Ethics and Gender Equality in Islam: A Constructivist Approach

Ethics and Gender Equality in Islam Ethics and Gender Equality in Islam: A Constructivist Approach Mariam Al-Attar P atriarchal religious discourses, juristic rulings and modern fiqh-based family laws are often justified on the grounds that they are implementation of Shariʿa, which is commonly understood by Muslims to be divine and just. While we can agree that within the framework of Islamic faith Shariʿa is divine and just, the problem is that it is often erroneously conflated with the body of legal rulings (fiqh) that were formulated by pre-modern jurists. Islamic Shariʿa, as many modern Muslim scholars have persuasively argued, is first and foremost an ethical paradigm that presents the totality of the moral teachings and norms found in the Qurʾan and Sunna. However, the understanding of Shariʿa as an ethical paradigm (and the implications of this) remains a perspective that is not widely shared. Even if that understanding is to successfully take root, there are still further important questions with which we need to grapple. Such questions have been largely ignored by contemporary Muslim scholars. They include: What is the nature of morality and what sources of moral knowledge could inform egalitarian Muslim gender norms? Are norms simply to be discovered from textual sources or the natural world? What is the role for human reasoning and specifically ethical reasoning in these processes? And what shapes and characterizes the kind of ethical reasoning that can unmask patriarchy and lay the foundation for gender equality? These questions, although theoretical in nature, are important for establishing Justice and Beauty in Muslim Marriage.indd 288 08/04/22 4:20 pm ETHICS AND GENDER EQUALITY IN ISLAM 289 a philosophical foundation for ethical thought. They cannot be disregarded, especially in a time when the ethical perspective is being prioritized by many Muslims. The main aim of this chapter is to engage with these questions and attempt to arrive at reasonable answers based on classical Islamic theories that pertain to ethics and recent developments in moral philosophy. The first section of the chapter reviews how various issues related to ethics (as a discourse with distinct questions) have been discussed under different genres of Islamic disciplines including kalām (speculative theology), fiqh and uṣūl al-fiqh (law and jurisprudence), taṣawuf (Islamic mysticism) and falsafa (philosophy). It explicates the challenges and implications of the fragmental and piecemeal approach to ethics and the hegemony of Islamic jurisprudence over other genres in the course of the history of this intellectual tradition. It also presents modern developments related to the study of ethics in Islamic tradition and the potentialities for a systematic inquiry in ethics as a field of knowledge. However, this section by no means attempts to provide a comprehensive review of the present status of works on ethics or examine all ethical issues in different Islamic disciplines in detail, since this is beyond the objectives of this chapter. The second section focuses on the nature of moral values (the foundations of morality) and the nature and formation of moral judgements (a˕kām). In this section, I argue for a set of rational criteria for evaluating moral judgements, by building on the theory of rational obligation (al-taklīf al-͑aqlī) and the presuppositions of moral judgements (shurūṭ ḥusn al-taklīf) introduced by the earliest Muslim theologians, the Muʿtazilites. My inquiry into the nature of moral judgements and the foundations of morality is in fact motivated by the ideas and arguments that I encountered in the works of kalām, especially in al-Mughnī fī Abwāb al-Tawḥīd wa al-ʿAdl by the tenth/eleventh-century scholar ʿAbd al-Jabbār ibn Ahmad (d. 415 /1025 ). It prompted me to search for a refinement and elucidation of some rudimentary ideas that are present in his work like those related to the rationality and objectivity of moral judgements. I could not find what I was looking for in the works of his successors or his opponents. I found it elsewhere, in the later developments made in the field of contemporary moral philosophy. In this chapter, I also develop an understanding of two of those presuppositions that were not fully elaborated in the past, namely rationality and objectivity. In doing so, I build upon some contemporary understandings of the rules of practical reason, rules that any moral judgement needs to abide by in order Justice and Beauty in Muslim Marriage.indd 289 08/04/22 4:20 pm 290 JUSTICE AND BEAUTY IN MUSLIM MARRIAGE to be true. I argue that moral judgements (a˕kām) are, in fact, constructed rather than discovered or invented and that by adopting a form of constructivism we can avoid both ethical relativism according to which anything goes, and moral absolutism which implies that moral judgements, rules and regulations are static and absolute. I contend that by embracing universal Qurʾanic moral values and the rules of practical reason, we can develop criteria for assessing judgements, for example in relation to gender relations and rights. I conclude with some reflections on the implications of my argument for the question of norm making and gender justice. 1. ETHICS IN THE ISLAMIC DISCIPLINES The importance of ethics has been emphasized by many Muslim reformers who have argued that the classical juristic tradition must be examined and interrogated through what Khaled Abou El Fadl (2017, p. 9) calls ‘the probative lens of ethical and moral theory’. In the context of religious societies, the cultivation of ethos or an ethical dimension also ‘prevents the emergence of religious radicalism, based on ignorance, exclusiveness, intolerance and even violence’, as noted by Raid al-Daghistani (2018, p. 2). Ebrahim Moosa also rightly maintains that ‘Muslims today must work to make the ethical apparatus the lens through which one evaluates practices’ (2020, p. 245) and that ‘ethics cannot be beyond reason and rationality’ (2017, p. xiv). I believe that trying to understand or develop Islamic ethics based only on divine texts, without scrutinizing textual and historical contexts and ontological and epistemological assumptions, is an impossible mission. Indeed, pretending that one can construct ethics from the sacred texts without taking into consideration Muslim thought is tantamount to denying the very philosophical premises of a culture or a tradition, as argued by Zahra Ayubi (2019, p. 278). Different theo-philosophical, ontological and epistemological premises, including the conception of human being, divinity and moral values, informed and will always inform interpretations of the sacred text and the understanding of morality. Asma Barlas, amina wadud, Kecia Ali and other scholars who engage with gender and Islam have focused on critiquing the theological presuppositions related to the God–human relationship that informs how law is created and discussed (Ahmed, 2019, p. 126). Nevertheless, theological and philosophical presuppositions about the meaning of moral judgements and the nature Justice and Beauty in Muslim Marriage.indd 290 08/04/22 4:20 pm ETHICS AND GENDER EQUALITY IN ISLAM 291 of moral values, including justice, are among the foundational assumptions of Islamic thought that also need to be critiqued in a way that challenges the patriarchal assumptions that permeate judgements related to gender. Ethics or moral philosophy as understood today1 has never been a separate domain of inquiry in traditional Islamic disciplines. This does not mean that morality was not a concern to classical Muslim scholars. On the contrary, all the religious science disciplines were pervaded by moral concerns. Contemporary scholars writing on Islamic ethics investigate issues that pertain to ethics in different classical works that belong to the established field of religious disciplines, and thus classify ethical issues according to the discipline under which it is discussed. Therefore, we have ethics in kalām, fiqh, taṣawuf and of course falsafa (philosophy).2 Questions related to metaethics, that is the meaning of obligation, right and wrong, good and evil, and the sources of our moral knowledge, were mainly dealt with in kalām and usūl al-fiqh. Fiqh is mainly focused on rules and regulations derived from the sources established in usūl al-fiqh. Thus, we can say that it is closer to normative ethics and practical or applied ethics. Of course, fiqh, uṣūl al-fiqh andʿilm al-kalām are not disciplines that are exclusively concerned with ethics. Yet, among contemporary scholars, Kevin Reinhart argues that fiqh and usūl al-fiqh must be the focus of the discussion of Islamic ethics since ethics is basically a practical science that studies normative actions (Reinhart, 1983, p. 186). Other scholars, contending the hegemony of fiqh over all other Islamic disciplines, argue for the need of a clear demarcation between what is legal and what is ethical (Rahman, 2021). Nevertheless, to understand any normative action, talk or thought we need to understand what it assumes and presupposes. Presuppositions of normative judgements, 1 Ethics or the philosophy of morality investigates and questions the prevailing moral values and norms and seeks a deeper understanding of the nature of morality. It is now usually divided into three branches: normative ethics, metaethics and applied ethics. While normative ethics investigates norms, principles and rules that should guide human behaviour and can include deontological, consequentialist, virtue ethics or a combination of these, metaethics investigates the meaning and the foundations of those norms and principles. Examples of metaethical theories include natural law theory, divine command theory, intuitionism, prescriptivism and other theories that ground normative ethics. See Sayre-McCord (2014). Applied ethics is the field of inquiry that applies moral theories and norms to various human activities like medicine, business, engineering, finance, environment, etc. 2 For example, see Ansari (1989) and Subḥi (1969), who was one of the first Arab thinkers to study ethics in the kalām tradition and in Sufism in his book on moral philosophy in Islamic thought. Justice and Beauty in Muslim Marriage.indd 291 08/04/22 4:20 pm 292 JUSTICE AND BEAUTY IN MUSLIM MARRIAGE including psychological, epistemological and metaphysical, are mainly discussed in the works of kalām, as we will see below. George F. Hourani rightly maintained that ‘kalām is the second major occurrence in history of a profound discussion on the meanings and general content of ethical concepts. The first being that of the ancient Greek philosophers’ (Hourani, 1985, p. 21). In the works of the Sufis and the philosophers who produced the classical works of akhlāq literature, the focus is mainly on virtue ethics, that is, the moral virtues and the refinement of individual character. This diverse literature, known traditionally as akhlāq, also includes teachings of Prophet Muhammad and other religious figures and philosophical reflections. In what follows, I briefly examine the ethical questions tackled in kalām, fiqh and usūl al-fiqh and falsafa tradition. 1.1 Speculative theology (kalām) In the field of kalām, as mentioned above, various issues pertaining to metaethical questions were discussed, such as human free will and capacity for action, the nature of moral values, moral ontology and moral epistemology. This does not mean that kalām has mainly been about ethical and metaethical issues. It is primarily concerned with establishing true religious belief. Thus, it was sometimes called uṣūl al-dīn, which literally means ‘the foundations of religion’, as it seeks to understand and defend basic Islamic beliefs, including the nature and the meaning of divine attributes, the relation between God and the world, and the implication of this relation. In kalām, discussions about the divine attribute of justice build upon justice as understood in this world. The discussion of the divine attribute of goodness also starts by exploring the value of goodness and what it means for something or for an action to be good. Important ideas and theories that are related to metaethical issues can be reconstructed from the views of the classical Muslim scholars, since a guiding principle in the development of early kalām was the analogy from the seen to the unseen (qiyās al-ghāʾib ʿala al-shāhid). Three schools of ʿilm al-kalām emerged in Islam: the Muʿtazilites, the Ashʿarites and the Māturidis. The first two schools often held opposite views regarding different issues, including those pertaining to ethics, while the Māturidi school witnessed developments and varieties of positions advocated by various Māturidi scholars. The views of al-Māturidi (the epitome of the school) that are related to different ethical concerns were closer to the Justice and Beauty in Muslim Marriage.indd 292 08/04/22 4:20 pm ETHICS AND GENDER EQUALITY IN ISLAM 293 Muʿtazilites than the Ashʿarites (Harvey, 2018, p. 38). The Muʿtazilite views were later incorporated in the Shiʿite schools of thought, while the Ashʿarite and Māturidite views prevailed in the Sunni thought (see Kadivar in this volume). The Muʿtazilites lost their popularity in Sunni Islam for political reasons that are beyond the concern of this chapter. However, they represent the school of thought that prevailed in Sunni Islam from the early eighth century until the end of the tenth century. It seems that it is only after the integration of kalām and fiqh in the eleventh century by Imām al-Ḥaramayn al-Juwaynī (d. 419 /1085 ) that the Ashʿarite theology was integrated into the body of Sunni orthodoxy (Widigdo, 2019, p. 166). But it is important to mention that not all Sunnis are Ashʿarites and that most ordinary Muslims today do not identify with any school of kalām. This is partly due to the fact that the prevailing discourse does not favour engagement in kalām and partly because the polemics between different schools are seen as matters of the past that are not relevant to today’s concerns. Ashʿarite theologians adhered to a position known today as ‘theological voluntarism’, which is in fact a metaethical theory that is disputed by the more rationally minded scholars in the present and by those who are said to have Muʿtazilite tendencies among the early jurists and theologians. Theological voluntarism is a metaethical theory that centres divine absolute will rather than God’s justice or goodness in determining moral and ethical concepts. Hence, goodness or justice, for example, are whatever God wills and cannot be defined or understood otherwise. However, how do we determine God’s will and intentions? Our understandings of God’s will and intentions were in fact constructed by religious scholars (ʿulamā’) who had a system of values and interests that reflected their times and customs. Their context influenced the way they understood the divine message and the ethical concepts they derived from that understanding. Thus, ethical or theological voluntarism calls upon God’s authority to sanctify human-made interpretations and understandings. Although held by scholars who presumably had good intentions, this theory has been utilized to justify political and social oppressions in the name of God. This is similar in other religions and traditions. As noted by J. B. Schneewind (2010, p. 206), the ‘fear that voluntarism had unacceptable political implications was never out of sight and voluntarism seemed to pose a problem for anyone who shared moral and political concerns’. Voluntarism, as argued by contemporary Muslim scholar Ramon Harvey, clearly ‘gives the opportunity for political authority to be held in God’s name’ (2018, p. 83). Theological voluntarism was held so strongly that when it came to the Justice and Beauty in Muslim Marriage.indd 293 08/04/22 4:20 pm 294 JUSTICE AND BEAUTY IN MUSLIM MARRIAGE question of the objectives of the Shariʿa (al-maqāṣid al-sharīʿa), justice for and in the society was not included among the five universal necessities (al-kulliyāt al-khamsa) that were considered the divine purposes (Askari and Mirakhor, 2020, pp. 17–18). This has been noted by many contemporary scholars. The divine purposes were articulated in the works of uṣūl al-fiqh and kalām. The theory of maqāṣid will be briefly discussed in the next part. 1.2 Islamic jurisprudence (fiqh and usҕul al-fiqh) A large number of fiqh rules and regulations are related to morality, as they tend to regularize human actions and behaviour. One can say that it is indeed the closest discipline to normative ethics. Classical Muslim jurists referred to fiqh manuals when passing their judgements. However, not all fiqh rules and principles are legal in nature. Some are moral and cannot be sanctioned by law and others are related to dietary obligations and rituals. The sources of law and ethics that are traditionally accepted by the majority of classical Muslim scholars include the Qurʾan, the Sunna, qiyās (reasoning by analogy) and ijmāʿ (consensus). Islamic normative ethics is a combination of different discourses merging duty-based rules of fiqh (which can be compared to deontological (duty-based) ethics) with a teleological or a consequentialist (results-based) approach of maslaha (public well-being or interest) and maqāṣid. For the early jurists, who accepted istiḥsān (reason and preference) as a source for deriving moral and legal judgements, the criteria for the rightness of an action were related to ma̓la˕a. Later, the principle of isti˕sān as a source of law was disputed by jurists who were eager to ground all the judgements and rules in revelation and the prophetic tradition. This was the position of al-Shāfiʿī (d. 820 ), who is often considered to be the founder of legal theory or uṣūl al-fiqh. Al-qiyās (reasoning by analogy) and al-ijmāʿ (consensus) allowed the jurists to extrapolate the law and apply it to all aspects of life while still tracing it back to a divine foundation. Many of the legal norms were thus considered and are still considered divine, immutable and absolute.3 Laws and regulations of fiqh are generally considered by the jurists and the common people to be ‘discovered not produced’ (Reinhart, 1983, p. 188), which is 3 For a critique of the methodology of uṣūl al-fiqh (the principles of jurisprudence), see Nevin Reda’s contribution to this volume. For an approach to fiqh that operates within the framework of ‘rational ethics’, see Mohsen Kadivar’s chapter in this volume. Justice and Beauty in Muslim Marriage.indd 294 08/04/22 4:20 pm ETHICS AND GENDER EQUALITY IN ISLAM 295 disputed by many Muslim and non-Muslim scholars. Neither all law nor all morality is discovered, as will be argued in the second part of this chapter. Many modern and contemporary Muslim scholars find the theory of maqāṣid al-sharīʿa an adequate tool that can help in amending some outdated fiqh rules constructed by medieval Muslim scholars. The maqāṣid theory, notably, has become one of the ‘main religious frameworks guiding contemporary Islamic ethical deliberations’ (Abou-Bakr and Al-Sharmani, 2020, p. 36). However, these maqāṣid or purposes, as articulated by medieval Muslim jurists, represent the ‘interests’ of a religio-political community who wished to preserve religion, life, intellect, property and family. These interests, as stated by Ebrahim Moosa (2017, p. xiv), are not moral imperatives. Traditionally the maqāṣid were articulated by the Ashʿarite theologians, who derived these aims or purposes through the induction process from specific legal rules and judgements. However, there is also a realization that fiqh-based ijtihād alone is no longer adequate to assess modern developments, and that there exists a ‘dire need to move from a juristic towards an ethical approach in dealing with emerging issues’ (al-Khaṭīb, 2019, p. 5). Also, it is important to emphasize that judgements (a˕kām) in Islamic thought, whether moral or legal, include the obligatory (wājib), recommended (mustaḥab), permissible (mubāḥ), discouraged (makrūh) and prohibited (maḥẓūr). These judgements are the judgements of actions or behaviours of rational agents (al-mukallafīn). In theory, all Islamic laws are divided into two categories – ʿibādāt (concerning ritual worship) and muʿāmalāt (concerning interactions between humans) – and it is within the latter that ‘innovations or creative determinations are favored’ (Abou El Fadl, 2016, p. 26). Moreover, the earliest Muslim theologians, the Muʿtazilites, distinguished between what they called rational obligation (taklīf ʿaqlī) and religious obligation (taklīf samʿī) (Al-Attar, 2010, p. 77). Any reconstruction of moral theories that are compatible with contemporary morality and relevant to current moral concern thus belongs to the realm of muʿāmalāt and al-taklīf ʿaqlī and is mainly concerned with what is obliged by reason without contradicting what is obliged by revelation. 1.3 Ethics (‫ޏ‬ilm al-akhlāq) Akhlāq refers to ethics or moral philosophy. However, ‘akhlāq’ in Arabic, like ‘ethics’ in English, is often used to refer to a diverse genre of literature, Justice and Beauty in Muslim Marriage.indd 295 08/04/22 4:20 pm 296 JUSTICE AND BEAUTY IN MUSLIM MARRIAGE including moral philosophy or philosophical ethics. The literature of akhlāq ‘spans materials as diverse as sayings of the Prophet and other pious figures, philosophers’ classification of virtue and Sufi descriptions of personal and spiritual development’ (Vishanoff, 2020, p. 12). But it is akhlāq that deals with questions that are both profound and philosophically interesting which is the focus of this chapter. Akhlāq, falsafat al-akhlāq or ‘ilm al-akhlāq are often used synonymously to refer to moral philosophy, which is evident from the works written by Ahmad Amin (1953), Tawfīq al-̜awīl (1979) and many others who focused on philosophical ethics in Islam like Ahmad Maḥmoud Subḥi (1969) and Muhammad Yusef Mousa (1963). Philosophically interesting questions are those about the nature and foundations of morality, whether they are tackled in kalām, fiqh, akhlāq or elsewhere. However, when we talk about the akhlāq tradition in early Islamic culture we are referring to the works written by early Muslim philosophers such as al-Kindī (d. 256 /870 ), al-Farabi (d. 338 /950 ) and Ibn Miskawayh (d. 421 /1030 ), who is labelled as the chief moral philosopher of Islam. These and many other Muslim philosophers who followed in the Greek tradition since the middle of the ninth century developed a version of virtue ethics in the tradition of Aristotle. The akhlāq tradition is sometimes singled out as ‘the philosophical’ tradition in Islamic ethics, but that is only because it was developed by those who were recognized as philosophers because they engaged with the Greek philosophical tradition. What both virtue ethics in the akhlāq tradition and Sufi ethics have in common is the preoccupation with the individual and the refinement of character. No doubt one’s character contributes to one’s well-being in this world and salvation in the Hereafter, as well as to the establishment of better social relations. As described by Cyrus Zargar (2017, p. 301), virtue ethics in both Islamic philosophy and Sufism ‘responds to the profoundest of human desires, a desire that lies at the heart of what it means to be human, the desire for selfperfection’. Virtue ethics also persisted as the dominant approach in Western moral philosophy until at least the Enlightenment. It suffered a momentary eclipse during the nineteenth century, but re-emerged in Anglo-American philosophy in the late 1950s. But it is currently one of three major approaches in normative ethics (Hursthouse and Pettigrove, 2018). It is important to mention that each of the above-mentioned approaches to normative ethics can make room for virtues, consequences and rules. Indeed, any plausible normative ethical theory will have something to say about all three (Hursthouse and Pettigrove, 2018). Yet, one of the main criticisms raised against virtue ethics Justice and Beauty in Muslim Marriage.indd 296 08/04/22 4:20 pm ETHICS AND GENDER EQUALITY IN ISLAM 297 is that it is, in principle, unable to provide action-oriented guidance. It seems to me that ethical theories which are able to provide action-guidance should be the focus of ethics that aspires to make a change and ultimately result in institutional reform. Recently, Zahra Ayubi (2019) critically investigated texts that belong to the akhlāq tradition, unveiling the hierarchical nature and biases that prevail in them. She concluded that these texts are clearly written for the elite men of the time, excluding women and other less fortunate men. Ethics in the works studied by Ayubi has been constructed as an exclusively male tradition, which is not surprising, given the fact that the authors of those texts lived in an era when patriarchy was still the dominant norm everywhere and was approved by all cultures and religious traditions (Al-Attar, 2013, p. 73). 1.4 Contemporary developments Over the course of history of Islamic intellectual tradition, fiqh became the dominant discourse, with detrimental consequences for the question of gender. For example, the common understanding of Shariʿa as divine law and synonymous with fiqh has become widespread. This understanding furthermore conceals the patriarchal contexts and social norms of early jurists, which influenced their processes of norm and law-making. It also results in conflating ethics with law, with little reflection on the former (that is, what is legal according to the jurists is by definition ethical since it is assumed to represent the Shariʿa). However, some scholars have recently pointed out that ‘with the weakening of the classical dominant religious worldview that used to govern the entire society, ethics became an independent and interdisciplinary philosophical field’ (Hashas and al-Khaṭīb, 2020, p. 3). A number of recent developments in Islamic intellectual thought that emphasize ethics are promising. First, there is resurgence of the Muʿtazilite ethical views, which is evident in the works of many modern and contemporary Muslim scholars and reformers starting with Muḥammad ʿAbduh (d. 1905), Tahar Haddad (d. 1935) and Ahmad Amin (d. 1953), among others. Second, there is growing scholarship that investigates the Qurʾan as an ethical text (for example, Draz (2008, originally published in 1951), Rahbar (1960), Izutsu (1959), Rahman (1980) and many others).4 Additionally, classical works and 4 For a thematic and structural analysis and critique of these attempts, see Rashwānī (2017). Justice and Beauty in Muslim Marriage.indd 297 08/04/22 4:20 pm 298 JUSTICE AND BEAUTY IN MUSLIM MARRIAGE manuscripts in theology, philosophy and Sufism that are attentive to ethics are being published and translations and engagement with contemporary western ethical theories have appeared. Moreover, there is now a growing trend of engagement with different fields of applied ethics such as bioethics, business ethics, environmental ethics, etc.5 Also, a growing number of scholars identify with Islamic feminism. They are challenging and exposing outdated patriarchal legal postulates, such as qiwāma and wilāya, that allow for discrimination against half of the society (see, for example, Mir-Hosseini et al., 2015). Their insights into the meaning of religious texts prioritize ethics and ethical reasoning over slavish adherence to the prevailing legalistic discourses. Books are being published under the rubric of Islamic ethics that include different sections looking into the ethical dimension of various Islamic disciplines.6 Such recent intellectual efforts reveal a growing awareness of the significance of ethics and ethical reasoning. 7 However, that does not compensate for the true engagement with ethics as an important field of inquiry, with its own questions, concepts, theories and problems.8 I believe that if one is concerned with questions related to ethics rather than the history of ethical thought in Islam, then identifying and discussing different normative and metaethical theories in Islamic thought might be the more fecund approach. Also, classical Islamic disciplines are usually themselves classified according to sectorial affiliations. Needless to say, ethics and ethical reasoning transcend sectorial affiliations and polemics found in many 5 See the Journal of Islamic Ethics first published by Brill in 2017. For example, through correspondence with editors I am aware of two edited volumes being prepared that will include parts on Qurʾanic ethics, theological ethics, Sufi ethics, legal ethics and practical ethics. They will be published by Routledge under the title The Routledge Handbook of Islamic Ethics and by Bloomsbury under the provisional title of Islamic Ethics. The classification of ethics into scriptural, theological and philosophical partly follows Fakhry (1991). 7 For a more comprehensive review of the main works that contributed to the development of Islamic ethics, see Hashas and al-Khaṭīb (2020). 8 Examples of works that engage with ethics as a field of inquiry in classical Islamic thought include Hourani (1985), which contains sixteen articles published between 1960 and 1982. Most of the articles, including the article on al-Juwaynī, al-Ghazāli and Ibn Hazm, are centred around the controversy about the ontological status of moral values and the source of our knowledge of them. Hourani’s Islamic Rationalism: The Ethics of ʿAbd al-Jabbār (1971) is a pioneering work and the first systematic attempt in the English language to engage with philosophical ethics found in the work of kalām. The ninth Giorgio Levi Della Vida Conference in 1983, which focused on ‘Ethics in Islam’, marks a turning point in studying Islamic ethics (proceedings available at Hovannisian, 1985), in addition to articles of Richard M. Frank (2005; 2007; 2008) related to ethics in the work of kalām. An important article related to the nature of moral values in Islamic thought was written by the Lebanese scholar Michael E. Marmura (1994). 6 Justice and Beauty in Muslim Marriage.indd 298 08/04/22 4:20 pm ETHICS AND GENDER EQUALITY IN ISLAM 299 works of kalām. Valid ethical arguments trump any sectorial affiliations and cannot be found under the realm of any of the above-mentioned disciplines. A serious engagement with questions of ethics requires, I contend, developing theories that connect and build on the ethical theories and norms found in the above-mentioned genres of Islamic disciplines in light of contemporary notions of justice and developments in moral philosophy. After all, we need to remember that some of the great scholars of the past fully engaged with the Hellenistic world. They assimilated philosophical theories and ideas from Greek philosophy that prevailed in the time. Such scholars include not only philosophers such as al-Farabi (d. 339 /950 ), Ibn Sina (d. 427 /1037 ) and Ibn Rushd (d. 595 /1198 ), but also theologians and jurists such as Abū Hamīd al-Ghazāli (d. 505 /1111 ) and Fakhr al-Dīn al-Rāzī (d. 606 /1209 ), among others.9 Indeed, contemporary Muslim scholars need to engage with different philosophical and scientific traditions and keep up to date with the latest fruits of humans’ endeavours while staying faithful to their own tradition. An important development in contemporary ethical thought is a set of theories that adopt a constructivist approach. It likely developed in response to the critiques raised against different versions of deontological and consequentialist theories in ethics, and the assumptions that underlie these theories, most importantly absolutism. The term ‘constructivism’ itself entered debates in moral theory with John Rawls’ seminal Dewey Lecture ‘Kantian Constructivism in Moral Theory’ (1980). Constructivists ‘aim to develop a non-skeptical, non-realist account of normative truth’ (Barry, 2018, p. 386). Moral constructivism is ‘a significant view in metaethics that is often contrasted with moral realism10 and expressivism’,11 as argued by Muhammad Legenhausen (n.d.). This indicates that morality is not absolute and static, nor is it relative to individuals or societies. Moral norms do not exist independently but are constructed by human deliberation, taking into consideration universal moral values such as, for example, the Qurʾanic values of ʿadl and iḥsān and also the 9 For more on Islamic philosophy in general, see Khalidi (2005), Adamson (2016), LópezFarjeat (2021). 10 Moral realism is the view that there are objective, mind-independent facts of the matter about which actions are right and which wrong, and which things are good and which bad. 11 Expressivism is a theory about the subject matter of morality, about the nature of moral thought and about the meaning of moral language. It suggests that the function of moral language is to express desire like attitudes. Thus, it is a version of ethical relativism. See van Roojen (2015). Justice and Beauty in Muslim Marriage.indd 299 08/04/22 4:20 pm 300 JUSTICE AND BEAUTY IN MUSLIM MARRIAGE relevant social context. It is true that traditionally, most religious thinkers in the West and in the Islamic tradition have been moral realists. However, this is no longer the case today. As Kevin Jung notes, ‘Contemporary religious ethicists often implicitly, if not explicitly, endorse antirealism’ (2018, p. 8). I first came across the concept of constructivism when I was working on a paper on food ethics in Islam and read a chapter by Ebrahim Moosa (2009) in which he argued for a constructivist approach to ethics. I was reminded of the concept again while reading ‘al-Akhlāq wal ‘Aql’ or ‘Ethics and Reason: A Critique of Western Philosophy’ by Adel Daher (1990), the Lebanese Arab philosopher who is mainly concerned with ethics and political philosophy. Daher does not mention constructivism, but it seems obvious that his views are compatible with a version of constructivism that is close to John Rawls’ interpretation of Kant. Similarly, I have found that contemporary Islamic feminists and reformers often talk of ‘constructing’ norms and moral values that build upon both Islamic principles and universal human rights. For example, different derivatives of the word ‘construct’ (including constructing, constructed, construction) are used more than 150 times in amina wadud’s Inside the Gender Jihad (2006) and 125 times in Men in Charge? edited by Mir-Hosseini et al. (2015). As far as I know the term was popularized by the late Indian thinker and reformer Muhammad Iqbal, who wrote The Reconstruction of Religious Thought in Islam (1934). The key word ‘Reconstruction’ in the title has connotations of rebuilding and renewing, using a mixture of pre-existing and new materials. In this work Iqbal makes substantial reference to German thinkers, including Kant, Hegel, Goethe and Schopenhauer, as well as French thinkers such as Bergson and Descartes. 2. ANCHORING MORALITY AND ASSESSING CONSTRUCTED JUDGEMENTS In our deliberations we usually seek to be objective, which mainly indicates seeking an unbiased, true judgement. However, whether there is such a thing as objective morality is often disputed. In what follows I defend the view that we can construct objective moral principles and judgements, which is a view that opposes subjectivist ethics and different kinds of ethical relativism.12 12 Subjectivist ethics is the view that morality is grounded in individuals’ preferences and that there are no other grounds for morality. Some theories that tend to explain morality endorse Justice and Beauty in Muslim Marriage.indd 300 08/04/22 4:20 pm ETHICS AND GENDER EQUALITY IN ISLAM 301 To develop an understanding of objectivity and what it means for a moral judgement to be objective, we need to look into the nature of value judgements, good and bad (al-hụ sn wal qubh)̣ . This is because moral judgements, whether obligatory (wājib), recommended (mustahṣ an), permissible (mubāh)̣ , discouraged (makrūh) or prohibited (mahẓ ụ̄ r), are grounded in value judgements that can be classified as good (hụ sn) and bad (qubh)̣ . Thus, value judgements, good and bad, provide the foundations of any moral judgements. Grounding moral judgements in value judgements allows for rationalization in the field of ethics. As such, one could argue that what is forbidden is forbidden because it is bad, and that what is obligatory is obligatory because it is good and necessary to prevent evil, and so on. 2.1 The grounds of normative judgements – anchoring morality13 Classical Islamic scholars looked into the nature of value judgements good (˕usn) and bad (qubḥ) and developed different views about the nature of good and bad. This means that they developed different understandings of the foundations or grounds of moral judgements. ʿAbd al-Jabbār, a Muslim theologian from the late tenth century, said that: Acts known by reason to be evil (al-qabīḥ al-ʿaqlī) such as ‘wrongdoing’ and ‘lying’ have to be discerned from other things by something characteristic to it (li-amr yakhtaṣu bihi) … The reason for their being evil must be intelligible such as having a peculiar state (ḥāl), or a determinant cause (maʿnā) or due to the state of their agent. For there is no difference between saying that they are evil for an unintelligible reason, and saying that they are evil for no reason at all. (ʿAbd al-Jabbār. 1958– 65, vol. 6, part 1, p. 57) In other words, ʿAbd al-Jabbār distinguished between three positions regarding the ultimate grounds of goodness or badness. The first position is of this view, arguing that good and evil only mean that one is perceived with aversion or attraction and that there is no objective truth behind our moral judgements. Subjectivism in ethics is a type of moral relativism and moral relativism is a very problematic position to endorse. Most of the philosophers in western and Islamic traditions came up with theories that would explain the objective nature of morality. 13 This section is partly based on the sixth chapter of my book Islamic Ethics (2010), particularly the section ‘Grounds of Normative Judgments: Good and Evil’ (p. 123–35). Justice and Beauty in Muslim Marriage.indd 301 08/04/22 4:20 pm 302 JUSTICE AND BEAUTY IN MUSLIM MARRIAGE those who grounded morality in a determinate natural cause (maʿnā) inherent in things and actions. If good and bad depends on some intrinsic property of the action, then it is necessarily objective as it does not depend on the perceiver. ʿAbd al-Jabbār criticized this view, which is ascribed to some earlier Muʿtazilites. For him good and bad are not attributes that are added to the attributes of the action or to an event related to it. Value is not something that inheres in actions. An example given by ʿAbd al-Jabbār considers sujūd prostration. Sujūd is good when performed to God but evil when performed to Satan. So, there is nothing intrinsically good or bad in the action of sujūd itself that makes it good or bad. The goodness or the badness themselves do not inhere in the action. The objectivity of moral values is not related to the intrinsic nature of the actions. For simplicity, let us call this position the ‘naturalist position’ akin to moral realism as defined earlier. The second position is of those who grounded good and bad in the state of the agent, which clearly implies that it is relative to the individual. ʿAbd al-Jabbār said: ‘Some people say that the evilness (qubḥ) of wrongdoing is just like the ugliness (qubḥ) of ugly pictures and there is no difference between the two cases’ (1958–65, vol. 6, part 1, p. 19). He considers those who hold such views to be mistaken, as rational people who look at a picture may disagree among themselves – some might see it as beautiful, and others might see it as ugly. Thus, beauty or ugliness depends on the state of the person, his desire (al-shahwa) or aversion (al-nufūr). Even the same person might view something differently at different times. This is not the case with moral values, such as wrongdoing or injustice, as all rational people agree on the evilness of such acts (ʿAbd al-Jabbār, 1958–65, vol. 6, part 1, p. 19). This view is compatible with ethical relativism. Let us call this a ‘relativist position’. Third is the position that grounds morality in the state of the action (ḥāl). The state of an action is determined by its circumstances and consequences. For example, according to ʿAbd al-Jabbār the ground of evil ‘wajh qubh’ of the action of ‘inflicting pain’ is it being wrongdoing (zulm). ‘Inflicting pain’ is a perceived entity or a physical feature of an action, thus an intrinsic property ‘maʿnā’, that determines the genus (jins) of an action. Whereas ẓulm is an attribute of the action of inflicting pain necessitated by the state (hāl) of the action. The state of the action is determined by certain conditions and by the consequences that the action brings about or is thought to bring about. Therefore, it is not an intrinsic property of an action that qualifies it as good or evil, but the aspects of an action that provide good reasons for certain judgements, expressed by ʿAbd al-Jabbār as wajh al-qubḥ and wajh al-ḥusn. Let us call this Justice and Beauty in Muslim Marriage.indd 302 08/04/22 4:20 pm ETHICS AND GENDER EQUALITY IN ISLAM 303 view a ‘constructivist position’. Since, according to this position, the truth of a moral judgement, as in constructivism, is not simply there waiting to be discovered, since it depends on the circumstances and the consequences of the action that is evaluated. The truth of the moral judgement, according to this view, is akin to a version of constructivism that also depends on the outputs of our reasoning procedures that take into consideration different factors. In addition to the three possible grounds of morality mentioned above, we should include the view that grounds morality in divine commands and prohibitions or in the will of God. This is the position that we can refer to as ‘theological voluntarism’. According to this view, good and evil are ultimately based on revelation. Moral values, good and bad (al-˕usn wa al-qubḥ), are established and known to us only through divine commands and prohibitions. The last view is usually mistaken for being the truly religious one. But it is important to clarify that referring to a text in a case of disagreement on a legal matter is one thing, while holding the view that moral values exclusively depend on scripture is another. After all, there is no legal tradition that is not ultimately based on a certain text that is considered authoritative by the community that adheres to it. But holding that moral values exclusively depend on scripture is a very problematic view.14 It allows for ‘social norms and practices to be sanctified and turned into fixed entities’ (Mir-Hosseini, 2018, p. 108). What the last position, which is ‘ethical voluntarism’, has in common with the first one, which we call a ‘naturalist position’, is that both views assume that good and evil and right and wrong need to be discovered rather than constructed. According to ethical voluntarism, normative values are grounded in divine commands and prohibitions, while according to the natural position values are grounded in nature. Thus, both views are compatible with a version of ‘moral realism’. Moral realists hold that there are objective, mindindependent facts and properties (Lutz and Lenman, 2021), which can only be discovered ‘as they actually are’. Also, moral realism, like voluntarism and naturalism, implies that moral truth is absolute and static. In other words, both the naturalist and voluntarist positions imply that there are objective criteria of correctness for moral judgements only if such judgements represent matters of fact about the way the world is. Nevertheless, it is worth mentioning that in practice, the classical medieval scholars and Muslim jurists did 14 For arguments against this position, which is also sometimes called divine command theory, see Al-Attar (2015). Justice and Beauty in Muslim Marriage.indd 303 08/04/22 4:20 pm 304 JUSTICE AND BEAUTY IN MUSLIM MARRIAGE not discover real and true moral judgements that represent matters of fact or absolute divine judgements. Indeed, they ‘constructed, rather than discovered, God’s law’, as argued by Ziba Mir-Hosseini (2003). The constructivist view entails that there are objective criteria of moral judgement insofar as there are objective criteria about how to reason about practical matters. For example, there are objective reasons that prohibit deceiving and manipulating others, but such reasons are the result of moral reasoning. Accordingly, moral judgements can be true or false without representing mind-independent normative facts about the world (Bagnoli, 2021), since ‘moral judgments have no ontological connotations’ (Daher, 1990, p.367). However, it must be strongly emphasized that ‘stripping ethics from any ontological grounds does not mean stripping it from any rational grounds’ (Daher, 1990, p. 285). Also, objectivity does not require any version of moral realism that would render morality static and absolute. Yet it requires the fulfilment of certain conditions which, to use the Arabic Islamic terminology, are called the ‘conditions of moral obligations’ (shurūṭ ḥusn al-taklīf) or better the ‘presuppositions of normative judgements’, as discussed in the section that follows. 2.2 Presuppositions of normative judgements (shurū‫ ܒ‬h̙usn al-taklīf) Classical Muslim scholars developed what can be considered ‘morally neutral’ principles for evaluating moral judgements under the title of shurūṭ ḥusn al-taklīf, which can be translated to ‘conditions of valid obligations’ or ‘the presuppositions of moral judgements’. The importance of studying the presuppositions of moral judgements is explained by contemporary philosopher Neil Cooper, who stated that ‘if one finds out what moral judgments imply or presuppose, he/she shall be in a position to shoot holes in any moral judgment which implies or presupposes what is false, impossible, or otherwise unacceptable’ (1966, p. 46). The late professor of ethics at the University of Jordan, Sahban Khalifat, indicated that the mutakallimūn (scholars of kalām) ‘have articulated such presuppositions in great detail, which indicates that they were aware of the importance of such conditions in evaluating normative judgments’ (2004, vol. 3, p. 1079). The Muʿtazilite ʿAbd al-Jabbār al-Asadābādī (d. 1025 ) proposed and defended some ‘morally neutral’ principles for evaluating moral judgements. These conditions can be divided into two. First, conditions related to the agent, including her/his intellectual, physical and psychological abilities. Justice and Beauty in Muslim Marriage.indd 304 08/04/22 4:20 pm ETHICS AND GENDER EQUALITY IN ISLAM 305 These include, for example, the ability to understand the meaning of a judgement and the ability to act independently of any deterministic factors. In other words, normative judgements presuppose certain qualities in the agent which, if not present, would undermine the validity of any judgement. ʿAbd al-Jabbār says: ‘A responsible human being (mukallaf) is the one who is able to act (qādir), knowing (ʿālim), living (ḥayy) and willing (murīd)’ (ʿAbd al-Jabbār, 1958–65, vol. 11, p. 309) and any obligation imposed on a mukallaf should take that into consideration. Thus, if an obligation includes what is impossible or intolerable it should be considered irrational (taklīf mā lā yutāq qabīh) (ʿAbd al-Jabbār, 1958–65, vol. 11, p. 367). Moral judgement is irrational unless it presupposes a certain physical and mental capacity on the part of the addressee that makes him/her responsible for the choice and action. The second set of conditions relate to the judgement itself. For a judgement to be moral it needs to satisfy some ‘conditions of valid obligation’, which include purposefulness, rationality, objectivity, impartiality and universality. For example, a moral judgement must be purposeful and not arbitrary. Thus, if one had no purpose in assigning an obligation, then the assignment of the obligation would be irrational. A moral judgement, in order to be valid, needs to apply to everyone, including ‘the atheists who know the evilness of injustice, although they do not know the divine commands or the commander’ (Mānkdīm, 1965, p. 309). A rational human being or an adult with a sound mind (al-ʿāqil) ‘should do what is obligatory by reason (wājib fī ʿaqlihi) for its goodness’ (ʿAbd al-Jabbār, 1958–65, vol. 11, p. 498). The impartiality of ethical judgements is exemplified in ʿAbd al-Jabbār’s thought, when he said: ‘An action if considered evil for occurring in a certain way, then it must be evil from any agent if it occurs in the same way’ (ʿAbd al-Jabbār, 1958–65, vol. 6, part 2, p. 244). Moreover, ʿAbd al-Jabbār holds that ‘being obliged by God is not a condition for obligation’.15 This implies that not all obligations and rules are mentioned in the Qurʾan. Moral obligations and moral rules should then be constructed taking into consideration the core Qurʾanic moral values. The Qurʾan emphasizes a core of universal values that are shared by all human beings. But morality encompasses not only abstract universal values such as justice and mercy, it also includes codes of practice and rules that determine duties, obligations and rights. These are constructed by taking 15 For a detailed discussion of the presuppositions of ethical judgements based on the work of the Muʿtazilite scholar ʿAbd al-Jabbār (d. 415 /1025 ), see my chapter: ‘Ethics of ʿAbd al-Jabbār: Presuppositions of Ethical Judgments’, in Al-Attar (2010, pp. 63–98). Justice and Beauty in Muslim Marriage.indd 305 08/04/22 4:20 pm 306 JUSTICE AND BEAUTY IN MUSLIM MARRIAGE into consideration not only the core moral values but also advancements in psychology, neurology, anthropology and other fields of knowledge. In addition to that, any judgement, rule or principle must satisfy rules of practical reason16 to be considered a true moral judgement, as will be argued below. To use ʿAbd al-Jabbār’s terminology, to be a ‘rational obligation’ (taklīf ʿaqlī), any obligation must conform to the rules of practical reason. The rules of practical reason (formal as opposed to substantial) distinguish the ethical discourse from any other type of discourses. These rules of practical reason as articulated by contemporary Muslim philosopher Adel Daher include several points. First, a rule should entail that acting according to it is absolutely mandatory. This can be interpreted as saying: do not treat others (or do not accept treating others) except in a way that you want to be treated if you were occupying the same position that the other occupies. It has also been called the universalizability principle (Daher, 1990, p. 405). It should be clear that rejecting the absolute character of normative ethics does not include rejecting the absoluteness of moral perspective (Daher, 1990, p. 386). For example, the norms and the application of the norms in certain situations can vary, following certain details and circumstances which require the application of the norm. Thus, a normative rule such as ‘one should never steal’ or ‘stealing is wrong’ is not absolute, as there are situations when stealing to feed a dying person is the right thing to do. Rejecting the absoluteness of such rules does not mean rejecting the absoluteness of a moral perspective, as moral considerations of ʿadl (justice) and iḥsān (beauty and goodness) are the reasons behind breaking such rules.17 Second, what is required by a moral rule cannot be overruled by considerations that do not belong to the domain of ethics, like legal considerations or considerations of self-interest. Ethical considerations have the priority over any other considerations (Daher, 1990, p. 408). A good example is when Muslim jurists in the past wondered what to do with the divine moral injunction revealed in verse 16:90 of the Qurʾan: ‘God commands ʿadl (justice) and iḥsān …’ They were aware that the concept of justice requires equality, but they found that problematic. Thus, the Muslim jurists and the exegete restricted 16 Practical reason is a term with main roots in Kantian philosophy and it indicates the ability of moral reasoning. ‘It is the general human capacity for resolving, through reflection, the question of what one is to do’ (Wallace, 2020). 17 Constructivism rejects the absolute character of normative ethics and that includes Kant’s ‘categorical imperative’. That means that there are no absolute moral rules that must be followed regardless of the context and the consequences. Justice and Beauty in Muslim Marriage.indd 306 08/04/22 4:20 pm ETHICS AND GENDER EQUALITY IN ISLAM 307 equality by reference to al- sharʿ or what they considered divine injunctions. Al-Qarafi, for example, defined ʿadl (justice) as al-taswiya bil sharʿ (equality according to revelation) (al-Khaṭīb, 2017, p. 106). This allowed the jurists to give priority to specific verses and miss ‘a great deal of the original intended moral message by God in the Qurʾan – that of shaking patriarchal culture and enslavement and putting Muslims on the road to equal human dignity and emancipation’ (Abou-Bakr, Lamrabet and Al-Sharmani in this volume). Indeed, as stated by Abou-Taleb also in this volume, exegetes adopted ‘a practical and literal approach that translates the verses into legal injunctions (a˕kām), mostly shaped by the norms of their contexts’. The third rule of practical reason articulated by the philosopher Adel Daher is that of consistency. For example, the absence of consistency can be the result of a rule that requires us to do something and not to do it in the same time or requires us to do what leads to a situation that contradicts with the same rule, like, for example, saying that ‘everyone has to prioritize her own interest and abide by her obligations towards others’ (Daher, 1990, p. 409). Such a rule requires one to prioritizes her own interest and not to do so at the same time. The fourth rule that any judgement must satisfy is the applicability to all individuals without exception. Accordingly, any rule that discriminates against women, including those related to marriage and divorce, is not a moral rule, as it clearly fails to satisfy this condition. The fifth states that a moral rule should be for the good of all equally. Indeed, all Muslim jurists agreed – in theory – that well-being (maslaha) is the ultimate aim of revelation and this includes, of course, the well-being of all men and women. It is important to mention that any judgement must satisfy these rules of practical reason in order to be considered an objective true moral judgement. These rules are therefore the necessary conditions of moral judgements. Necessary, but not sufficient as they do not preclude other conditions that also need to be satisfied for a judgement to be considered true, like the ones articulated by ʿAbd al-Jabbār and conditions derived from other fields of knowledge. These conditions should be taken into consideration when constructing any moral judgement or moral code and in assessing any previously constructed rule or judgement. Therefore, the question of objectivity, as argued above, is not whether the moral value that we ascribe to a judgement or an action inheres in that action, but whether it satisfies the presuppositions of moral judgements articulated by ʿAbd al-Jabbār and the rules of practical reason as explained by Adel Daher. Justice and Beauty in Muslim Marriage.indd 307 08/04/22 4:20 pm 308 JUSTICE AND BEAUTY IN MUSLIM MARRIAGE CONCLUDING REMARKS Understanding ethics and appreciating its significance is of paramount importance in the contemporary Islamic reformers’ discourse. In the first part of this chapter, I shed light on some recent contributions to the field of Islamic ethics, highlighting the importance of ethical thought in the works of kalām. The second part is an attempt to develop an understanding of ethics along the lines of constructivism, which is a recent development in moral philosophy that is, in my view, compatible with objective, universal, rational and Islamic views of morality. I argue, building upon the arguments of ʿAbd al-Jabbār, that for any ruling (ḥukm) or ethical judgement to be truly moral, it must satisfy certain necessary conditions of moral judgements. The implications of the chapter’s approach for the question of Muslim gender justice are multifaceted. While there is a core set of universal values shared by all human beings and emphasized in the Qurʾan, morality and its related duties and obligations include rules, codes of practice and moral judgements that go beyond these broad and abstract values. The rules, codes of practices and moral judgements are constructed based on the universal values as well as contextual understandings and intellectual advancements in any given time and place. In addition, to be considered a true and valid moral judgement, any judgement, rule or principle must satisfy certain rules of practical reason. In other words, norms and values that can guide egalitarian gender relations are not simply to be discovered as monolithic and fixed teachings from sacred texts. Nor are they merely reducible to context-determined worldviews and discourses. Rather they are constructed through human reasoning in dynamic processes where the sacred texts and social historical contexts play a role but do not negate or replace ethical reasoning that can evaluate moral judgements independently with its own rational tools. REFERENCES ʿAbd al-Jabbār, ʿImād al-Dīn Abū al-Hasan b. Aḥmad. 1958–65. Al-Mughnī fī Abwāb al-Tawḥīd wa al-ʿAdl (20 vols, of which 16 are extant). 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