Jan. 21st, 1975: Women finally gain equal access to American juries. The issue was whether Louisiana law had a "conceded systematic impact" to eliminate female jurors from the jury, in a trial case of terrorism against a woman who survived an aggravated kidnapping, sexual assault, and robbery.
The Magna Carta, from 1215, "was enshrined in the US Constitution as the promise that 'no person shall…be deprived of life, liberty, or property, without due process of law” and that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.'
"The wording seems expansive, but that is misleading. Excluded were “unpeople” (to borrow Orwell’s useful concept), among them Native Americans, slaves and women, who under the British common law adopted by the founders were the property of their fathers, handed over to husbands. Indeed, it wasn’t until 1975 that women gained the right to serve on juries in all fifty states." [1]
In places like Florida and Louisiana, "a woman could not be seated as a juror unless she had previously declared in writing her desire to serve." In 1961, the U.S. Supreme Court case Hoyt v. Florida had Ms. Hoyt argue that "female jurors might have been more understanding of her 'temporary insanity' defense and more compassionate regarding the facts of her case. (Apparently, she had assaulted Mr. Hoyt with a baseball bat 'in the context of a marital upheaval involving, among other things, the suspected infidelity of appellant’s husband…')"
"Citing the Fay case, Justice John M. Harlan extolled the virtue of the Florida law, which, like the New York statute, gave women “the privilege to serve but does not impose service as a duty.” He reasoned that, '[d]espite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved for men, woman is still regarded as the center of home and family life.'"
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Thankfully, in 1975, the Supreme Court heard Taylor v. Louisiana. Justice Byron R. White wrote the majority opinion “it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires [panels] are almost totally male."
"The holding in Hoyt was specifically disapproved [and overturned]. This surely was a unanimous opinion, right? Almost. Justice William H. Rehnquist, who later became Mr. Chief Justice, dissented." [2]
Law is tricky when "precedent" is an authority. People whose privilege has been enshrined don't always see this. In the new movie Hidden Figures, the NASA director says to our whip-smart protagonist, "There's no protocol for a woman attending" an important meeting she seeks to gain access to. "There's no protocol for sending a man into space, either," she judiciously replies. Indeed, "precedent" is often used as a weapon, even as contexts themselves become unprecedented.
So for all American's fear of shari'a law, we have the same troubles updating our laws as well, too often appealing to "tradition(al notions of a woman's sphere)" over "justice." 1975 was NOT that long ago, and since then the late Justice Atonin Scalia called himself a "constitutional originalist" to oppose any kind of change ("The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring"), which is an argument, along with "judicial restraint," we can expect to hear more of in the era of Trump and Republicans [I called it; Trump's pick turned out to be someone who identifies as a Scalia originalist]. Perhaps we can learn from Muslims, who created the concept "Maqasid al-Sharia," or "Objectives (English)/telos (Greek)/finalite (French)/zwek (German) of Shari'a." Way back in the 1300s, Abu Ishaq al-Shatibi (died 1388)'s idea (or realization) made Islamic law receptive to continual adaptation.
Like us, al-Shatibi faced conflicting rulings from various partisan schools of thought, each one arrogantly asserting that their interpretation of shari'a was "enshrined statically" in the Qur'an. He himself was a jurist in the Maliki school. He identified five goals which shari'a promoted:
- preservation of life (nafs) against "murder, disease, imprisonment, or other constraints" which keep individuals from thriving,
- preservation of life (nafs) against "murder, disease, imprisonment, or other constraints" which keep individuals from thriving,
- preservation of religion (din) - note that "religion" is a modern term and thus limited translation, as "din" is more of an all-encompassing way of life, as an expression of responsibility to a higher power
- conscience/reason/judgment ('aql) "so that moral agents are free from coercion or deprivation to bear responsibility for their decisions,"
- posterity (nasl), the parent's reproduction of children, and their subsequent responsibilities in the upbringing of children
- personal property (mal), private ownership necessary for economic livelihood that is free from "theft, confiscation, and corruption" [3]
Mahmoud Mohammed Taha, a Sudanese engineer, businessman and martyr for reform in the 20th century, argued that while the Qur'an and Sunnah has laws now seen as unchangeable, they are really local applications of universal norms from the earlier verses. That is, the laws (set forth in Medina) were the best attempts *at that time* (in that context) for implementing the universal objectives (preached earlier in Mecca) [4]. Likewise, al-Shatibi believed he had identified the universal, without getting limited to the particular. Flexible changes in the law could happen, as long as the five objectives were used as a criterion, for the promotion of human welfare (maslahah). al-Shatibi himself was verbally attacked, writing, "I found myself a stranger among my contemporaries." His ideas came back into heavier use among the anti-colonial nationalists of Egypt, like grand mufti Muhammad 'Abduh and his fellow al-Azhar scholar Rashid Rida. Also, the concept of "universal principles (qawa'id kulliya)" were independently realized by the Hanafi school's jurist Ibn Nujaym during the Ottoman Empire reforms of the 1500s [5] (the Ottoman Muslims later decriminalized homosexuality about a hundred years before the UK, and well before the U.S. who finally did so in all remaining states in 2003)[6].
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Unfortunately, neo-colonialism (Great Britain and U.S.A. on the Suez Canal of Egypt, propping up bloody and/or corrupt puppet governments, etc.) promoted a deep resentment that in Egypt fueled the rise of more close-minded scholars at al-Azhar University, extremists, and the conservative Muslim Brotherhood. The Brotherhood is feared by Americans, when really the Brotherhood knows, as the Jews did before the Maccabean revolt (from which we got Hannukah), that the slow erosion of religious identity in the name of cosmopolitanism is often the first sign of a takeover. Western culture, in this analogy, is the Greeks who are trying to globalize one way of life upon the world. This valid fear causes the Brotherhood to try and resist change, which they have been using moderate political means to do since at least the 2000's. In fact, it was not this group but the university of al-Azhar that, in the 1980s and 1990s, called for the execution of intellectuals (who, ironically, sympathized with the Muslim Brotherhood in their youth, examples being Nagib Mahfouz and Hamid Abu Zaid), which led to stabbing, death threats, forced divorce, and assassination. Muslim Brotherhood's Yusuf al-Qaradawi blamed the extremist violence in part on the failure to give Islam "the place it deserves in government, legislation and guidance."
However, not all Muslims bow to the conservative scholars (nor can they be; Islam is a bit anarchical), despite these high-profile attempts to go back to an illusory idea of a static and pure tradition. What you won't see in the news is Malaysia's Muslim population, which has some factions who provide a good example of maqasid al'Sharia in motion:
"the leader of Malaysia’s PKR, Anwar Ibrahim asserts:
'[T]he maqasid al-shariah (higher objectives of the shariah)
sanctify the preservation of religion, life, intellect, family, and
wealth, objectives that bear striking resemblance to Lockean ideals
that would be expounded centuries later. Many scholars have
further explained that laws which contravene the maqasid must be
revised or amended to bring them into line with the higher
objectives and to ensure that they contribute to the safety and
development of the individual and society. Notwithstanding the
current malaise of authoritarianism plaguing the Muslim world,
there can be no question that several crucial elements of
constitutional democracy and civil society are also moral
imperatives in Islam—freedom of conscience, freedom of
expression, and the sanctity of life and property—as demonstrated
very clearly by the Qur'an, as well as by the teachings of the
Prophet Muhammad.'
"This approach is reflected in PKR’s political manifesto in which priority
is given to economic development, poverty reduction, safe and fair
working conditions, education, healthcare and housing." [7] (2006)
Indeed, the right to property, unlike in our society, does not necessarily give bodies of people the right to harm human welfare (maslahah). I'll revisit the topic of public ownership in the next article.
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(This system is brought to America)
Selections from Timeline of Women's Rights[8] shows that the Islamic world, while behind in some cases today, was way ahead of the West in other cases:
Arabia 600s CE: Islam is founded in Arabia and the Qur'an allows women the right to inherit estates, own property and initiate divorce. Ensures women would not be passed around from father to husband, then, after husband dies, to husband's brother.
In all except financial court testimony (where two women's equal one man's), women have equal rights in judiciary matters.
Despite this progress, there was inequality. When a parent dies the eldest son receives a double share of the inheritance. Women don't always exercise the right to divorce and testify, however, because of social factors, and men are allowed to inherent a portion of their wive's estates. Though interestingly, Muhammad's first wife, Khadija, inherited a trading business from her father and was Muhammad's boss before she proposed to him (she is reported to have given much of her profits to orphans, widows, the poor, the sick, and girls needing money for marriage)
In all except financial court testimony (where two women's equal one man's), women have equal rights in judiciary matters.
Despite this progress, there was inequality. When a parent dies the eldest son receives a double share of the inheritance. Women don't always exercise the right to divorce and testify, however, because of social factors, and men are allowed to inherent a portion of their wive's estates. Though interestingly, Muhammad's first wife, Khadija, inherited a trading business from her father and was Muhammad's boss before she proposed to him (she is reported to have given much of her profits to orphans, widows, the poor, the sick, and girls needing money for marriage)
Northern Europe, 800s: Anglo-Saxon laws allow women to own their own property, before and after marriage. In Norse societies, women are also allowed to conduct business as equals with men.
England, 1100s: English common law, a combination of Anglo-Saxon and Norman traditions, leads to the creation of coverture, which is the belief that married men and women are one financial entity. As such, married women cannot own property, run taverns or stores or sue in court. Those financial rights could be enjoyed, however, by widows and spinsters. Over time, coverture is corrupted into the view that women are property of their husbands.
US, 1839: Mississippi allows women to own property in their own names. It is the first state to do so.
UK, 1870: UK passes the Married Women’s Property Act.
France, 1881: France grants women the right to own bank accounts; five years later, the right is extended to married women, who are allowed to open accounts without their husbands’ permission. The US does not follow suit until the 196os, and the UK lags until 1975.
^this shows that women in Islam had greater rights than the West up until 1975 in the case of owning property
UK and US, 1922: The UK finally allows equal inheritance.
Egypt, 1923: Tafsir al-Manar, a work written by our anti-colonial friends 'Abduh and Rida, says that women only do not have equal financial court testimony due to lack of experience, noting that "foreign women" are an exception to this, opening the door to reform
Egypt, 1923: Tafsir al-Manar, a work written by our anti-colonial friends 'Abduh and Rida, says that women only do not have equal financial court testimony due to lack of experience, noting that "foreign women" are an exception to this, opening the door to reform
USA 1995: The Muslim Women's League-USA calls for equal inheritance, at least in countries in the non-Muslim-majority world, since the older law assumed that male relatives and then husband's dowers would provide for all of women's material needs and depends upon women having recourse to laws to defend this provision, which is no longer guaranteed [9]
Egypt 2008: People's Assembly Deputy Speaker Zeinab Radwan declares women's testimony is equal to men's in financial contracts because “[t]he Quranic verses on the issue of the testimony of women were related to specific and limited [historical] occurrences and the changes in [today’s] situations impose changes on that ruling.” The (mostly male) scholars at al-Azhar, rather than seeing this is a woman's rights issue, attacked her credentials to speak on this and called her "molded by the West," despite the fact that she has a PhD in Islamic Philosophy and has done work on political Islam. [10]
[1] https://chomsky.info/20150323/
[2] http://www.msmagazine.com/summer2004/justverdicts.asp
[3] Scott Siraj al-Haqq Kugle, Homosexuality in Islam
[4] https://en.wikipedia.org/wiki/Mahmoud_Mohammed_Taha
[5] Scott Siraj al-Haqq Kugle, Homosexuality in Islam
[6] http://www.bbc.com/news/world-25927595
[7] http://www98.griffith.edu.au/dspace/bitstream/handle/10072/58072/86643_1.pdf;jsessionid=087F3F4B183F373A1F54039D82934693?sequence=1
[8] https://www.theguardian.com/money/us-money-blog/2014/aug/11/women-rights-money-timeline-history
[9] http://www.wluml.org/node/4260
[10] http://www.politicalislam.org/Articles/PI%20524%20-%20A%20Muslim%20Woman%20takes%20center%20stage.pdf
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