The major schools of law codified fiqh, or interpretations of the divine shariah law, in the 8th to 11th centuries CE, between 120 and 400 years after the death of the Prophet (pbuh). The rules on the formation and termination of the marriage contract that were devised by the classical jurists during this period largely govern marriage and divorce law today, 1,000 years later.

The conceptions of gender that were codified by the major schools of law, however, were neither unified nor coherent, but competing and contradictory. The various schools of law each had different substantive rules governing marriage and divorce, with no single 'authentic' or unanimous idea of the rights and obligations of spouses within marriage. Over the past 1,000 years, these substantive rules have altered, though the inequality between spouses has remained constant. This helps to demonstrate that while shariah is universal, unitary, and unchanging, fiqh is local, multiple and subject to change.

While the substantive rules were different between the schools, the concept of marriage was similar. Jurists regarded marriage as a transaction that gave husbands ownership or control over their wives, and especially over their sexual organs (farj). Thus, marriage was conceived in terms of commerce and ownership, with jurists even making frequent analogies between marriage and the institution of slavery, husbands and masters, wives and slaves. In exchange for the dower, the husband gained a type of ownership – in the form of sexual access – over his wife. The wife had to be sexually available to him at all times, such that he had total control over even her movement to and from the house. In return, he was required to provide maintenance and support, to the extent that Maliki, Hanafi and Shafi’i even stated that she had no duty to cook or perform housework for herself or her husband.

The most prominent Maliki jurist of the time, Shaykh Khalil, wrote: “Dower is analogous to sale price ... When a woman marries, she sells a part of her person. In the market one buys merchandise, in marriage the husband buys the genital arvum mulieris (pasture of the woman).” The most prominent Shi’a jurist, Muhaqqiq al-Hilli, wrote that marriage “is a contract whose object is that of dominion over the vagina, without the right of its possession.” Al-Shafi’i said in Al-Umm: “It is among her rights due from him that he support her, and among his rights to derive pleasure from her [istimata’a minha].”

In these classical fiqh rules, gender inequality was taken for granted as a principle. Women were depicted as sexual beings, not social beings. The distinctions between concubine, slave and wife became distorted.

This conceptualisation can be partly explained by the socio-historical context of the day. This period was an era of hierarchy, social stratification and the widespread practice of
slavery, where elite men had easy access to women for use as slaves or sexual partners. In addition, practices from pre-Islamic Arabia and local customs from each distinct socio-geographic area in which the jurists lived were embedded into fiqh.

Interestingly, this concept of marriage changed in the last century, with Victorian concepts of the man as breadwinner and the woman as housewife replacing the ideas of maintenance in exchange for sexual access. A 1972 'manual' on marriage in Islam cites the man’s responsibilities as protection, happiness and maintenance of his wife; and the woman’s responsibilities as cooking, cleaning, laundry and other household management tasks. This is a far cry from the three major schools’ stance that women were not responsible for any housework. It demonstrates, however, that conceptions of gender roles and the system of male marital privilege that were created by the classical jurists and reshaped in the last century did not simply emerge from the Qur’an, but were the results of numerous acts of interpretation by particular men living and thinking at a specific time.

In fact, these conceptualisations of marriage and the social roles of women contravene the notions of justice and fairness toward women that are articulated in the Qur’an and practised by the Prophet, as well as ideas of social roles we understand today. Gender rights as constructed in historical fiqh are unable to attain the objectives of justice, equality and fairness in today’s societies. And yet justice is central to the objectives of the shariah (maqasid al-shariah). While the gender discriminatory rules may have been acceptable in the context of the hierarchical societies within which they were formulated, they are unacceptable from a modern perspective. Muslims today need to formulate a new jurisprudence based on conceptions of marriage that are promoted by the Qur’an (2) and relevant to the changing roles and responsibilities of men and women in today’s society.

(1) Derived from Kecia Ali, “Progressive Muslims and Islamic Jurisprudence: The Necessity for Critical Engagement with Marriage and Divorce Law”, in Omid Safi, ed., Progressive Muslims, Oxford: Oneworld Publications, 2003; Ziba Mir-Hosseini, “The Construction of Gender in Islamic Legal Thought: Strategies for Reform”, in Hjh. Nik Noriani Nik Badli Shah, ed., Islamic Family Law and Justice for Muslim Women, Kuala Lumpur: Sisters in Islam, 2003.
(2) Such as “the Believers, men and women, are protectors one of another,” (at-Tawbah 9:71) and spouses are garments for one another (al-Baqarah 2:187).