Affirmative Action

Women enjoy equal rights in Shariah in respect of ownership, management of financial affairs, civil transactions and contracts. The Hanafi school has extended this position to the contract of marriage, although the majority of other schools have considered marriage an exception and require its solemnization by the legal guardian (wali) even of an adult woman. Since Islamic jurisprudence permits selection (takhayyur, or takhyir) among the leading schools, position which has been utilized in the statutory legislation in many Muslim countries, then there is basically no Shariah issue of concern in this area. Yet patriarchal customary practices, especially among the tribes of Asia and Africa, present obstacles to women's enjoyment of their civil and financial rights. The problem here is essentially not juridical but one of prevalent prejudicial custom and male-dominated family and society.

To give an example, the Quran unequivocally entitles female relatives to specified shares in an inheritance, which is, however, widely denied to them by their male relatives. Prohibitive statutory enactments in many Muslim countries on this and similar other issues have not succeeded in curbing entrenched customary positions. The Lesson one learns here is that prescriptive law reform needs to be followed by a wider campaign on awareness raising, education and policy initiatives.

Muslim women in rural Asia and Africa are not well aware of their rights either under the Shariah or statutory law. Legislation should naturally be continued to lead the way in the campaign for gender equality and economic empowerment of women. In some particularly difficult situations, recourse may be had to affirmative action legislation and quota system, for example, in admission to schools and employment centres, on a temporary basis at least, to promote the objectives of gender equality.

Compiled From:
"Shariah Law - An Introduction" - Mohammad Hashim Kamali, pp. 271, 272