NIKĀḤ, WILĀYAH , AND QIWĀMAH : EVALUATING FEMINIST CRITIQUES FROM AN ISLAMIC MORAL PERSPECTIVE

Abstract

Critique of feminist analysis of nikāh (marriage), wilayah (guardianship), and qiwamah (male authority/responsibility) in Islamic Family Law within an Islamic epistemological framework. While much feminist critique of Islamic Family Law is based on autonomy, equality and symmetry of power as the main indicators of justice, this paper posits that feminist critiques of nikāh, wilayah and qiwamah have been limited by an epistemic disconnect from the legal-moral structure that is embedded in the Islamic faith. The paper uses guidance from the Quran, historical jurisprudence and the maqasid al sharia to demonstrate that nikah is a covenant that generates reciprocal rights and responsibilities for both spouses; wilaya is a form of conditional protection/governance; and qiwama represents an ethically bounded responsibility, and not a right or privilege. Using the concepts of obligation, account, and proportional justice, the paper will demonstrate that Islamic Family Law has as its goal to create social cohesion and ethical justice, and not to further patriarchal interests. Ultimately, the paper posits that any reform to Islamic Family Law should be grounded within the Islamic moral system, and thus reflect an internal, epistemological coherence.