Analogical Reasoning (Qiyas) and the Commodification of Women : Applying Commercial Concepts to the Marital Relationship in Islamic Law

Analogical reasoning (Qiyas) is one of the four sources of Islamic fiqh. It is recognized that the outcomes of Qiyas are generally speculative in nature. However, a vast portion of the corpus of Islamic law is derived based on Qiyas. One such area is marital relationship and mutual rights of the spouses. In several areas of marital relationship and mutual rights, the Islamic jurisprudents have applied concepts and tools that are related to commerce or business (tijarah). Such terminologies include bai’ (exchange/buy/sale) and ijarah (lease). This paper examines such employment of business-related framework in the area of marital relationship and mutual rights. Based on both classical and post-classical legal sources, the author analyzes the legalistic tendency underlying the legacy of the traditional Islamic law, as exemplified in using business-related framework in an overreaching manner. Such tendency is akin to commodification of women, which is inconsistent with the values and spirit of Islam, as enshrined in the primary two sources, the Qur’an and Sunnah. A broad range of gender-related issues is related to such commodified view of woman. Also, this paper offers an explanation of how the traditional Islamic view on slavery might be closely connected to this commodified view. Furthermore, it sheds light on how such commodification can impact on family as a central social institution. The paper identifies some of the relevant areas, where the use of Qiyas has been overstretched in Islamic law and strong circumspection is called for in employing such business-related framework to marital/gender relationship