Q: Legal inequalities in parts of Iran’s legal code have predominantly been influenced by traditional Shi’i religious jurisprudence. There are two questions here: Why are some religious people now challenging these inequalities, and is it possible to fight these legal inequalities and defend gender equality while preserving one’s religiosity?

Alireza Alavitabar: Some of these legal inequalities also existed in the previous regime’s legal system, which was more or less the outcome of the Constitutional revolution. However, other inequalities concerning women entered the legal system after the Islamic Revolution with the aim of giving traditional jurisprudence a dominant position in our social lives. As long as the living sphere of our people (in particular Iranian women) was traditional and the legal system reflected conventional relations, these laws were not challenged and gender inequalities appeared natural and eternal.

However, contact between our society and modern societies led to comparisons of women’s status, and the absolute and eternal nature of these inequalities were questioned. Gradually, opposition became serious and effective and finding ways to counter legal gender inequalities became an issue. Some religious people critiqued the legal system from an ethical stance and viewed these legal inequalities as unjustifiable, unacceptable, and a contradiction to the essence of, and outside the domain of religion. In recent years, as the result of a considerable increase in ethical critiques of religious jurisprudence, new possibilities in religious thought have emerged, but these will have to be discussed on another occasion.

In response to your second question, those who believe that religion should influence the public sphere and that civil law should draw its source from religious principles and values, have proposed a few approaches to counter gender inequalities in the law. These approaches can be generally classified as follows:

a- The suspension of primary precepts ( ahkam-e avalieh ) and legislation based on secondary precepts and state precepts ( ahkam-e saanavieh va ahkam-e hokoomatee ).

In traditional Shi’i fiqh *1, religious precepts can be generally divided into two groups: primary precepts and secondary precepts. Any subject, regardless of secondary consequences, in the first place belongs to the category of primary precepts. For example, it is religiously prohibited to eat meat that is not prepared according to religious guidelines under ordinary circumstances. But in extenuating circumstances, such as hardship and loss, secondary precepts can be implemented. For instance, a starving person may eat such meat. After the formation of the Islamic Republic, in accordance to the late leader’s views, a third kind of law, known as state precepts ( ahkam-e hokoomatee )was recognized in our legal system. In other words, a religious government acting as religious guardian, can issue a law or declare something temporarily necessary or prohibited, according to exigencies and interests of Islamic society. Therefore, in our legal system there exists three religious sources for issuing precepts: the nature of the subject itself regardless of secondary consequences, secondary consequences and emergency, and expedience.

Within the Islamic Republic’s legal framework, the state is authorized to temporarily suspend secondary precepts if they are averse to the country’s interests and issue appropriate laws in its stead.

Thus, if the implementation of religious precepts regarding women-even if they are primary-result in secondary consequences or is deemed injurious to society, it is possible to suspend and replace them temporarily with other laws. As long as the secondary circumstances persist, or expediencies require, the suspension of the precepts is sanctioned and acceptable.

The issue of exigency and expedience is outside the domain of fiqh (identifying what is exigent and expedient) and must be addressed by experts [in the particular field].

One religious solution to countering legal gender inequalities is the suspension of primary precepts; due to the current situation in Iran and elsewhere in the world, it is not feasible to enforce them because of their secondary consequences or because they run counter to the interests of the Islamic society, and equality should become the base of law-making.

b- Dynamic ijtihad *2 in secondary principles ( ijtihad-e pooya dar foroo’ )

The proponents of dynamic ijtihad believe it is possible to issue alternative decrees concerning women’s issues (women’s fiqh ). To support their viability, they assume the following premises:

First, ijtihad is a necessary requirement in the deduction of religious precepts. This necessity originates from different factors, such as the general nature of the sources (the Quran and the hadith traditions) of the basic precepts, the time lapsed after the emergence of the sayings, and problems such as the loss of non-spoken proofs, the destruction of some of the judgments ( nosoos ), the fabrication of some of the Traditions and the occurrence of events for which a specific judgment ( nas ) does not exist.

Second, it is necessary to distinguish between ” fiqh -givens” ( badihiat-e fighi ) and ” shari’a *3 -givens” ( badihiat-e shari’at ). Many of the fiqh -givens are also givens in the shari’a , but we cannot say that what is a given in fiqh is necessarily a given in shari’a . In instances where an issue is not self-evident in shari’a, it is open to discussion and reconsideration.

Third, the necessity of distinguishing between “indisputable revelations” ( vahi ghat’ee ) and “presumed revelations” ( vahi zani ). Revelations are considered indisputable when there is certainty at the point of issuance (certainty about the source) and in terms of guidance ( delaalat ) (certainty about the meaning). If the revelation lacks any of the two requirements, it cannot be considered indisputable. Given these two criteria, such revelations are rare. For example, some of the Quranic verses, though indisputable at the point of issuance, are not indisputable in terms of meaning.

The proponents of dynamic ijtihad in secondary principles believe that many of the sources used to issue precepts regarding women are neither definite with respect to their point of issuance, nor in terms of guidance. As such, they should not be considered indisputable revelations. They believe that jurists have the authority to practice ijtihad and are in a position to courageously proclaim new decrees ( fatwa s) based on gender equality. One result of religious interpretation based on equality is the strength with which some jurists have recognized women’s competence to politically rule.

c) Ijtihad in the Fundamentals ( ijtihad dar mabaani )

This third solution is espoused by religious intellectuals or new religious thinkers. Although these new thinkers believe that dynamic ijtihad in secondary principles and access to new theories are necessary to bridge the gap of inequality, they consider them insufficient and hold ijtihad in the fundamentals to be the ultimate solution. In other words, new religious thinkers advocate a revision in the “deliberation” and “approach” to religion so that our understandings of religion (in general) and fiqh (in particular) are readjusted. They believe that the fundamental understandings of shari’a , that is, the logical, philosophical, and epistemological assumptions that influence secondary precepts and are the basis of fiqh and its principles, should be subject to revision.

Ijtihad in fundamentals draws from several sources. Some of the sources are listed below:

1) For God, the ultimate purpose of religion-understanding the divine presence and attaining religious experience-is of primary and essential importance. To show humankind the path, God has chosen a specific umma (religious community) as a model. Based on their knowledge and existing conditions of that period, God created a religious system that can lead them to the ultimate purpose. As such, the system God has legitimized is contingent upon “specific conditions” and once those conditions change, the precepts become no longer practicable and become subject to change. The dissonance between the set of religious precepts and religion’s ultimate purpose does not negate the possibility of achieving that purpose. In such circumstances, the religious community will create a system of jurisprudence based on an ideal model so that followers can attain the ultimate purpose of religion.

2) Separating the essentials and accidentals of religion and designating fiqh (and women’s fiqh ) as accidental. Accidentals of religion have four main properties:

• Accidentals are not derived from essentials but are imposed on them.

• Accidentals are permutable and dispensable.

• Accidentals are bound by local and temporal conditions (they are not universal or eternal).

• Accidentals are not inherently pleasing and can only be considered pleasing secondarily.

The essentials of Islam are elements without which Islam is not Islam, and changing them would mean establishing a new religion. The accidentals of Islam are the Arabic language and culture, scientific theories discussed in the Quran and Traditions, historical events recounted in the Quran and the Traditions, and posed questions and answers that have been recorded in the Quran and the Traditions. There are three reasons why Islamic fiqh should be regarded as accidental. Firstly, some of the precepts in fiqh are the result of questions that have emerged out of accidents that could conceivably not have occurred. Secondly, fiqh is a human science and it has been created to resolve disputes and establish order in society. Thirdly, fiqh is contingent.

When you consider the totality of fiqh as an accidental, then the fate of precepts concerning women becomes clear. For the proponents of ijithad in fundamentals, one can abide by religious mandates and pursue religion’s ultimate aim without needing to regard fiqh and its precepts as fixed. It is not only possible, but desirable to have religious faith in the modern world and accept modern thinkers (modern laws and human rights).

I believe that the aforementioned religious approaches are sufficient to achieve gender equality in the legal realm.

Q: The question that arises is why, given the availability of religious approaches to defending equal rights between men and women, does this inequality still exist, and the demand for equal rights has not yet been met?

AA: . I think there are several reasons why gender inequalities in the law still persist. First is the power and influence of the traditional outlook towards women in our society. For numerous reasons, a certain perspective about women has taken shape in our society and is influencing more or less all of us (both religious and secular people). It is possible to justify this outlook using religious arguments, but the fact is that even without a religious bent, one can be attracted to it and argue in its defense. I have already tried to address the basic tenets of this outlook in a previous article, but I will simply mention here that they include: the acceptance of absolute physical, emotional, and mental differences between the sexes; emphasis on women’s emotional dependence on men; the belief that women’s physiology was created mainly to bear and raise children; the acceptance of men as women’s guardians; the acceptance of men’s right to discipline women; the belief that women should not be permitted to have leadership positions and enter parliament; the belief that the women’s participation in industries and social activities is harmful; opposition to empirical findings about women. The fact is that this traditional outlook is influential both among ordinary people and those holding power in Iran today. This belief system, which has shown a great deal of resilience, is one of the obstacles to removing legal inequalities.

Second is the lack of technological development. Technology does not determine all of society’s features, but it delimits two basic things: The boundaries of what is possible and the relative accessibility of resources available to us. Women’s active social presence and their freedom from the artificial limitations that social life imposes on them are functions of the choices that technology offers. For example, in a technologically underdeveloped society, women have to choose between family and children on the one hand, and having an active social role on the other. Advances in technology have broadened women’s choices. Increase in leisure time, replacement of manual labor with machines, the provision of basic needs are all products of technological development. Broadening the scope of women’s choices and increasing women’s access to social and political activities can reduce gender discrimination and provide the necessary ground for ensuring more equalities.

Third is external reconstruction as a theoretical and practical model. In my opinion, the attempt to reconstruct Iran (and all Islamic countries) from the outside has led to its opposite in the form of fundamentalist tendencies that favor discrimination against women. When I use the term, external reconstruction, I have in mind both an intellectual framework and a set of policies and procedures. Intellectually, external reconstruction is an outlook that feeds off developmentalist and functionalist sociological theories. It tries to understand general development processes in the Third World by insisting on the two poles of tradition and modernity. In this perspective, countries of the Third World must import values, systems, and technologies from Western industrial countries to achieve growth. The key point in this perspective is that tradition is in itself an enemy of development. As such, every attempt focuses on its elimination or neutralization. “Modernization” becomes synonymous with “Westernization.” The only path to development or reconstruction is the one taken by Western countries and that leads to their living patterns. External reconstruction finds the fruits of modernity (technology and modern institutions) important, but considers the roots of modernity (critical modern thought) irrelevant. Furthermore, it sees the drive for modernity not as an internal necessity, but as an external requirement for establishing relations with others and meeting their needs. The dominance of external reconstruction patterns in Islamic countries in the past several decades has resulted in reactionary backlashes like fundamentalism. If, instead of eliminating traditions or opposing them, there was an attempt to give a new interpretation of traditions, or if traditions were regarded as complementary to, rather than in opposition to development, and if paths to development were considered to be many and multi-directional, then perhaps we wouldn’t have been faced with the growth of fundamentalism in the Islamic world.

Even though the proponents and promoters of external reconstruction were pursuing gender equality, in actuality, they postponed the realization of those goals.

Q: Your explanation for the persistence of a traditional outlook in our society raises a new question. The term, “feminism”, does not evoke positive feelings in Iran and particularly, in the religious community. But given what you have said so far, do you see a relationship between feminism and religious reformism? Can a religious reformist also be feminist, or does feminism essentially run counter to any religious belief?

AA: . I believe that feminism can be viewed as a discourse and also as a social movement. Without wanting to get into an extensive discussion of feminism, I will touch upon.the various strands of feminism..that have developed according to their cultural, organizational, and political origins. If we accept the diversity within the feminist movement, then based on observations and inductive reasoning, we can distinguish the different strands as follows:

First, defending the legal and social equality of women and men.

Second, defending an independent woman’s identity and perspective.

Three, female chauvinism and defending matriarchy.

Four, misandry

Five, promotion of women’s status (education, health, etc)

[.]

Two of these existing definitions-defending the legal and social equality of women and men and raising women’s status-can be compatible with new religious thought. A new religious thinker can be feminist, given these definitions. But as far as I can see, female chauvinism and misandry are absolutely in opposition to the views of new religious thinkers. The last remaining definition of feminism (defending an independent woman’s identity and perspective) is accepted with some degree of caution. The new thinkers find this definition of feminism useful for separating history from teachings (or separating the essentials from the accidentals of religion). They try to use that definition to criticize “the historic behavior of religious followers.” Nonetheless, they are worried that this definition may lead to some sort of relativism, leading to the absolute separation of women and men and of the feminine and masculine viewpoints. Religion should neither be interpreted from a male point of view nor be at the service of a female point of view. Religion speaks of “humans,” regardless of their sex or gender.

Q:Based on your explanation, “Islamic feminism” is not only possible, but in existence?

AA: Of course it depends on how this term is defined. If it’s defined as defending legal and social equality between the sexes while remaining loyal to religious values, yes, it is not only possible, but existing. Islamic feminism is a call to reinterpret our religious texts and religious history by abandoning the values inspired by patriarchy. In this new perspective, many of the things considered shari’a- givens are questioned. There is an attempt to prove that those things are not givens but are a product of our traditional living environment. Islamic feminism is an attempt to realize existing potentials in religious teachings in the modern living environment. In this sense, Islamic feminism is close to the project of religious intellectualism.

Q: In your opinion, what is the relationship between women’s efforts to gain legal and social equalities and the movement of Iranians that strives for democracy?

AA: As far as analyzing the relationship between those two movements, I favor the statements and concepts my learned friend, Dr. Jalaipour, has proposed. If I understand the views of Dr. Jalaipour correctly, today in Iran, we have a general and conventional social movement and specific new social processes. One of these processes is the women’s process. The democratic movement is a conventional social movement. It’s conventional in the sense that it is concerned with the broad and general demands of the people, is in constant opposition and conflict with opponents of democracy and proponents of authoritarianism, pursues organizing and the formation of cohesive organizations, is political, and uses methods of political struggle to achieve its goals. The women’s process, on the other hand, is a new movement. It’s new in the sense that it has limited and specific objectives, solutions, and demands. Within this movement, members’ identity-seeking is not only intrinsically desirable, but a goal in and of itself. It forms in fragmented, non-localizable, and small gatherings, and relies on the mass media, more than anything, for the advancement of its objectives.

Our social pyramid will undergo transformation only when the general movement and this specific process collaborate and move together in the same direction. In other words, if the domain of political activity can collaborate and share objectives with the domain of cultural and social resistance, we can hope for the success of the two. The only way to achieve this is through dialogue between the custodians and activists of these two movements.

 

Translated excerpts from an interview with Alireza Alavitabar, published in the Farvardin 1382 (March 2003) issue of Aftab magazine in Iran.