Gender, the Problem of Patriarchy and Maṣlaḥa in Indonesian Islam: From Fiqh al-Abawī to Fiqh al-Nisā’

Dr.Phil. Syafiq Hasyim
Director of International Center for Islam and Pluralism (ICIP), Jakarta
[email protected]  

Dok. Jurnal Perempuan

Generally speaking, the term gender remains often misunderstood in Indonesia even by its committed adherents like me. The misinterpretations of gender range from making a joke to serious matters of our daily behavior, attitude and discourse on it. The people of Indonesia often identify gender with female or feminine gesture and behavior. You can feel more misconstruction and misunderstanding of this concept when attending Islamic forums and discussions, meetings of state officials and many other occasions in Indonesia. In short, gender is simply translated into all things physically and mentally related to women. All these reflect that the notion of gender remains discursively contested and to some extent misguided. The lack of proper understanding on the discourse and practice of gender in Indonesia is a result of complex intermingling between social, cultural and legal factors on the one hand and male-biased interpretation of religion on the other hand. The religion-based patriarchy becomes more apparent due to the literal fanaticism of Indonesians regarding their religion’s views on the rights of women. For the literalist groups of Indonesian Muslims, the legal status of women in Islam is very clear as the subordinate of husbands and men both in the public and domestic sphere. This is seen as non-debatable because it is literally mentioned in the Qur’an, or qaṭʿī al-dilāla (cogent indication). From the perspective of the groups, following this role strictly is part of being pious and respecting the teachings of Islam. Hizbut Tahrir Indonesia (HTI, Party of Liberation, Indonesia) and also the women’s wings of Partai Keadilan Sejehtera (PKS, Justice Prosperity Party) believe all efforts to liberate women in Islam are part of an international conspiracy to de-legitamitize Islam. Both organizations seem to hold the understanding that Islam determines the position of men as leaders for women both at the public and private sphere. This is one example of how Indonesian Muslims implement “patriarchal” perspectives, which are based on religion. This paper seeks to shed light on the problems of patriarchy, particularly those which are related to the preference of Indonesian Muslims in adhering a particular discourse of Islamic legal theory and jurisprudence that creates ambiguity and tension with gender issues internationally. In doing so, I will depict the various Islamic interpretations used by Indonesian Muslims to publicly discuss the problem of patriarchy. This paper also highlights the dynamics of Muslim scholars and activists locally and globally in striving for this issue through their new method of interpretation such as maṣlaḥa or maqāṣid theory. A discursive shift from male-to female oriented Islamic jurisprudence is also taken into account in this piece.

Indonesian Islam and the State of Patriarchy

Historically speaking, Indonesian Muslims have long been recognized as open and respectful of the diversity and plurality of beliefs and religions (Saskia 2006, p. 1; Azra 2013). Indonesian Islam is also often claimed as the best model of religious tolerance in the world. All these assumptions are based on factual cases of the religious life of Indonesian Muslims, including their preference to have non-Islamic theocratic state although Indonesia is the most populous Muslim nation in the world. Most importantly, historical narratives on the coming of Islam to the archipelago serve as further evidence in support of this argument. It is, for instance, agreed among historians on Indonesia that Islam was not disseminated in this region through violence or war, but it came peacefully through trade and cultural means. Both ways have enabled Islam to spread wide and negotiate smoothly with the myriad localities of Indonesia. With regard to this fact, many experts conclude that Indonesian Islam has its own characteristics which are different from Islam in other places of the world especially the Middle East. The distinctiveness is mostly associated with more flexible and accommodative nature of Indonesian Islam to various local values and cultures of the country. Therefore, finally, it is believed that the Indonesian Islam gives more space and tolerance for innovation and reinterpretation of issues posed by modernity.

With regard to the given historical facts, Indonesian Islam is also comfortable with the rights of women because its inclusive character will also create room for respecting the equality of men and women. Judging the conformity of Indonesian Islam to the rights of women is not a simple matter. When the Queen of Aceh (1641-1699) led that kingdom, Islamic legal polemics pertaining to the legality of a woman leading the state arose there. The local ulama of Aceh seemed to be fine with the leadership of Sultana (queen) but a fatwā by Sherriff of Mecca stating that women were not allowed to lead the kingdom had more resonance (Riddell 2007, p. 42; Kathirithamby-Wells 1976, p. 71). Raden Ajeng Kartini, often credited as a modern female liberator in Indonesia, also suffered from the classical dictum of polygamy in Islamic legal jurisprudence (Taylor 1976). So the inclusiveness of Indonesian Islam regarding the local values of Indonesia does not always mean it accepts the equal rights of women and men. It can be said that Indonesian Islam is comfortable with the diverse localities of the country, but has trouble dealing with women. This is kind of patriarchal portrayal of Indonesian knowledge including Islam in which all matters related to the body of women is not part of public-ness.

The cases above paint a different picture than what the oral history of Indonesia often tells us, which is that Indonesia is a nation of mothers (Ibu Pertiwi). For example we can see positive historical examples of female queens, heroes, Muslim female scholars and many others, which are often cited to support this idea. Fatima Mernissi for instance discusses the leadership of the four sultana in Aceh (1993) whose roles are often forgotten by the Muslim world especially by Indonesian Muslims. Female figures such as Kartini in Central Java, Dewi Sartika in West Java, Rohana Kudus in West Sumatera are celebrated by Indonesians regardless of their religion and gender. Although historical and sociological cases can be used as modality to construct “comprehensive values,” to borrow John Rawls’ term, of the modern political and legal structure of Indonesia, to enhance the position of women, but our indigenous values instead often remain dominated by “patriarchal discourse of Islam” (Rawls 2011; Weithman 2011, p. 305).

Politically speaking, since the era of independence, it is a telling fact that Indonesia has not yet ensured equal rights for its male and female citizens. Indonesia has not yet issued strong state policies that ensure men and women have equal rights and status in the public sphere. In addition, the modern state of Indonesia has conformed to unwritten legal and cultural rules and bureaucratic patterns which discriminate against women. The role of women is institutionalized and limited within domestic matters of the public sphere, such as the association of civil servant’s wives (Darma Wanita) and many other similar groups. All these arrangements place women in a subordinate status. From the perspective of Marx and Engels, the state policy of the New Order era can be seen as a patriarchal state as all modes of production were made on the basis of “bondsmen” (Murray 1995, p. 6). It is important to mention here that this discrimination is implemented through the state’s laws, which do not grant equal justice, fairness and protection for both men and women. Although the state for instance does not specifically differentiate between men and women in its laws, this does not mean that the state has fulfilled justice either for men or women. In the perspective of gender studies, taking a neutral stance can be regarded as disempowering or excluding women. When the situation of men and women are not equal because of the dominance of one sex and the state maintains silence on this issue, it can also be understood as discriminating against women.

Furthermore, Indonesian lawmakers have codified some patriarchal elements of Islamic law into the state law. Their crowning achievement was the codification of Islamic personal laws into a Presidential Instruction Presidential Instruction No. 1/1991 on Kompilasi Hukum Islam. Many Muslim scholars claim that the KHI is a strong example of Indonesian fiqh due to its accommodation of some concepts of Indonesian culture like harta gono gini, but in general, this compilation does not promote the equal status and rights of women with men. Starting from this deficiency, an attempt to deconstruct the KHI was taken by a collaborative team consisting of the sub section of Ministry of Religious Affairs, Muslim (MORA) academia and Islamic NGOs.[1] This project was led by a senior officer of MORA, Musdah Mulia (b. 1958). Mulia herself is an activist and Muslim feminist who started her career as a civil servant at the Ministry of Religious Affairs. Now, Mulia is one of the very brave Indonesian feminists who passionately struggle for not only women rights but also pluralism and religious tolerance in Indonesia. Mulia has become the target of stigmatization and victimization by radical Islamic groups in Indonesia for her role in attempting to promote women’s rights. The project was intended to revise and make the content of the KHI more sensitive and empowering to the rights of women. But, the final document of this project was rejected by the MORA, which said the content was widely divergent from the mainstream fiqh of Indonesian Islam. A side effect of this rejection was that it was capitalized on by certain groups to brand all attempts at reforming Islam as part of a Western-designed plot to denigrate Islam.

Progressive Efforts of Indonesian Islam

Since the reform era in 1998, there have been some legal improvements regarding the advancement of gender equality and equity in Indonesia. Abdurrahman Wahid (known by his nickname, Gus Dur) published an INPRES (Presidential Instruction) No. 9/2000 on gender mainstreaming (Schech and Mustafa 2010). Although as a legal instrument, the INPRES does not have strong legal basis as law, but it provided a further means to promote women rights. This can be seen, for instance, in the quota if women’s representation which was required in the state law on general elections in 2009. This law demanded all political parties achieve a 30 % quota for women candidates in the parliament. However, although some progress was made in gender policy, at the same time, new patriarchal tendencies have emerged since the fall of Suharto (Day 2006, p. 149). This can be seen from some Muslim’s support for polygamous marriages, domesticating women’s roles, endorsing female circumcision and many others. Islamic organizations such as the HTI, Forum Umat Islam (FUI, Islamic Society Forum), Majelis Mujahidin Indonesia (MMI, Mujahidin Defenders of Indonesia) and also Islamic parties such as the PKS are fighting for polygamy.

They are very active in running media campaigns that polygamy is part of Muhammad’s tradition (sunna). PKS has many similar ideas and agenda with these groups. Many prominent leaders of this party have more than one wife. Even when some members of the party advocates for the importance of having only one wife, this idea is rejected by the majority of the party. This can be seen, for instance, in Bahagiakan Diri Dengan Satu Istri, written by Cahyadi Takariawan. This book is intended to internally persuade PKS cadres and activists to be monogamous and externally show that not all PKS members support polygamy (Takariawan 2011; Nurmila 2009).[2]

Puspowardoyo, an entrepreneur, advocates polygamy by providing a national prize for successful polygamous relationships. The HTI also mobilizes its followers to protest against the role of women in the public sphere because it is against women’s responsibility in Islam as the mother of household. Majelis Ulama Indonesia (MUI, Council of Indonesian Ulama) published a specific fatwā in 2008 declaring it unlawful to argue for the prohibition of female circumcision. The fatwā is called Hukum Pelarangan Khitan Terhadap Perempuan (Legal Judgment for Prohibiting Female Circumcision) (MUI 2011, p. 236).[3] The fatwā states “pelarangan khitan terhadap perempuan adalah bertentangan dengan ketentuan syari’ah karena khitan, baik bagi laki-laki maupun perempuan, termasuk fitrah (aturan) dan syiar Islam,” prohibiting female circumcision is against the regulations of sharia because it is order and part of religious sentiment for males and females (ibid).

This fatwā was in response to a circular distributed by the General Director of HealthMinistry regarding on the Prohibition of Medicalisation of Female Circumcission. According to MUI, the letter indicates what in Arabic is called “tahrīm al-ḥalāl,” disallowing the lawful, which is doing that is now prohibited in Islam. Human beings are not allowed to declare something haram which is actually halal. Therefore, besides countering the circular from the Ministry of Health, this fatwā was also aimed at countering the argument of feminist groups promoting the prohibition of circumcision on health grounds.

In the broader context, the increasing tendency of radicalism in Indonesia is affirmed by national surveys that show Indonesian Muslims are adhering more strictly to their religion over the last decade since the reform era (Burhanudin and van Dijk 2013, p. 7). This represents a strong challenge to long-established perception of the benign characteristic of Indonesian Islam mentioned above, which ultimately also influence perceptions on the status of women in Islam. Based on this, I would like to provide some examples of the model of Islamic thought constructed by Indonesian Muslim scholars and clerics in understanding the position of women in Islam. Hamka (b. 1908),[4] Munawar Khalil (b. 1908)[5] Jusuf Wibisono (b. 1909)[6]and others are examples of early Indonesian Muslim scholars who sought to offer Islamic arguments to protect the position of women from the proliferation of Western liberation discourses that swept across Indonesia during their era. Their works mostly argue for the supremacy of Islamic teachings over Judeo-Christian notions in particular and Western traditions including women’s rights in general. All Islamic teachings on women are, in their perception, intended to value and respect the dignity of women (martabat perempuan). Many Indonesian intellectuals such as Jusuf Wibisono, for instance, argued that polygyny is prescribed in Islam in order to prevent Muslim society from falling into the danger of extramarital sexual relations (Steenbrink 2006, p. 137). By allowing or permitting a husband to have second, third, and fourth wife, Muslim males have contributed to establishing Islamic civilization by commanding rights and forbidding wrong. In short, the era of these Muslim scholars can be regarded as the early establishment of “post-colonial Islamic patriarchy” in Indonesia.

In the 1980s to the 1990s, the discourse on women’s rights in Indonesia was enlightened by Muslim thinkers who had both national and international traditions as the basis of their knowledge and experience. This group is often referred to as the Neo-Modernist Movement because most of them have a strong basis in the studies of both Islamic tradition (classical Islamic literature) and Western tradition. Usually, their scholarship begins from traditional or modern Islamic boarding schools – studying the exegesis of the Qur’an, Sunna, fiqh, Islamic legal theory and many others- before moving on to university degrees in Western countries and in the Middle East. Nurcholish Madjid (d. 2006),[7]Abdurrahman Wahid (d.2009)[8]and Jalaluddin Rahmat are some of the key figures in this movement.[9]

Their model of Islamic thought is characterized by creative efforts in negotiating and amalgamating the spirit of high Islam with localities on one hand and new evelopments facing the life of Indonesian Muslim communities – low Islam — on the other (Gellner 1983; Lessnoff 2007). They strongly rely on classical Islamic texts as the foundation of their thinking, and a have a robust anticipation of modernity as their orientation in actualizing religion for the future.

In the 1990s, Abdurrahman Wahid paved the way for a new discourse of Indonesian fiqh which was generally outlined in his tenet of pribumisasi Islam (indigenization of Islam) (Wahid 1986). This concept emphasized the need to embed Islam within Indonesia’s local characteristics (Wahid 1989). The leitmotif of this discourse was twofold: the increased ability of this religion in adopting local values on the one hand and the strong grip in the tradition of Islam on the other hand. In this way, they apply the concept of maṣlaḥa (public interest) in contextualizing Islam within existing civilization (Mujiburrahman 1999, p. 342). With this framework, the crucial issues of Indonesia including gender issues are expected to be solved. Viewed from the perspective of post-modernism, Wahid’s pribumisasi Islam can be understood as arguing that in order to become inclusive, Islam should be based on local characteristics and the diversity of justice and truth (Murray 1995, p. 2). The pribumisasi Islam should be formulated in order to invent a multifaceted Indonesian Islam . When it is successfully formulated, the way forward towards reformism of religious thought – new interpretation — becomes predictable and effective.

Another effort to step down the path of Islamic reformism has been signaled, for instance, by Munawir Sjadzali (b. 1925) who introduced the “reactualisation of Islam” (reaktualisasi Islam). Sjadzali was the Minister of Religious Affairs, 1983-1993, and had a solid background in the field of Islamic studies as well as political sciences. What he means by this concept is to give attention to the needs of the Muslim community for reform of Islamic thought, using women rights in inheritance as a starting point. With regard to this case, Sjadzali suggests Islam has to be re-actualized, especially regarding the allocation of inheritance, which traditionally has women receiving only half the inheritance of men. The reactualisation of Islam here is the reactualisation of fiqh, not of Islam itself, because Islam as religion is immutable and unchangeable, but fiqh as a result of interpretation to Islam mutable and changeable. This is generally what Muslim scholars understand about Islam.

The idea of the reactualization of Islam was also underpinned by the situation in which many women are the main source of income for families but do not hold a strong social and cultural position within the family. As breadwinners, women share and contribute the family income, but the rights of execution in the affairs of household do not belong to women, but rather to men as husbands and heads of family, even though the husband may well be unemployed. Based on this reality, Sjadzali suggests the “reinterpretation of inheritance-sharing formula” for men and women, which the Qur’an textually states as being two for man and one for woman, to become equal. In the modern context, wherein the division of labor and family responsibility is not strictly separated and divided, the 2:1 formula is no longer justifiable. The formula has to be reinterpreted in the lights of current social justice. In dong so, the 2:1 formula is understood as the application of sharia (Arabic: taṭbīq al-shariʿa), not the utmost objective of sharia which is justice. As the form of sharia application, the formula 2:1 is mutable, as the heart of sharia, the value of justice is absolute and unchangeable. Both Wahid’s pribumisasi Islam and Sjadzali’s reaktualisasi Islam are examples of efforts to bring maqāṣid concept down to earth to the local nature of Indonesia.

The reactualisation of Islam is more understandable when it is also viewed from a specific notion in Islamic discourse that differentiates religious knowledge from religion (Soroush 2002, p. 32). From this perspective, the formula 2:1 can be understood as the invention of fiqh, science of religion, while what religion seeks is justice for humankind.

Apart from individuals, institutional efforts to create Indonesian fiqh have also been initiated by the Ministry of Religious Affairs and Majelis Ulama Indonesia (Council of Indonesian Ulama). Both drafted and proposed Kompilasi Hukum Islam (KHI, Compilation of Islamic Law) to the government of Indonesia during the Suharto era. According to the Ministry of Religious Affairs and MUI, the KHI is the result of collective ijtihād of Indonesian ulama in formulating a fiqh that accommodates and includes the numerous local characteristics of Indonesia. They therefore claim that the KHI is Indonesian fiqh. One of Indonesia’s characteristics transferred into the KHI is provision on harta gono-gini (an equal sharing of properties for men and women). Gono gini means fifty-fifty division for men and women in with regards to inheritance (Lev 1972, p. 180). However, if we look at the content of KHI as a whole, we can sense that traditional fiqh, which has patriarchal biases, remains prominent. As alluded to above, these efforts so far have been ineffective in solving injustices and unfairness affecting women. This is because all ideas promoted by neo-modernist Muslim scholars remain unable to provide a conclusive solution regarding the contradiction that exists between the religious texts and social reality.

Fiqh al-Abawī

Generally speaking, Indonesian Muslims place more emphasis on fiqh in their daily life than other disciplines of Islam. This can be seen, for instance, from how they institutionalize the issues of fiqh in the form of fatwā bodies within their respective Islamic organizations, such as Nahdlatul Ulama (NU: Awakening of Ulama) with its Bahsul Masa’il [10] (fatwā [non binding Islamic legal edict], Muhammadiyyah (Followers of Muhammad) with its Lembaga Tarjih (fatwā institution of Muhammadiyah), and Persatun Islam (Persis: Union of Islam) with its Dewan Hisbah (fatwā institution of Persis). Although the fatwā bodies above can also respond to questions outside fiqh, the fatwā requests from their communities are generally related to the issues of fiqh. As a consequence, these organizations answer questions using the method of fiqh (al-isṭinbāt alfiqhiyya). The Bahsul Masa’il, is an obvious example of how the consideration of fiqh is widely used in Indonesia. Similar to NU, the Lembaga Tarjih of Muhammadiyah also considers the importance of fiqh. However, in 1997, for instance, NU, through its National Congress (Munas) in Lombok, issued a fatwā about the legality of women becoming vicpresident of Indonesia. This fatwā was quite influential in paving the way for the Nahdlatul Ulama community to accommodate gender issues in their social and religious activities.

With regard to the current reality, the religious devotion of Indonesian Muslims is highly inferred by the notion of fiqh and my concern here is to link up this phenomenon with the patriarchal practice of Indonesian Muslims in their daily life. Such practices can be seen in daily attitudes and behavior where certain Islamic injunctions on women are used to justify the subjugation of women in Islam. For instance, the discourse of fiqh that states that the status of woman is a half that of man is generally used to cover the totality of women’s position in Islam.

In this paper, I suggest that fiqh al-abawī (patriarchal fiqh) is actually like other fiqhs, but there are clear patriarchal tendencies within its discourse. Patriarchal fiqh can simply be seen as a discourse of Islamic jurisprudence that does not support equality and justice between men and women and also discriminates and subordinates women’s rights to the interests of men. There are many examples of this, such as the ruling on man’s leadership (imāma) both in the domestic and public space – al-imāma al-ṣughrā wa al-imāma aluẓmā, domestic leadership and public leadership. The Qur’anic injunction used by Indonesian Muslim jurists is usually al-Nisā’: 34 saying:

• “Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth. So righteous women are devoutly obedient, guarding in [the husband's] absence what Allah would have them guard. But those [wives] from whom you fear arrogance - [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand.”
  

The leadership of men in this verse is actually open to interpretation. But they usually underline this verse as an Islamic legal foundation to prevent women from leading prayers(imām al-salāt), not for the public sphere. This is one of many examples where an interpretation of a specific verse of the Qur’an is addressed to one gender. However, I should say here that awareness about patriarchy in the discourse of Islamic jurisprudence is a relatively new phenomenon among Muslim legal jurists and people in Indonesia, only really coming in to the public consciousness in the 2000s.

Generally, Muslim jurists think of fiqh as a neutral discipline, not favoring either men or women. This predisposition accords to historical narratives developed by the scholars of this discipline that the establishment of fiqh was, initially, stipulated by the need of Muslim human beings to understand the will of God (tafaqqu fī al-dīn). Therefore, the creation of fiqh was originally absent from the interest of marginalizing and subordinating the position of women. However, patriarchal affinities can occur in specific circumstances, including when books of fiqh were written down by their authors. The fiqh of the Islamic middle ages was the conceptualization of a male-dominated religious discipline. There is no information regarding the presence of female authors of fiqh, or even the term faqīha (female Muslim jurist), a feminine of faqīh (Muslim jurist). Viewed from the perspective of Michel Foucault, the genealogy of fiqh as a knowledge discipline should be critically investigated in order to discern the subjectivity of their authors (Foucault 2012).

Modern social sciences have stimulated the emergence of self-discourse criticism among Muslim scholars including in re-assessing the development of fiqh in positioning women. Illuminated by this perspective, Qāsim Amīn (b. 1863), for instance, sees a direct relationship between the interpretation of Islam and the backwardness of women. Qāsim Amīn was arguably the most vocal Muslim intellectual in the struggle for the empowerment of women’s rights in all aspects of life.[11] Qāsim Amīn elaborated his thoughts and ideas in his two seminal books, Taḥrīr al-Mar’a and Mar’atun Jadīdatun.

The cultural-encounter between Islam and modernity has made the new generation of Muslim scholars conscious that, as a monotheistic religion, Islam, which claims to be as religion of both justice and equality, should be implemented not only at the rhetorical but also at the practical level. Islam has to be a totality of theory and practice or discourse and praxis. It is not to rhetorically say that Islam brings justice, but it should be practically implemented in daily life. So this religion rejects slavery and the subordination of women to men. Women are human beings, just like men; men are human beings, just like women (alnisā’ shaqā’iq al-rijāl). Muḥammad ʿAbdu (b. 1849) and Rashīd Riḍā (b. 1865) have propagated the justice of Islam through al-Manār.[12] Both introduced a new interpretation of some important verses of the Qur’an related to rights and the position of women in Islam and these served as their answer to the challenge of modernity. The most outstanding progressive interpretation of the Qur’an carried out by ʿAbdu is that regarding the verse of al-Nisā’, 1:

• “O mankind, fear your Lord, who created you from one soul and created from it its mate and dispersed from both of them many men and women. And fear Allah, through whom you ask one another, and the wombs. Indeed Allah is ever, over you, an Observer.”
  

This verse explains the creation (genesis) of human beings. ʿAbdu states that this verse implies that the creation of human beings did not begin from Adam. The content of the term nafs wāḥida is not Adam, but a single source. Most importantly, ʿAbdu argued the interpretation that nafs wāḥida, which has been understood by prominent ulama in the past as Adam, is an influence from within isrā’īliyyāt (Judeo-Christian) tradition, not from within the Islamic tradition. Muhammad ʿAbdu is also very clear in reexamining the literal pronouncement of the Qur’an regarding polygamous marriage by revealing that the Qur’an intends monogamy, not polygamy as the Islamic marriage system (Esposito 1994, p. 52; Saeed 2005, pp. 183-4).

As previously stated, although the establishment of fiqh is not intended to construct patriarchy within fiqh, this tendency is apparent in vast array of Islamic jurisprudence texts. There are several reasons why fiqh has a patriarchal tendency. First, fiqh is a discipline of Islamic knowledge derived (isṭinbāṭ) from the Qur’an and Sunna in which the language (Arabic) of both Islamic primary sources whose patriarchal lexicography is part of this language. The understanding and interpretation of al-Nisā’: 34, al-rijālu qawwamūna ʿalā a-nisā’…, ‘men are leaders of women…’ introduced by traditional fuqahā’, lucidly indicates how the dimension of fatherness is strongly rooted within the texts. The majority of jurists interpret and use this verse as justification (dalīl) that women cannot lead the prayer for men, while this verse is nothing to do with men’s leadership in prayer. With reference to this verse, some fiqh books disallow women to become the imam for male congregants in ṣalāt al-jamāʿa (communal prayer). However, Abdu’s interpretation as mentioned above is not popularly used by traditionalist Muslim scholars in Indonesia. Still, the rib story of Adam is well-known among Indonesian Muslims.

With regard to the given example, it seems that Indonesian ulama of fiqh in general did not consider the case of Ummi Waraqa binti Nawfal (a great female companion of the Prophet Muḥammad), who led a prayer (imām) while some adult men were her followers (ma’mūm). It seems that Indonesian Islamic jurists just adhere to a saying of the Prophet Muhammad, “la ta’umanna rajulun imra’atan” (men do not really follow women in a prayer) (Hadzami, p. 453; Ghazzi 2009). Another example is that regarding nushūz (Arabic, meaning wife’s disobedience of her husband). The ulama of fiqh act on the assumption that nushūz is only specific for women, while in fact the Qur’an mentions that men can also be judged as nushūz. Although al-Nisā’: 128 speaks about the possibility of men being disobedient to their wives,[13] but many books of fiqh dismiss this topic. Ibn Rushd’s Bidāya al-Mujtahid is often claimed as the prototype of modern fiqh, but it does not pay attention to any discourse on men’s nushūz (obedience. So perhaps the tradition surrounding the process of writing this book favored the supremacy of men. We can find many other examples of the patriarchal tendencies of fiqh which go against the principle content of both the Qur’an and Sunna; namely justice and equality. These two examples illustrate that contemporary fuqāhā’’s way of understanding such cases mostly relies on previous generations of fuqahā’, despite the fact that there have been many changes since those previous generations of fuqahā’ lived. Literal interpretations of Islamic religious texts reign supreme, even when they stand opposite to public interest (maṣlaḥa). This is a general discourse of Islam related to women’s issues.

Further, the founders of fiqh are mostly male. It is evident that male subjectivity has an influential role in the process of creating fiqh narratives. For instance, many previously mentioned maqāla (statements) of Islamic jurisprudence serve as evidence of this. To date, female scholars of fiqh are recognized, but their roles and thoughts are not extensively elaborated upon in works of fiqh. This remains the case, despite the fact that some prominent ulama of fiqh in the past, such as al-Shāfiʿī and Ibn Ḥajar al-ʿAsqalānī, recognized the teaching and guidance of their female teachers. In addition, they learned and studied Islam from these female teachers, but they did not seek to acknowledge their role. If we go back to the first generation of Islam, ‘Ā’sha was the teacher of many of the Prophet’s companions, but her capabilities as a female ulama are not expounded as prominently as other male companions of the Prophet. In addition, many of ʿĀ’isha’s narrations of the sayings of the Prophet Muḥammad are considered doubtful by Abū Hurayra. Abū Hurayra, as said by Fatima Mernissi (one of the Prophet Muhammad’s companions) was one of the contenders to the position of women which are represented a lot in the sayings of the Prophet Muḥammad narrated by ʿĀ’isa (Mernissi 1987, p. 56).

 Although patriarchal trends are not solely the domain of male ulama, it is nonetheless very much evident in the content of fiqh books written by them. Sayyid Abd al-Raḥman b. Muḥammad, in Bughya al-Mustarshidīn, for instance, uttered “wa man jalasa maʿa alnisā’ zāda l-lāhu al-jahla wa al-shahwa”, “anyone who sits down together with women, God will give him/her more stupidity and uncontrolled desire.”[14] This avowal is indicative of the unambiguous patriarchal content in fiqh and very much against the unbiased principle of the Qur’an and Sunna that grants men and women equal rights and positions as human beings. Another opinion declares that women are not given the duty of, and are even prohibited from, seeking knowledge other than specific knowledge related to “religious obligations” (al-wājibāt) such as knowledge on five daily prayers (ṣalāt), pilgrimage (ḥajj) and fasting (ṣaum). This is also not in compliance with the Qur’an and Sunna. The Qur’an and Sunna endorse women as being similar to men in their freedom to seek knowledge. The Prophet Muhammad said that “ṭalab al-ʿilm farīḍa ‘alā kulli muslimīn wa muslimātin, seeking knowledge is a duty for Muslim men and women.” We can find many other examples of patriarchal affinities within works on Islamic jurisprudence which are widely circulated and read in Indonesia (Manshur, p. 45).

The patriarchal predisposition of fiqh can be seen in the model of transmission and dissemination of this discipline, both of which are controlled by male ulama. In Indonesia, pesantrens, Islamic learning education centers, and Islamic forums, which serve as venues for the formulation and spread of Islamic discourse remain the domain of male ulama. Leaders, teachers and preachers are mostly males. In the co-educational pesantrens or Islamic study groups, male teachers can lecture both male and female students, but the same cannot be said for female teachers. Male teachers can work in learning centers dominated by female students, but women rarely teach in male-dominated forums, unless certain conditions are fulfilled such as they have specific expertise which are not found among their male colleagues or their presence must be demarked with a dividing cover (ḥijāb or sātir). They are also given of the opportunity to teach during ḍarūra (religious emergency). This tendency becomes stronger in Indonesia now especially among the students and activist of Salafi groups. Islamic learning circles managed by PKS (Partai Keadilan Sejahtera, Prosperous Justice Party) for instance at many state universities implement this model. In their perspective, segregation between males and females in teaching and learning process are not only part of morality, but fulfill religious demands in seeking knowledge.

In Indonesia’s electronic media, the presence of female preachers in the last decade has been quite an impressive phenomenon. On the one hand, it suggests a growing involvement of women in the public sphere, but on the other hand, their presence seems to extend Islamic patriarchy. Indonesian TV stations broadcast preaching programs hosted by female mubilligha (preachers), including Lutfiah Sungkar (female preacher from Jakartan native), Neno Warisman (former pop singer, b. 1964), Mamah Dedeh, Teh Ninih (Abdullah Gymnastiar’s wife) and many others. These figures are female preachers who preach for women, but their perspectives in understanding the issues of women remain grounded in the perspective of men. The content of their preaching is similar to that of male preachers, which promote the interpretation of male jurists. When Mamah Dedeh was asked by an audience member about the legal status of pregnant women, and whether they can get married or not during her pregnancy, Mamah Dedeh answered by quoting two opinions among Islamic jurists; first it is allowed and second it is not allowed. For the first fatwā, Islam does not recognise extra marital intercourse therefore the status of the child resulting from such a relationship is illegal. Another example was when Mamah Dedeh was asked about the legal validity of interfaith marriages. Dedeh answered that this marriage is not allowed. She seems to be very sure about her answer, although interfaith marriages remain a highly contested issue in Islamic legal jurisprudence. Dedeh does not try to go throughout the various opinions of this discourse.[15] The two examples reflect the strong influence of male ulama, although Islamic jurists remain divided on the latter case.

All the circumstances discussed above represent the dissemination of Islamic knowledge that further contributes to the formulation of more patriarchal tendencies within fiqh (Hasyim 2001, p. 133).

The socio-political and cultural structures of society in the past when the fiqh was created were also very male-dominated. As an Islamic science, the development of fiqh began in the Arab peninsula from the third generation after the death of the Prophet Muhammad. The socio-political and cultural structures of society in the region at that time and afterwards in general favored men. This also contributed to the establishment of patriarchal tendencies within fiqh, as it is very difficult to detach Indonesian ulama’s understanding of fiqh from Arab customs. This is understandable because most of the early fiqh discourse was constructed within the milieu of Arab culture. When the teaching of Islam and Arab culture mix in fiqh, many Indonesian ulama consider this as the totality of Islam including in women’s issues. For instance, all marriage-related issues, such as the leadership of men in the household, seem to be interpreted as part of religious discourse. However, when we read al-Nisā’: 34, the Qur’an outlines social and cultural issues regarding male leadership when they fulfills two capacities: cultural and political leadership ability as well as the ability to provide for his family. If he does not have these two capacities, then leadership can be offered to others who have these capacities.

With regard to this issue, Indonesian male and female Muslim scholars and activists such as Husein Muhammad (b. 1953), Nasarudin Umar (b. 1959), Mahasin, Badriyah Fayumi, Maria Ulfa, Ruhaini Dzuhayatin, Hamim Ilyas and many others have tried to offer a reinterpretation of gender issues, but their works are generally not recognized by most Indonesian Muslims. In addition, those who think of new ideas and reinterpretations on relations between men and women by utilizing gender frameworks are often stigmatized as devotees of liberal and Western ideology. Stigmatization like this becomes a real challenge in eradicating patriarchy in Indonesia. As a consequence of this, eradicating fiqh al-abawī and proposing fiqh al-nisāʿ is not only a scientific endeavor, but also an ideological endeavor to shape a gender bias-free Islamic discipline.

Maqāṣid and its use for gender equality

Literally speaking, fiqh means fahm gharḍ al-mutakallim, understanding the objectives of God. The mutakallim here is God, the Speaker. In legal Islamic theory, any attempt to understand the intention of God is called ‘ilm al-maqāṣid (science of God’s goals). For those who are familiar with the study of fiqh and uṣūl fiqh, although it is rarely used in the Indonesian context, maqāṣid has been extensively discussed among Indonesian Muslim scholars over the last two decades. Maqāṣid literally means objectives, intentions, and goals. The scholars of fiqh and uṣūl al-fiqh define that the creation of sharia (God’s law) is to enforce al-maṣlaḥa (beneficence) and to avoid al-mafāsid (harms) by providing protection for the five essential needs of human beings; al-ḍīn (religion), al-ḥayāt (life), al-‘aql (reason), al-māl (property) and al-nasl (generations). Yūsuf Qaradāwī adds one more objective: ḥifẓ al-‘irḍ (protection of human dignity). This kind of definition is clearly evident in a statement made by al-Ghazālī, “lakinnanā naʿnī bi al-maṣlaḥa al-muḥāfaẓa ‘alā maqṣūd al-shār‘i wa maqṣūd al-shār‘i khamsa wa huwa an yuḥfiẓa ʿalayhim dīnuhum, wa nafsuhum, wa ʿaqluhum, wa nasluhum, wa māluhum, fakullun ma yataḍammanu ḥifẓa hādhihi al-uṣūl al-khamsa, fahuwa maslaḥa, wa kullu ma yafūtu ḥādhihi al-uṣūl fahuwa mafsada wa daf‘uhā maslaḥa” [what we mean by goodness here is to protect the original objective of the Law Maker, and that the objectives of the Law Makers are five, that: is to protect the religion (belief) of human beings, the life of human beings, human reason, the future generations of human beings, and the property of human beings. Everything that maintains the protection of these five foundations is categorized as maṣlaḥa, and everything that rejects the protection of the five foundations is categorised as evil; to avoid the evil is goodness].[16] In the discourse of Islamic legal theory, the protection of five basic needs of human beings is called al-ḍarūriyyā al-khamsa (the five necessities) or maqāṣid al-sharīʿa (F. Opwis 2005; F. M. M. Opwis 2010).

Historically speaking, the early development of the maqāṣid concept can be traced through, for instance, al-Juwaynī (478 AH). He was the first ulama to emphasize the importance of understanding this notion behind the establishment of sharia (F. Opwis 2005). Al-Ghazālī (505 AH) developed a more complete concept of maqāṣid as the foundation of creating maṣlaḥa (public interest) and avoiding mafsada (badness, uselessness). After al-Ghazālī, the maqasid concept was further developed by others, such as Faḥr al-Dīn al-Rāzi (606 AH), Sayf al-Dīn al-‘Āmidī (631 AH), al-‘Izz b. ʿAbd al-Salām (660 AH), Shihāb al-Dīn al-Qarāfī (685 AH), Najm al-Dīn al-Ṭūfī (716 AH), Ibn Taymiyya (728 AH), Ibn Qayyim al-Jawziyya (751 H), and Abū Isḥāq al-Shāṭibī (790 AH). Among theoreticians of the maqāṣid concept, al-Shāṭibī through his masterpiece, al-Muwaqāt fī Usūl al-Shārīʿa, is cited as among the greatest innovators in the discipline of uṣūl al-fiqh. Ali Shāmi’ al-Nishār describes al- Shāṭibī’s work as the most systematic and complete book of Islamic legal theory (Al-Nishār 1978, p. 82). Many Indonesian ulama accept the importance of al-Shāṭibī as a legal foundation for developing new interpretations of Islamic teachings.

Many Indonesian Muslim jurists have employed the concept of maqāṣid for different issues and interests. Progressive Muslim groups use the concept as a primary analytical tool to discover solutions for the modern problems faced by Indonesian Muslims (Rachman and Shofan 2010, pp. 133-4). This group regards maṣlaḥa as the important concept in classical Islamic theory because of the idea promoted by this notion that God has intention behind the creation of sharia. Within this theory, it can be said that sharia is not only what is textually stated in the source of sharia (naṣ ẓāhir), namely the Qur’an and Sunnah. Religious texts are a means for God to reveal His message and goals, but they have limitations – space and time — and the intention of God is not. From this point, therefore, progressive Muslims try to think of Islam as not only being based on texts, but primarily upon context. Indonesian progressive Muslims favour this approach because it creates space for open reasoning and also protecting religion from manipulation at the hands of its interpreters and users (ibid).

However, progressive Muslim groups are not alone in using this theory. Those who are wrestling with the formal application of sharia, such as MUI, in Indonesia also employ maqāṣid in different sense. MUI’s objective in using maqāṣid is to protect the application of this concept from being misunderstood and misused by the progressive Muslim groups. In this regard, MUI in 2005 introduced a specific fatwā on the definition of public interest. This fatwā was issued in order to counter liberal streams of thinking promoted by Muslim intellectuals and activists such as Ulil Abshar Abdalla, Lutfi Assyaukani. Among these socalled liberal groups are those who adopt gender perspectives in their approach to Islamic teachings. MUI’s criticism related to the misuse of maqāṣid can be seen in the organization’s fatwā on maṣlaḥa. In this fatwā, MUI argued that the concept of public interest is often employed by such groups to determine an Islamic legal opinion without following the consensus of classical ulama of uṣūl al-fiqh (bilā ḥudūdin wa ḍawābiṭin) on how to properly apply this concept. MUI also states that the misuse of this tenet by some groups has led to mistakes in the formulation of fatwā and to confusion in the Muslim community. MUI felt obliged to set out the proper use of Islamic law by issuing a set of criteria for maṣlaḥa. The general content of this fatwā is concerned with three points. First, the tenet of maṣlaḥa in the perspective of Islamic law is to implement the aims of purposive sharia (maqāṣid al-sharīʿa) that implies a full protection of al-ḍarūriyyāt al-khamsa (the five necessities) as mentioned above. Second, MUI argues that the notion of public interest must be applied in accordance with the main textual sources of Islam (the Qur’an and Sunna). The use of this concept in a way which contradicts the Qur’an and Sunna cannot be justified as maṣlaḥa. Third, a body that has the authority to rule on the criteria of public interest is an institution that has competency in this field, namely ulama (Hasyim 2014).

Why does contestation occur between so-called progressive and retrogressive groups of Indonesian Muslim scholars and activists using the concept of maṣlaḥa? The contestation takes place because the theory of maqāṣid itself offers the possibility of producing a new interpretation of Islam. Here, sharia is no longer read and interpreted in the light of textual and inter-textual boundaries of meaning, but also in social, cultural and political realms. Here, the maqāṣid differs from other methodologies of Islamic legal theory such as qiyās that can only accommodate the judgments of textual and inter-textual interpretations.

However, the use of maqāṣid as a methodology of ijtihād (istinbāṭ al-ḥukm) is not common in the Indonesian context. Muslim scholars of Islamic legal theory and jurisprudence, tend to refute the use of maqāṣid because this concept is not part of the main works of the four schools of Islamic law. The maqāṣid is relatively new compared to the other foundations of isṭinbāt such as ijmāʿ (collective agreement) and qiyās (analogy). In Indonesian context, the use of maqāṣid in the fatwā process became popular during the 1990s. Nahdlatul Ulama only discussed this issue in the Cipasung National Conference of 1994. This organization allowed the use of maqāṣid as the method for producing fatwa as long as it does not contradict the Qur’an and Sunnah. However, since this decision, it has been rare for NU fatwas to use the concept of maqāṣid in drawing up Islamic legal opinion.

Toward Fiqh al-Nisā’

As mentioned above, the use of maqāsīd or maṣlaḥa (purposive-fiqh) to solve the problems of rereading gender issues in Islam began with the emergence of Muslim feminists (Indonesian: feminis baru) in the 1990s. Husein Muhammad, Wardah Hafidz, Masdar F. Mas’udi, Lies Marcoes, Dawam Rahardjo, Muslim Abdurrahman and many others are examples of Muslim scholars who use the perspective of gender in fighting for women rights in Islam.[17]

This emerging group attempted to develop maqāṣid as a methodological lens for identifying the compatibility between the discourse and practice of human rights in Islam, and Islam and gender rights in particular. They argued that the essence of the five necessities (Arabic: al-ḍarūriyyat al-khamsa) of sharia or maṣlaḥa is to establish the principles of justice and equality, which is very similar to the objectives of universal human rights. Those who use this concept believe that gender justice and equality in Islamic discourse and practice can be implemented through the use of maqāṣid. In their view, the five necessities are a basic foundation that enables a dialogue process between the message of the sacred text and the social reality. For these feminists, the failure of previous attempts in resolving gender problems within fiqh is due to the use of incorrect methods for rereading Islam, including the use of the maqāṣid theory.

However, it is worth noting that the concept of maqāṣid used and referred to by Indonesian Muslim scholars ist still influenced by al-Shāṭibī. Al-Shāṭibi’s maqāṣid has been widely employed by both Muslim scholars and gender advocates, but has not yet effectively offered a solution to gender-related issues in Islam that need an approach which goes beyond al- Shāṭibī’s view on maṣlaha. In addition, the concept of al-Shāṭibī’s maqāṣid can be used to establish male-oriented interpretations of Islam due to its limitedness in providing a way out of delicate issues, such as the contradiction between text and context that has long served as a source of gender injustice and discrimination within Islamic legal theory and jurisprudence. Some elements which contribute to the continuation of patriarchy within Islamic texts cannot be resolved by using al-Shāṭibī’s concept. In general, al-Shātibī’s maqāṣid does not a clear understand of how to proceed when Islamic texts apparently contradict public interest. It is true that al-Shāṭibī constructs the theory of kulliyāt and juz’iyyāt —the former being related to the universal principles of Islam and the latter related to the particular principles of Islam — to solve some contradictions, but the supremacy of the text is still primary (Opwis 2010). Prioritizing the supremacy of texts makes finding solutions to contemporary issues difficult, because the texts do not provide clear guidance or otherwise remain silent on issues, while the context always develops, over time and place.

So, the development of fiqh al-nisā’ needs a new conceptualization of maqāṣid, which differs from Shāṭibī’s concept that prioritizes the supremacy of the text. The approach of Najm al-Dīn al-Ṭūfī (b. 1276/7 d. 1316) is highly recommended in this regard, specifically because he provides a concrete solution on how to avoid contradictions between text and context. Before discussing al-Tūfī’s thought further, however, it is worth first defining first what is meant by fiqh al-nisā’ in the context of this paper. This term gained notoriety since International Conference on Population and Development (ICPD) held Cairo in 1994, which introduced women’s reproductive health (rights). Many Indonesian Muslim scholars and activists participated in this conference, including Masdar F. Mas’udi, Lies Marcoes, Husein Muhammad. In response to this international event, academia, civil society groups and women organizations in Indonesia conducted activities ranging from research to advocacyrelated to women’s reproductive rights in particular and Islam in general. Indonesian Islamic organizations and NGOs tackled the issue of reproductive rights through programs on Islamic jurisprudence and in programs for the Muslim community in pesantren. P3M (Perhimpunan Pengembangan Pesantren dan Masyarakat, Indonesian Society for Society and Pesantren), the Women’s Youth Wing of Nahdlatul Ulama, the Centre of Women’s Studies at the State Islamic University, Yogyakarta and many others worked together with male and female theologians to provide solid arguments in support of gender justice and equality.

Fiqh al-nisā’ is defined here as fiqh which is (1) focused on matters pertaining to women (fiqh fī al-nisā’), (2) from the perspective of women (fiqh min al-nisā’), and (3) for the dignity of women (fiqh fī al-nisā’). This definition is taken from the grammatical understanding of the term fiqh al-nisā’, the construction of whcih contains the meaning of fīmin and lī. Both Masdar F. Mas’udi and Husein Muhammad from Nahdlatul Ulama, the largest Muslim organization in Indonesia, take this approach. From this simple definition, fiqh al-nisā’ is then further broadened and developed into important topics regarding the position of women in fiqh. But the understanding of maqāṣid or maṣlaḥa used by Indonesian Muslim scholars remains strongly influenced by Shāṭibī and mainstream scholars, who are not able to consistently solve crucial issues such as polygamy, women’s leadership in the household and of course some issues regarding sexuality. The argument that kulliyāt must be prioritized over juz’iyyāt remains inadequate, because the former prioritizes textual evidence from the Qur’an or Sunna. When maṣlaḥa contradicts the textual evidence in these two foundational sources of Islam, the maṣlaḥa should be rejected.  This is what I was referring to by the term inter-textual approach, as mentioned above.

Al-Ṭūfī’s approach is best placed to resolve the issues around use of maṣlaḥa for the conceptual improvement of fiqh al-nisā’ (1993). Al-Tūfī is well-known in Indonesia, but deeper study and use of his concept in the public sphere of Islamic debate is relatively rare. Al-Ṭūfī was a Muslim jurist from Ibn Ḥanbal’s school of Islamic law.[18] Al-Ṭūfī’s conception of maṣlaḥa was compiled in a small treatise called al-Risāla fī Riʿāya al-Maṣlaḥa. The main thrust of his thought is that maṣlaḥa should be prioritized when it contradicts the textual evidence in the Qur’an and Sunnah and the consensus of scholars. Al-Ṭūfī states that the naṣṣ –the Qur’an and Sunna—and the consensus of ulama — ijmāʿ — sit atop the hierarchy of the nineteen sources of Islam (p. 23). These two foundational sources can either be in accordance or dissonance with maṣlaḥa. When the maṣlaḥa contradicts textual evidence from the Qur’an and Sunna and also ijmāʿ, al-Ṭūfī states that the maṣlaḥa should be selected in the first instance. The position of maṣlaḥa can be regarded as takhṣīṣ (emphasizing) or bayān (explaining) the naṣṣ and ijmāʿ (in al-Ṭūfī’s Arabic statement, wa in khālafahā wajaba taqdīm al-maṣlaḥa ʿalayhimā biṭarīq al-takhṣīṣ wa al-bayān lahumā... kamā taqaddama al-sunna ‘alā al-Qur’ān biṭarīq al-bayān) (ibid). This approach can contribute to solving the longstanding problem of the contradictions between naṣṣ and maṣlaḥa.

When responding to an opinion that maṣlaḥa is not equal to consensus, because the former is based on the qaṭʿī (cogent) textual evidence, while the latter is not, al-Ṭūfī stated that “inna riʿāya al-maslaha aqwā min al-ijmāʿ, wa yalzamu min dhālika annahā min adilla al-sharʿi, li anna al-aqwā min al-aqwā aqwā,..” surely the public interest is stronger than consensus therefore the strongest of the strongest is strongest (p. 25).

In more radical terms, al-Ṭūfī provides three arguments as to why maṣlaḥa should be prioritized over the naṣṣ and consensus. First, maṣlaḥa is a place of agreement and ijmāʿ is a place of disagreement and upholding that which is agreed is better than upholding that which is disagreed. Second, there are various nuṣūṣ (plural of naṣṣ, textual evidences of the Qur’an and Sunna) which contradict one another. They are the sources of dissenting opinions which are not accepted by sharia. Maṣlaha is the source of agreement which is praised by sharia and therefore adhering to the public interest is the better option. Third, there are many cases in which the Qur’an the Sunna is prioritized over the Qur’an, where the two contradict with one another.

With regard to the explanation above, al-Ṭūfī’s conception of maṣlaḥa can be used as principal interpretive foundation to construct fiqh al-nisā.’ Al-Tūfī’s prioritization of maṣlaḥa is very helpful in resolving important gender-related issues in Islam such as polygamy, inheritance, leadership, violence against women and so forth. Polygamy for instance, can be declared prohibited by using the logic of al-Ṭūfī, as maṣlaḥa is prioritized above the textual evidence of the Qur’an.

especially because his treatise on this matter is very brief and is not discussed in other works. It is common in classical fiqh and uṣūl al-fiqh that some works receive more attention and are elaborated on more extensively than other works. Sharḥ literally meaning explanation is performed when the work is tiny and mukhtaṣar is performed when the work is thick. Those who undertake both sharḥ and mukhtaṣar can be similar or different author. Both sharḥ and mukhtaṣar are often composed by the students of the author. In the case of al-Ṭūfī’s treatise, Rashīd Riḍa commented that al-Ṭūfī’s Al-Risāla fī riʿaya al-maṣlaḥa offers an understanding on the concept of maṣlaḥa not found in other works (Al-Tūfī 1993).

In the context of fiqh development in Indonesia, Munawir Sjadzali uses al-Ṭūfī’s concept on maṣlaḥa for his work on the reactualisation of Islam (Nafis 1995). Using the supremacy of maṣlaḥa over consensus (ijmāʿ) introduced by al-Ṭūfī, Sjadzali comes to the conclusion that inheritance can be divided equally between men and women in order to fulfill the objective of sharia (maqāṣid). Sjadzali refers to the objectives of sharia first introduced by al-Ṭūfī. Munawir’s attempt can be seen as an example of how Indonesian Muslim scholars have tried to use al-Ṭūfī’s ideas to solve the problems of Islamic law in Indonesia. However, Indonesian Muslim scholars since Sjadzali have not referred to the concept of the supremacy of maṣlaḥa over consensus.

Concluding remark

The robust tendency of patriarchal fiqh in Indonesia has marginalized alternative discourse empowering the rights of women Although Indonesian Muslims adhere to national laws, which recognize the equality of men and women, religion still has a significant influence on their daily lives. This is reflected in their appreciation of fiqh as one of most powerful elements of Islam that shapes the religiosity of Indonesian Muslims. Therefore, genderbased injustices and discrimination in the Muslim community are also often influenced by fiqh. As a result, the establishment of a new fiqh supportive of the rights of women — fiqh al-nisā’ — can help address these injustices. The concept of maqāṣid or maṣlaḥa introduced by Muslim legal theorists provides a potential starting point for the introduction of this fiqh.

As a concept, fiqh al-nisā’ remains superficial and needs further elaboration and explanation in order to serve as the foundation of women’s empowerment. So far, the challenge for Indonesian Muslim scholars is to formulate fiqh al-nisā’ at both the theoretical and practical levels. At the theoretical level, the prioritization of maṣlaḥa, such as introduced by al-Ṭūfī, serves as a promising platform for the conceptualization of fiqh alnisā’. But at the practical level, it remains difficult for most ulama in Indonesia to accept this approach. Nevertheless, factual experiences of gender-based injustices and discrimination will serve as modalities for constructing a robust conceptualization of fiqh al-nisā’. This further supports the need of Indonesian Muslims to have their own fiqh —Indonesian fiqh.

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End Note:

[1] Personally got involved in this project.
[2] http://nasional.inilah.com/read/detail/1336592/poligami-buku-bahagiakan-diri-dengan-satu-istri#.U5qjGBZm3dk, viewed on 13 June 2014.
[3] Fatwā Majelis Ulama Indonesia No. 9A/2008.
[4]  Hamka has a complete name Abdul Malik Karim Amrullah. He is renown as a Muslim reformist from Muhammadiyah.
[5] Munawar Chalil is a respected scholar of Muhammadiyah and wrote many books on Qur’an, history of Islam, women in Islam and other Islamic disciplines.
[6] Jusuf Wibisono is a Muslim politician and member of Jong Islamieten Bond (JIB) who wrote Monogami atau Poligami: Masalah Sepanjang Masa?
[7] Nurcholish Madjid is a Muslim scholar who promotes the importance of Indonesian Muslim to adopt the tradition of secularism, dividing the domain of mundane life and the domain of sacred life. Madjid established University of Paramadina located in Jakarta.
[8] Abdurrahman Wahid was the General Chairman of Nahdlatul Ulama, 1984-199 and President of Indonesia, 1999-2001. Wachid is renown with his contribution for the indigenization of Islam in Indonesia.
[9] Jalaluddin Rahmat is renowned as a Muslim scholar who inclines to Shia. In the 1990s, Rahmat is recognized for his idea on the actualization of Islam in the modern day of Indonesia.
[10] Bahsul Masa’il (Indonesian way of in saying baḥth al-masāʿil) is the official forum of Nahdlatul Ulama to discuss and decide a fatwā. This forum operates from the level of the central board of NU to the level of district and sub-district chapters of NU. Interestingly, the bahsul masa’il within NU is not only held by the organization (jamʿiyya), but also by the community of NU (jamaʿa), therefore we can see this forum is practiced in various pesantrens of NU in whole Indonesia.
[11] See Muhammad Imara, Qasim Amin, al-A’mal al-Kamila, Cairo: Dar al-Sharuq, 1989. This is a very complete account on the thought of Qasim Amin. See also http://www.aljadid.com/content/century-after-qasim-amin-fictive-kinship-and-historical-uses-tahrir-al-mara.
[12]  Al-Manār was written by Muḥammad ʿAbduh and Rashīd Riḍā.
[13] “Wa inim ra’atun khafat min ba’liha nushuzan au I’radlan fa la junaha ‘alaihima au yusliha bainahuma sulhan wa sulhu khair.”
[14] This is quoted by Sayyid Abdurrahman from Bujayrimī ʿalā al-Iqnā’, one of most highly-considered fiqh books among ulamas in Indonesia. The Bughya al-Mustarshidin has become a famous reference for pesantren ulamas and students in Indonesia (Ḥusayn b. ʿUmar, n.d).
[15] This talkshow was broadcasted by Indonesiar TV station on 31 March 2011. It can be see at https://www.youtube.com/watch?v=JSD6oQfEHpE&list=PL0DACC36F8C958D10, viewed on 2 May 2013.
[16] See al-Ghazālī in book al-Mustashfa, Vol. I. p. 286
[17] These figures organized special workshop on Islam and feminism by inviting Riffat Hasan in Bogor, West Java.
[18] More elaboration on the history of al-Ṭūfī, see http://referenceworks.brillonline.com/entries/encyclopaedia-of-islam-2/al-tufi-COM_1244?s.num=53&s.rows=100&s., viewed on 10 June 2014.

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