the general human rights regime that had not served women well. By 2022, 189 states had ratified or acceded to CEDAW.

The sheer number of state memberships is testament to the inbuilt flexibility of the treaty. In recognition of the legal, political, and cultural challenges that may compromise States parties’ participation and adoption of CEDAW, the international treaty system permits such parties to enter a unilateral statement or reservation that excludes or amends certain provisions. A reservation by a state party is permitted by Article 19 of the Vienna Convention on the Law of Treaties at the time of ratification or accession when the state party wishes to “exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”. This allowance, however, is not intended to nullify the basic aim of a treaty but rather to allow states a certain measure of flexibility due to diverse contexts that may ease accession and subsequent compliance. Thus, a reservation is not permitted if it is “incompatible with the object and purpose of the treaty”. CEDAW reinforces this prohibition in Article 28(2) that states: “A reservation incompatible with the object and purpose of the present Convention shall not be permitted”. In response to reservations, other member states may submit objections if in their view the reservation is incompatible with the object and purpose of the treaty (Article 20–23, Vienna Convention on the Law of Treaties). Generally, the resort to reservations is highly discouraged by supporters of the international human rights regime in order to avoid a watering down or complete abrogation of certain fundamental rights (Beijing Declaration & Platform for Action, 1995, para. 218). When reservations are unavoidable, the CEDAW Committee recommends that they be kept to a minimum, that they are well defined, and that they do not dilute or negate the object or purpose of the treaty (Committee on the Elimination of All Forms of Discrimination against Women, 1994, paras. 3–7).

CEDAW requires States parties to submit a report to the Secretary-General on the legislative, judicial, administrative, or other measures that they have adopted to comply with the Convention within a year of accession and subsequently every four years or at the request of CEDAW. The CEDAW Committee then examines and questions the reports with the aim of providing comments and recommendations to support compliance with the Convention. Although critiques are divided on the value of ratification given the entry of reservations, many still highlight the importance of dialogue on key challenges when States parties are willing to engage (Freeman, 2009). Entering reservations based on Shariah incompatibility, the main concern of this chapter, is a legal action even if it is not accurate or genuine. In fact, CEDAW is the most extensively reserved human rights agreement on religious grounds (Raday, 2012, p. 516).

Although all Middle East and North Africa (MENA) region states have ratified the CEDAW, both the extent and nature of reservations have led many observers to question the potential of the treaty’s efficacy in protecting women’s rights. Disagreement continues regarding all or parts of Article 2 (obligation to change constitutions and laws), Article 5 (elimination of discriminatory customs, practices, and family obligations); Article 7 (participation in political and public life); Article 9 (nationality); Article 15 (legal capacity, property, movement, living arrangements); Article 16 (equality in marriage and family); and Article 29 (negotiation and arbitration). While some countries provided no justifications at all, others base their reservations or declarations on conflict with national legislation and constitutions and/or incompatibility with the Islamic Shariah. Those who contest based on reference to the Shariah argue that implementation of CEDAW’s provisions on marriage and family would compromise basic Islamic values and injunctions.

3.3 The Limits of Interventions Based on Traditionalist Arguments

3.3.1 Shariah Versus Fiqh

Reference to the Shariah is essentially reference to some body of fiqh or jurisprudence and at the state level this is usually limited to one of the major schools of law including Shafi’i, Maliki, Hanafi, Hanbali, Zaidi, Jafari, and Zahiri, among others. Before proceeding then, it is important to correct the inaccurate conflation of Shariah with fiqh. The Shariah is the ordinance or higher law established by God and conveyed by means of the Revelation, which encompasses the Quran and authentic Sunnah; it represents the righteous path derived from the Revelation, whether pursued by individuals or nations, given the incalculable parameters of life at any given moment. The Shariah can only be understood through a thorough investigation of the truths that God has revealed in written and non-written forms. The productions of this process nevertheless can only ever constitute fiqh, literally meaning an understanding, not the Shariah itself whose laws are unchanging and to which the potential application of intellectual effort is infinite.

3.3.2 Fiqh and State Policy

Reference to the Shariah especially as it pertains to women in modern state policies has a complex and disappointing history. Although the politicization of the Shariah can be traced back to the introduction of dynastic rule in Islam, it is the colonial era that created a crucible of policy inputs that would shape the lives of Muslim women until today. Indeed, as Sonbol (2009) argues, the personal status laws which encompass marriage, divorce, guardianship, custody, inheritance, and adoption, “are a combination (talfiq) of fiqh rules, traditions (urf), and nineteenth century philosophy toward gender relations” (p.180). This philosophy was reflective of Victorian values and European laws that spread through European conquest, particularly England and France. In many areas of the Muslim world, colonial rule enforced a preference for male dominance in family matters including primogeniture models of inheritance that negated female shares mandated by Islam, while also tolerating domestic abuse (Ha-Redeye, 2009). This is not to say that the selective retention of fiqhi opinions in marriage, divorce, and family balanced colonial interventions, to the contrary, it tended to reinforce its negative implications for women.

According to Ha-Redeye (2009), “the enormous breadth of shari’ah has been neglected since the time of colonialism, when many Muslim regions regressed in the area of gender equity by adopting European paternalistic norms” (p. 29). Those aspects of traditionalism that were retained were not reflective of the flexibilities that were exercised before colonialism (Sonbol, 2009). The rigidity that emerged in terms of subordinating the life and rights of women in social, economic, political, and cultural spheres is the result of a confluence of factors, including foreign intervention; political, and largely authoritarian, compromises with a dominant and vocal brand of traditionalism; and the acquiescence of women through coercion and/or complicity.

Similarly, today’s governments of predominantly Muslim societies often resort to traditional fiqh in order to reject or limit women’s rights. Those holding reservations to CEDAW choose fiqhi positions that demonstrate incompatibility with the treaty and only ratified the treaty with the guarantee of this prerogative. Yet, the fact that “no two states dispute the same sections of CEDAW in the same way or for the same reasons, … firmly disproves the existence of a universal form of Islamic law that can be interpreted in only one way” (Dissanayake, 2011, p.12). This reflects the fact that the choice of edicts and associated legal theories reinforced through state policy is a discretionary matter. Fiqhi opinions, especially in the past, were considered of equal validity and hence the choice of opinion tended to be based on contextual factors. This complex and rich legacy has the potential to admit a diversity of perspectives. Not surprisingly, but perhaps to the confusion of many, some CEDAW supporters also draw on traditional fiqh and other aspects of Muslim history to demonstrate Islam’s compatibility with the treaty. As Mir-Hosseini (2009) observes, those who argue for or against CEDAW, “can and do provide textual support for their arguments, though commonly taking it out of context in both cases” (p. 28).

Resorting to traditional fiqh has the potential to sway public opinion because of its continued influence on scholars and lay people. Moosa (2017) argues that it is common for Muslims to “feel so beholden to these ancient [fiqh] books that they cannot move beyond those contributions to fresher understandings of what tradition, in the present, ought to look like” (p. 6). Yet the scholars of the past who interpreted religious texts never claimed that they offered the only or best perspective, but rather only one alternative that was certainly open to change and questioning. Those who reject CEDAW based on tradition tend to neglect the very real challenges that women face on a daily basis given contemporary contexts while those who support it offer little in the way of serious critique of the real sources of such challenges. Both do not consider the actual breadth of the Shariah and thus engage in the discourse on women within the narrow confines set by global counterparts. Relatedly, few consider the necessity of rethinking fundamental questions—not about women in isolation but about the world within which women are struggling to survive and flourish.

3.4 The Problematic Status of the Global Discourse on Women

CEDAW is premised on the idea that the root cause of injustice in the lives of women stems from systematic discrimination “which keeps them subordinated to the ‘tyranny’ of men, an oppression made possible by an order of society sanctioning male domination and qualified as ‘patriarchal’” (Abul-Fadl, 1993, p.29). Accordingly, the treaty’s primary aim is to achieve de jure and de facto equality with men through the imposition of obligations on States parties. Despite this narrow focus, the treaty is presented as comprehensive and encompassing of women’s lives in politics, economics, education, health, personal affairs, and security leading many to uncritically accept the CEDAW as the “yardstick to appraise all sorts of discrimination against women on the basis of gender” (Cheema et al., 2020, p. 166). This view is not defensible from an Islamic perspective. For my own part, I simply do not know whether to accept that the CEDAW has value in the current global context, whether it is accepted fully or partially. Other things being equal, it is a worse world especially for women if they are discriminated against, but this could be explained by many more diverse and complex factors. Ultimately, CEDAW emanates from and responds to the broader policy paradigm of which it is part. Ideas related to how public concerns can be addressed spring from the possibilities that such paradigms offer. If we are genuinely interested in the position and rights of women, then the orientation and assumptions of the neoliberal paradigm that currently shapes policy at the global level, including the human rights regime must not only be made explicit, but it must also be seriously questioned.

3.4.1 The Challenge of Neoliberalism

The first principles of neoliberalism are not something that we revisit every time we deal with a policy issue and in fact tend to be taken for granted by many of those involved in the global debate. This may be acceptable for those actors sharing similar beliefs and background assumptions because it shapes the nature and limits of what they not only think is achievable but even more what is desirable. In light of this, CEDAW is not only a product of neoliberalism, it also actively promotes its tenets. In this paradigm, women, like men, are defined as individual consumers who exercise likes and dislikes through market behavior and whose ultimate state of felicity is found in independence and freedom that is most fulfillable in the context of free markets. Unbridled market competition is considered the best system for reward and punishment shifting the natural place of men and women from family and community to the labor force. Limiting freedom in any way distorts market outcomes. Thus, neoliberalism is a global ideology that denies social equity manifested in safety nets, poverty alleviation, employment programs, labor rights, and wealth redistribution from rich to poor. This is perhaps why some critics mistakenly believe that CEDAW counters the violence of neoliberalism. According to Raday (2012), “the substantive equality provisions of CEDAW provide theoretical and normative tools to contend with the growing challenges … of neoliberal exploitation of women” (p. 512). By focalizing discourse and efforts almost exclusively on women as opposed to the importance of mutual relationships between men and women including the duties and responsibilities of both toward each other, in cooperative and mutually supportive cultures, however, CEDAW serves to reinforce systems of female oppression and isolation.

Although quite tragic, the findings of the most recent study by UNODC and UN Women that more than five girls or women were killed by a family member every hour in 2021 are not surprising. The report showed that 56% of all girls and women are killed by “intimate partners” or other family members in comparison to 11% for boys and men in the same sphere. According to UN Women Executive Director Sima Bahous, “behind every femicide statistic is the story of an individual [emphasis added] woman or girl who has been failed” (UN Women, 2022). Actually, there is a story of a family, a community, and a social system that has failed by conditioning its males (and females) to abdicate not only their duties toward women, but the very basis of human relations, namely, mercy, as will be discussed later. The assertion by UNODC Executive Director Ghada Waly that “no woman or girl should fear for her life because of who she is [emphasis added]” (UN Women, 2022) only feeds into the individualist, isolated and socially fragmented paradigm of neoliberalism. No woman or girl should fear for her life because of her familial/communal relationships and especially who her male relatives are. Such fear cannot be framed in the context of a false independence but rather that of unavoidable and existential intra and interdependencies. The fact of who she is and who those around her are only reinforces this perspective. Resorting to criminal justice and public policy will not be sufficient in a world where these measures deny or neglect fundamental questions about women’s welfare within the context not only of the communities in which they live, but also the nature of their creation and essential needs. A closer look at CEDAW’s positions on key issues further reveals the problematic status of the global discourse on women.

Consider the example of substantive equality given in a video presented by IWRAW Asia Pacific, UN Women Fund for Gender Equality, and the Department of Foreign Affairs, Trade and Development Canada (now Global Affairs Canada). In the video we are presented with the following scenario: A factory allows men and women to take night shifts but the factory is not well lit and this can lead to assaults, which may discourage women from doing night shifts. In the protectionist approach, we are told, women are considered vulnerable and so they would be prohibited from participation in certain activities. To protect women from assault, the company would not hire them for the night shift. This does not address the problem, the narrative continues, and denies women a source of income. In the corrective approach emphasized by the proponents of substantive equality, the environment ought to be fixed to help men and women equally. In this case, the factory could install more lights and provide transportation for women in order to “create a safe and enabling environment” for them to work night shifts (CEDAW, 2014). Revealingly, there is no questioning of why women have to work night shifts and how this affects their personal well-being. The only objective is to facilitate work throughout the night providing a source of income but more likely a source of profits for the factory owner and its shareholders. There is no challenge to the actual conditions that compel women to leave their homes and families, abandoning their need for rest and the reassurance of the well-being of those they leave behind every night as they struggle to survive.

Another stark, and perhaps more insidious example, is CEDAW’s requirement that its understanding of women’s equality override traditionalist culture and what it deems as religious discriminatory norms. In effect, the treaty usurps the right of women to choose when such choice betrays its neoliberal value system. Thus, while it works hard to pressure governments to outlaw practices it considers injurious to women like polygamy, it not only refrains from demanding an end to prostitution or “sex work”, it also insists that governments ensure suitable environments for the trade. Thus, CEDAW: The Smart Sex Workers Guide to the Convention on the Elimination of All Forms of Discrimination Against Women which “advocates for rights-based health and social services, freedom from abuse and discrimination and self-determination for sex workers” (GNSWP, 2018, p. 2) is considered a tool in actualizing human rights in the lives of women. Yet, such actualization and self-determination in a legal marital relationship that has as its foundation, at the very least, protection from this world of licentiousness and prostitution is rejected as a bona fide choice that women might actually choose to make.

3.4.2 Revisiting First Principles

A return to first principles demonstrates that this is nothing more than an imposition of a cultural orientation that best serves the neoliberal system and highlights the transcendental void that has characterized policy paradigms in the post-Reformation and Enlightenment period. Injustice cannot be perceived as lack of access to oppressive, corrupt, and unjust opportunities. As poignantly observed by the late Mona Abul-Fadl (1993), “rarely, has it been thought that in taking the laws and mores in their hands and legislating for themselves in the light of a world reconstructed along the lines of a much vaunted but steadily blurring feminist consciousness, women might instead quite unwittingly be contributing to their own afflictions” (p. 36). Using a tawhidi episteme, she argued that while injustice can be met with the concept of zulm in Islam, such a conception neither carries the same intent as its secular counterpart nor is it confined to the same parameters. In particular, zulm encompasses self-inflicted injustice or zulm-al-nafs.

Consequently, the fundamental questions that concern us in the above-mentioned scenarios are not about uncritically creating safe and enabling environments in the labor force but rather why women are placed in iniquitous positions in the first place. What real economic and social forces drive them to compromise their dignity, health, family, and homes to earn “extra” income? For whom is this environment ultimately being created and what shares do they have in the potential benefits that result? Why would we strive to recognize differences among men and women but then place women in the exact same situation that these differences are intended to alter? What “playing field” is being leveled and who are the hidden stakeholders? Why are we shifting obligations and duties toward women from their immediate environments to ambiguous and unpredictable actors? Who is deciding that man-made laws in this regard are preferable to those sourced from Revelation? These questions are at the very heart of a genuine discourse on the position and rights of women—even if they are beyond our immediate scope.

3.5 The Shariah and Policy Debates: The Equality Conundrum

When first principles are revisited, as they must in a treaty that has existential implications, it becomes manifestly clear that the nature of injustice suffered by women is not primarily on account of their lack of equality with men, which without a judgment of value is not possible under any circumstances. Rather, equality becomes the illusion, the disguise of much deeper social ills that are more intractable but patently obvious in terms of their impact on the position and rights of women. Equality is perhaps one of the most contentious issues in the debates surrounding CEDAW. The notion that the injustices suffered by women are on account of their inequality with men is pivotal for proponents of the treaty, including Islamic scholars, and those arguing for human rights more broadly. In fact, equality has come to be seen as a defining feature of justice.

In contrast, and despite such efforts, many Islamic (predominantly male) scholars contend that equality is not possible between men and women. This is evident, they argue, from women’s subordinate position to men in the Quran and hadith and it is further evidenced by the volumes of traditionalist literature on the subject. These scholars believe, whether explicitly or tacitly that Revelation is directed at them, and that only they have the capacity to properly understand it and consequently to direct women’s lives. This position, no matter how much history and scholarship are marshalled to support it, is just as fallacious as that of the first camp that insists that equality is intrinsic to Islamic justice.

3.5.1 Quranic Position on Equality

The Quran does not take an unequivocal position on equality, except to negate its possibility. Inequality is not only a condition that characterizes differences between and among men and women, but also a universal law that is manifest in all creation. As a universal law, inequality has sultan or is an authoritative truth that has purpose. The key then is to understand why and in turn to address reality, not to negate a universal law and then strive with futility to change it. A major response to the question of why inequality can be found in three other universal laws, including (1) the necessity of balance; (2) the mutual benefit and inter-dependence of all created matter; and (3) the measure of worth of all creation in relation to its responsiveness, whether voluntarily or by decree, to its Creator and not in relation to the mutual equivalence of any of its dimensions. Inequality is neither negative nor discriminatory in the divine scheme. In its infinite manifestations, it is a mercy that allows creation to exist in synergy. How then can we understand human relations if not through a certainty of equality?

The Quran tells us that it is not certainty of equality that ought to shape human relations but rather ignorance of worth. It states:

Oh you who believe, let not one people belittle another people, perhaps they may be better than them or women toward women, that perhaps they are better than them. And do not insult one another and do not offend each other with labels. Horrible is the designation of immorality after belief, and whoever does not repent then they are the unjust.

Oh you who believe, avoid most assumption, truly some of it is sin. And do not spy and do not backbite each other. Would one of you like to eat the flesh of his dead brother? You would hate it. And heed Allah, indeed, Allah is accepting of repentance and giver of mercy.

Oh you people, truly We created you from male and female and made you ethnicities and tribes to know one another. Indeed, the most dignified of you with Allah is the most heedful. Indeed, Allah is Knowing, Proficient. (Al-Hujuraat 49:11–13)

Explaining these verses requires much more detail than we can afford in this paper, though we can highlight some important implications. First, equality is neither pre-ordained nor is it the foundation for action. Rather, it is the lack of knowledge of a person’s or group’s worth in the eyes of God that ought to motivate the believer in their worldly dealings. There is no distinction between men and women in this regard as divine worth is not something revealed to us in this life except as the Quran has expressed. To bolster the emphasis on our ignorance of worth, we are told to avoid assumptions about each other and not to pursue acts that would in any way compromise mutual respect or at the very least, neutrality. We ultimately emanate from the same source of male and female. Our differences or inequalities are not a source of discrimination but rather an invitation to knowledge and exchange. This is binding on men, women, communities, and on our relationships with other creatures.

3.5.2 Ignorance of Worth and Human Dignity

Because our primary relationship and worth are with God, it follows that the most dignified in the sight of God are the most heedful or those who are most responsive to divine imperatives. Dignity (karama) and heedfulness (taqwa) are inseparable. When the Quran states: “And Indeed, We have dignified the children of Adam and carried them in the land and the sea; and granted them from all that is good and fair; and favoured them over much of what We created with notable favour” (Al Isra’ 17:70), it is drawing attention to the priority and necessity of human dignity. The fourfold favor that is unraveled in this verse sums up the elements that are required for the attainment of human dignity and hence welfare. These elements ought to be the foundations of a robust policy paradigm. The grant of dignity emanates from the provision of a moral code that individuals and communities are exhorted to recognize in order to flourish in harmony with, not subjugation of, one another and other living things. The code is required to benefit from the opportunities for livelihood that God has provided in land and sea and to mitigate corruption that will inevitably arise. The moral order is also necessary to recognize that it is God who has given humanity all that is good and wholesome with no one being deprived except to the extent that this order is betrayed. Upholding this order, however, does not grant humans definite superiority since we are only preferred above much, not all, of creation. This qualification is intended to instil a sense of humility and again, widen the scope of our ignorance of worth to promote the guardianship of all life.

The duties and responsibilities of men and women are therefore not framed in terms of equality because they are not intended to achieve equality among each other, but rather to achieve heedfulness or obedience toward God and in turn mutual provision of dignity. We are, as believers, in our moral-religious conviction servants of God (‘ebad Allah) irrespective of our divinely determined sex. The latter being one among many factors that are reflective of the purposefulness of everything in nature. Men and women are expected to contribute to a moral and material order where they dignify each other through divine guidance. “Blessed is He in whose hand is the dominion and He is over all things capable; Who created death and life to try you as to who is the best in works and He is the Endearing, the Forgiving” (Al-Mulk 67:2). The guidance is from God and the accountability is ultimately to Him.

By shifting the source and motivation of human relationships to God irrespective of worldly manifestations, the Quran assures women (and men) of their unique purposefulness, their connectivity and the ultimate wholeness which emerges on account of their choices. The exchange of mutual obligations in this worldview is not discriminatory, rather it is part of a balanced and immutable moral order that ensures human flourishing. Although it is possible to imagine a world with well-defined and implementable substantive equality measures that “empower” women to do exactly what men do, the question would still remain whether this was preferable, even correct, in the religious-moral sense. In essence, we can envision many substantive equality policies that yield important benefits in today’s world, yet is this fragmented and competitive view of humans with each other and humans with nature accurate, however much that would “empower” women? Even if equality of women and men, as conceived in mainstream discourse, could be achieved, this does not settle the question of whether it is the best path for women, humanity, and collective flourishing. Conversely, if it can be demonstrated that the secular conception of equality is not intrinsic to conceptions of justice in the divine scheme of earthly life, then pursuing this path is not only socially problematic, but also wrong in the religious-moral sense.

3.6 Maqasid as an Alternative: An Ecology of Compassion

We need to examine the position and rights of women, not from the vantage of a grievance or ideologically constricted approach, but rather from the perspective of a divinely inspired order that is based on the purposefulness, connectivity, and holism of all created matter. Within this approach women must be recognized as autonomous agents and subjects of the Revelation who are critical participants in the regeneration of life, not only as mothers, but as the many diverse manifestations they express throughout life transitions. The new maqasid methodology (NMM) focalizes Revelation, comprised of the Quran and Sunnah (traditions of Prophet Muhammad), guiding our study of these texts in such a way that emphasizes these and other universal truths. According to Jasser Auda, a leading authority in maqasid studies and principal theoretician of the NMM, “the Maqasid Methodology allows us to re-orient our awareness of reality as follows: (1) to situate Islam as the gage of advancement or regression in human history, (2) to perceive complexity of the current reality accurately, and (3) to unravel divine criteria necessary for future visioning” (Auda, 2021, p.85). The NMM entails the construction of composite frameworks that examine key concepts, objectives, values, rules, universal laws, parties, and proofs (COVRUPP) that are expressed throughout the texts concerning a specific subject, theme, or phenomenon. Essentially, these elements combine in dynamic and connected patterns or webs to express revelational meanings that are intended to guide real world experience. In conformance with its revelational source, the NMM is not intended to catalyze an all-out break with reality. Where it can, it will reinforce positive and beneficial aspects of contemporary life. But it will also, unapologetically, aim to prohibit and reform harmful impulses, whatever cloak of civility neoliberalism may have obscured them in.

In the Quran and Sunnah, women are neither defined nor constrained by their biological nature nor are they cast out as market actors or commodities. The Revelation is, in fact, reflective of the complexity of the lives of women. From the orphan girl to the head of empire, the lives of women are portrayed in a magnificent array of roles. They are contextualized within intricate relationships demonstrating purpose and connection that give rise to holistic meanings which ultimately shape communal life and history. This presentation of women, however, must not obscure the Revelation’s, and in particular the Quran’s, presentation for women. Both the narratives about women in the Quran and the webs of meaning relating to the position and rights of women in the divine scheme based on detailed analysis of COVRUPP are intended for women as active participants and women as subjects, just as it deals with men and other social groups. Even in its presentation of women as subjects, the texts do not command passivity but rather serve to inform women of the obligations that have been placed on men to assure them of their position and rights with God and to empower them to demand such rights. In other words, the Quran calls them to witness and then to actively guard their status and rights.

3.6.1 Purpose

Thus, the first source of a woman’s empowerment is her relationship with God and her knowledge of the moral and material order, both its fixed and dynamic aspects, that He has put in place for the achievement of her dignity. The Revelation explicitly and intentionally positions women in direct communication with God. In this two-way communication process, the Quran gives a woman the choice and guidance to position her life’s purpose in relation to her Creator and then to vigorously pursue the paths that best meet her needs and aspirations through her knowledge of the divine order. This is a relationship with oneself as much as it is with God and His creation. Every example of heedful women in the Quran from before Prophet Muhammad up to the Revelation he received, demonstrates how women, whose lives ranged from ordinary to extra-ordinary, utilized this confidence in their direct relationship with God to navigate personal and public challenges. The exposition of intervening factors like circumstances of birth, social context, or conditions and events associated with connections like family, community (friends and neighbors), and government (society, market, and state) serve to show women, and others, how empowering her primary relationship with God is intended to be. Her purpose, and the purposeful paths she chooses, are necessarily bound by these connections and circumstances for better or worse but are not necessarily determined by them.

3.6.2 Connection

The second source of a woman’s empowerment is the understanding of her position among and relationship to close connections including both men and women and the diverse institutions in which all take part. Well before the expression of her needs and possibly extension of her hand to the state—an impersonal, unpredictable, and politically motivated institution—a woman is owed, just as she owes, care by her immediate relatives. Beyond her exclusively dependent connection with God, she is empowered by intra-dependent connections with believers. The dominant and misguided assumption that the connection of women to men is one of servitude in exchange for in-kind and financial support is the wrong interpretation of Quranic guidance and is not reflective of Quranic narratives or of the life of Prophet Muhammad. The lives of the women in the Quran are characterized by sanctity, autonomy, liberty, capacity to command good and prohibit evil, to flourish and support the flourishing of others, and the possession of dignity. The idea of “freedom from”, muharah in Arabic, actually occurs once in the Quran in the context of Maryam’s birth and life (Al-Imran 3:35). Even with the acknowledgment, though not in any derogatory sense, by her mother that females are not like males, our first and only encounter of genuine liberation is experienced in the life of a girl. What did this liberation entail? First, a beautiful acceptance by God with all of His blessings. Second, the provision of a healthy and contented upbringing that is expressed in terms of the propagation of a plant. Third, facilitation of care and protection by a capable male relative expressed in the word kafalah and entailing the provision of all needs. Indeed, there was a competition among the males of the family regarding who would make such a provision for this young girl. In the Quran, the provider of such comforts is not superior or authoritarian. Rather, the undertaking is depicted as a privilege that brings the caregiver and care receiver closer to God. Finally, her liberty would not have been complete without the opportunity to self-actualize through unobstructed developmental paths. Indeed, Maryam would go on to live a life free from all matters that hindered her divinely chosen path.

This is the fundamental essence of an intra-dependency based on heedfulness or taqwa. The qiwama or reinforcement of women by men that is mentioned in the Quran can only be understood in this light as it is qualified by “with what Allah has favoured some over others and with what they spend of their wealth” (An-Nisaa 4:34). This expresses the divine command that men are to respond with what women actually need, not just material supports. The idea is for men to give of that which they have been granted in abundance whether in relation to other men or in relation to women as a reinforcement of women in their individual aspirations and paths toward God. This is not limited to personal and family matters but extends to all domains that women can and wish to contribute. Nor does it preclude an order where women are righteous, devout, and guarding what is manifest and hidden as God commands, but it demonstrates that the reinforcement of women morally, intellectually, spiritually, and materially, are divinely ordained commands that contribute to this order. It is as such that the Quran explains how believers, men and women, are literally members one of another, ba’dukum min ba’d (Al-Imran 3: 195, An-Nissa 4:25) and in another instance guardians of one another, ba’duhum awliya’ ba’d (At-Tauba 9:71). On a personal level, this dual relationship is described in terms of unity in creation where partners/spouses are literally of each other and are a locus of dwelling in security where friendship and mercy have been placed by God (Ar-Rum 30:21), and further, each is garment for the other (Al-Baqara 2:187). On the level of humanity, the Quran states that men and women were created from one being or nafs that comprehensively expresses the moral and material imperative of mercy (An-Nisaa 4:1). This intra-dependence gives its hue to the designation of women in the Quran as wives, daughters, aunts, sisters, etc., of men; not as competitive and conflictual counterparts or subservient recipients but as right-holders and full-fledged agents, themselves, entrusted with God’s command and the governance of worldly affairs.

3.6.3 Holism

Holism, thus, completes the foundational triangle of the NMM of purpose and connection, by situating women, as it does all other creation, in this complex web of life. This is the third, and final, source of empowerment of women. Here, women cannot be isolated, independently struggling beings, without agency, but rather are perceived and treated as purposeful and connected individuals acting and being acted upon by diverse and complex relationships not only with other people but also with animals, plants, rivers, mountains, and all such beings that make up our universe and inform our experiences within it. Holism exhorts us to see the connectivity between our welfare and that of other creation, in recollection of the Quranic command to learn from their nature and respect their purposeful paths. Their purposes and connections are not all that different from ours (Al-An’am 6:38) and it is only through understanding our mutual inter-dependence that appreciation for the whole emerges. As Abul-Fadl (1993) rightly observes:

[…] women can only be validly addressed within the perspective of a holistic conception. They are never isolates; they are always part of a field of relationships and integral affinities such that there can be none of the empty subjectivity that is the hallmark of modernity, or even more of post-modernity. Even where they might have gender specific concerns and interests which are clearly legitimate and which are duly acknowledged in valorizing difference where the need and situation arise, they, women, as much as `men’ are part of a whole. (p. 40)

When women situate themselves within this purposeful, connected, and holistic envisioning or tasawwur, every subsequent concern, including policy initiatives, must yield to its universality. The partial, particular, or historically determined, cannot supersede the universals of the divine order. Understanding the fixed and dynamic dimensions of this order establishes the stability required for the dignified regeneration of life—all life—and the change required to deal with immediate conditions and future aspirations.

How we are to develop policies that take such complexities into account, including the responsibility of men within a society, maybe the subject of debate and will likely be contested on grounds that have little to do with divine guidance. This is where our struggle must focus and where we can demonstrate and better understand the real issues impacting the welfare of girls and women and their treatment at the global and local levels.

3.7 Progress in Policy

In the present context, the approach to the position and rights of women can be distinguished into three positions. First, there are the proponents of CEDAW, seeking to justify its provisions through the traditionalist toolkit with some referring to the classical maqasid, hoping to win over conservative communities. Governments of predominantly Muslim societies are criticized for slow progress toward eliminating discrimination against women and achieving “gender equality”. State reservations are seen to defy women’s rights. Thus, while some measures have been taken, they are considered far from sufficient. Second, there are those who reject the CEDAW, with or without justifications. When justifications to reject are provided, it is, like the former group, achieved through traditionalist arguments. Third, there are those who feel that the position and rights of women must be reframed to acknowledge a fundamental order as well as a greater understanding of the complexity of their lives. Of these groups, the first finds their views most prominently reflected at the global level, and international treaties and debates. But still, partially as a result of the force of the second group accommodations are being made—if only with a transitory temperament. In essence, legislators and activists have taken the second group’s willingness to engage, despite the reservations, as a step in the right direction, with the express aim of eventual withdrawal of the reservations. They are essentially seeking an “overlapping consensus” in the words of John Rawls (1993). Think of ongoing States parties’ changes to national constitutions, laws, and programs concerning women. Although these changes may not fully satisfy proponents of CEDAW, they are, nevertheless, efforts in the evolutionary process they are aiming for. There is broad agreement on the potential of the international human rights regime to achieve “transformative equality” and in particular CEDAW 5(a) by many writers (Raday, 2012, p. 514). At the same time, those who have resorted to fiqh to reject or amend certain provisions have collectively given a voice to the Shariah. In general, they can participate in the international debate while not giving up very much. Hence, if we limit ourselves to these two positions there would appear to be progress in public policy but with important concessions around key provisions. Both groups would argue that there is much work to be done.

This is not to say that the third alternative with its radical proposals is impossible. As Abou El Fadl (2009) asserts: “in principle, doctrinal potentialities exist in a dormant state until they are co-opted and directed by a systematic thought, supported by cumulative social practices, towards a culture that honours and promotes human rights” (p. 115). When drawing on a maqasid approach to the position of women and their rights, we must not fall into the traps of traditionalism, modernism, or feminism. To start from the Revelation is to challenge the ideas and pivots around which this discourse has unfolded. We cannot endorse positions that view women in perpetual conflict with men or that start from false premises. A revelational perspective would no doubt strive to correct injustice and corruption, but this cannot monopolize the starting point of inquiry and effort. The pivot of injustice represents a misunderstanding of the challenge and an abdication of responsibility for the status quo. In the Islamic tasawwur men and women take a collective stand to re-establish a divine order that distinguishes between right and wrong and between fixed and changeable. This cannot simply be borne out of a prejudicial and imposed sense of injustice but must be rooted in a broad understanding of purpose, connection, and holism. The position and rights of women will not be secured in a world where men are not viewed and treated as supporters, partners, friends, sons, and loved ones; nor will it be possible in a world where connections to all sources of life have been compromised and subordinated to human interests and greed. The social and cultural consciousness of Muslims may not be ready for these connections but the status of women and their rights will not be found on biased or untruthful grounds.

Younger generations are seeking to make connections and find meaning. In light of this, as Brooks (2002) observes, “[…] at a moment when left wing politics, feminism, and liberalism are all floundering, unable any longer to persuade or inspire a new generation that worries about wars and jobs and the environment, the discourse of international human rights offers us a new and potentially transformative way to conceptualise the world’s many injustices” (p. 361). Even this discourse is unlikely to fulfill its promise as it too remains partialistic, fragmented, and in denial of a fundamental order that guarantees the flourishing of all life not just humans.

The current human rights regime, including women’s rights, may only provide temporary relief due to its tendency to adopt the same systems it aims to change. The complexity of challenging the dominant neoliberal paradigm makes it difficult to effectively address these issues through policy and practice. While CEDAW may provide some relief for some women in specific contexts, it is neither a universal nor comprehensive solution. The best approach is to undertake research that explains the purposefulness of creation, highlights its interconnectedness, and demonstrates how it interacts (or ought to interact) to support women and their communities. Such research can support a better understanding of the implications of current policy choices for women given the diverse worlds in which they are inextricably rooted.

3.8 Conclusion: Lessons for Maqasidi Scholars and Practitioners

This chapter has hopefully illustrated that approaching public policy problems by means of the Shariah demands a robust and suitable methodology that does not yield to diametrically opposed positions. Although that has been what we have seen in current public policy debates resorting to the traditionalist menu of alternatives, it has been confusing, disjointed, and a disservice to the purposefulness, connectivity, and holism that characterizes the Shariah and in turn what it has to offer women and humanity. In terms of value added or a future vision, current responses offer very little. The value of Islamic scholarship cannot be constrained to the political project of ending women’s subordination especially as it has been articulated in human rights instruments like the CEDAW. In particular, the maqasid approach does not limit itself to locating the status of women in society or in defining and promoting their rights as isolated in an otherwise interconnected reality. Instead, it problematizes the general misperception of the nature of oppression and injustice by emphasizing neoliberalism’s corruptive impact on the fundamental order while emphasizing the purposefulness, connectivity, and holism of creation. The Revelation’s comprehensive approach to the lives of women—both as moral agents who receive, question, synthesize, and adopt the message but also as distinctive subjects, like other individuals and groups with special significance, of that message—means that the pivot of injustice especially as it is reduced to the equality of women with men, is a prejudicial approach to studying divine guidance while unduly restricting response to human rights treaties, like the CEDAW, especially in the longer term.

The methodology outlined in this paper suggests that when considering issues with existential implications, it is necessary to start by exploring the Revelation with a focus on purpose. This involves asking questions such as: What guidance is available in the Revelation for our current context? What are the divine objectives revealed to us? How can we promote individual and collective well-being? And how can these insights inform public policy? Maqasid scholars are well-equipped to analyze objectives, gather evidence, contextualize discussions, and provide comprehensive conclusions, but they must first become immersed in the Revelation and experts in the topic they want to address.

People who bring the Shariah into public debates often lack a deep understanding of how it supports their positions and may cause confusion, distortion, and anxiety for those trying to understand its implications for women’s rights and status. The maqasid approach, as applied to women’s rights and status, offers a comprehensive, critical, and forward-looking perspective that emphasizes dignity, equity, and justice in policy development. It also presents a vision of society based on compassion, where individuals recognize their dependence on God, intra-dependence on each other, and inter-dependence with the rest of creation.

In conclusion, the analysis presented in the chapter suggests several policy implications related to the position and rights of women in Muslim-majority societies. These include the need to acknowledge the complexity of the issue and to promote an overlapping consensus that balances the rights and well-being of women with cultural, religious, and social norms. Research-based policy-making can help to support women and their communities, and it is necessary to rethink the limitations of current human rights regimes. Finally, adopting a revelational perspective that avoids the traps of traditionalism, modernism, and feminism can help to correct injustice and corruption, based on a nuanced understanding of the multiple perspectives and interpretations at play.