By : Faqihuddin Abdul Kodir
In the social life where women become the second class of society, stand unequally, and unrecognized them as important person, all social concept which are appeared will always put them in the object position. The obligation on the maintenance of women for example, actually are their rights and prescribed to protect women. But in the public awareness which are unequal , the rights for the protection become obligation which control women.
With the reason that women have rights of family maintenance, they must be ready to be under men’s control, obedient and submissive, prohibited to go out from the house without permission, and prohibited to work at all. It’s odd that the control continued to happened although the real facts show that many men can’t fulfill the family maintenance and more women who precisely able to seek, gain, and bring maintenance to fulfill the family needs. The concept of the obligation of maintenance then imbalance and not linear with the idea of women protection, because in the implementation the practice is more controlling women.
In the imbalance awareness, the public respond to the ethics of protection are still difficult to be separated from the demands to control. The Islamic social mission for the protection of the weak, will be turned to the demand which precisely control them who are weak. The freedom and protection which initially become the rights of the weak, had been change to become a good deeds from the strong against the weak. Then, the weak people are requested to serve the people who are strong. The demand, however, in the class conflict, precisely prioritized rather than the protection obligation itself.
The concept of mahram (guardianship) that initially become a concept of protection for the people who are weak, also can be change to the teaching of restriction and prohibition to the simple thing. The misappropriation of understanding can be explained from the unequal awareness in perceiving women and the people who are weak. This article will encourage the readers to reaffirm the mission of protection in the mahram concept, as initially was affirmed by Islam.
Mahram (Guardianship) and Women’s Traveling
In the Fiqh discussion, people often only know that a woman who want to travel in a certain time, regardless for any kind of matter should be accompanied by family relatives which often called as mahram, or in Bahasa Indonesia also usually is called by muhrim. The must accompanying person or mahram is often presented without any discussion of the social context, law reasons, various hadith text which become reference, also the various perspective of the Islamic Jurist (Fuqaha’) itself.
The knowledge regarding a context of law and various perspective of the ulama is very important to understand well the such law character. Without enough knowledge and in the negligence of women’s friendly perspective, the protection mission must be forgotten when exploring the hadith text and law perspectives regarding the such concept. One of the hadith text which become the basic of accompanying mahram is the narration of Abdullah bin Umar ra. that the Prophet PBUH said, “A woman can’t travel in a three days, only if she accompanied by a mahram” (Hadith narrated by Imam Bukhâri, Shahîh Bukhâri, Kitâb: al-Jum’ah, Bâb: Fiy Kam Yaqshuru ash-Shalâh, Hadîth number: 1024).
At a glance, this hadith can be read as a basic of control and domestication of women. The explanation of Imam ash-Shan’ani (d. 1182H/1850 M) on the hadith text in the book Subul as-Salâm said that this prohibition related to the slander of women’s body which also justify the such concept of domestification. The book also appreciated Imam Nawawi’s (d. 676H/1277M) view which prohibit women to travel absolutely, without any consideration of three days as mentioned above, if she is not accompanied by a mahram (male guardian). Woman become the only subject of law, which is affected by the prohibition of travelling without a mahram (guardian), just because she is a female.
This view and the view that traveling without a guardian which is applied only for the young women not elderly women, also annunciated an awareness that women’s body as the source of the problem. In this kind of awareness the mission of women’s protection will also ensured linearly with the demand of domestification and restraint.
But the hadith text above actually can be read and reinterpreted by referring the wealth of ulama’s discourses, whether in the hadith or Fiqh books. With the gender equality perspectives, the discussion regarding this matter can be directed to ensure the protection of those who are weak, as the principal and social mission guided by Islam, not to the direction of domestification and restraint.
Imam Ibn Hazm (d. 456H/1064M), the main supporter of Zahiri school, a most literalist school of Fiqh and the most tied to hadith texts, explored the hadith context of the obligation of a mahram (male guardian) more clearly. In his magnum-opus book al-Muhall bi al-Atsâr, Ibnu Hazm ensured that the context of the hadith was in a situation of war, so that a woman who want to travel must be accompanied by a mahram (guardian). Also the hadith text according to him, not as a prohibition for woman, but more a obligation for a man to accompany woman who will travel.
Before that, Ibnu Hazm explained the various Fiqh perspectives and various hadith regarding the such problems. There was a view and hadith text which prohibit (woman to travel) in the duration of three days and nights, some of them said three days, another people said two days; and there were also opinion which said although a woman will travel only one day, she must be accompanied by a mahram (male guardian). In addition to that, there were also opinion that prohibited woman to travel absolutely, without the time limit or restriction, although only a moment she must be accompanied by a mahram. But Ibnu Hazm also mentioned Aisha’s (the Prophet’s beloved wife) disagreement to this concept. In her statement which was narrated by Az-Zuhri (d. 124H/742 M), Aisha criticized, “Not all woman has a mahram,“(Ibn Hazm, al-Muhalla, juz 5, page 19).
The explanation on the hadith on the obligation of mahram (male guardian) can be found in Ibnu Hazm’s discourse on a woman who travel to go pilgrimage (Hajj) without accompanied by a mahram. According to him, women can leave and travel to Hajj although without accompanied by her mahram. The obligation on mahram issue is on the men’s shoulder to go and to accompany women. If there is no mahram, or there are nobody who are willing to become her mahram, so a woman is not prohibited to go to Pilgrimage at all. Women are able and allowed to go pilgrimage herself without a mahram. Everybody, including her husband, said Ibnu Hazm, has no right to prohibit her to go to pilgrimage.
Ibnu Hazm’s perspective was based on another several hadiths which provided the context of the hadith above . For example, the hadith narrated by Abdullah bin Abbas, “Rasulullah saw. said : Women are prohibited to travel without accompanied by a mahram (male guardian).” Then a man stood up and asked, “O Prophet,.. My wife is traveling alone by herself, while I must go to war.” Then the Prophet replied, “Go and do the Hajj (pilgrimage) with your wife.” (Hadits Bukhari Muslim, Sahih Bukhari, hadits no.: 1862).
The perspective on the ability for a woman to go Hajj without a mahram was also based on the obligation to Hajj for everybody, including women. Also to the text related to prohibition to prevent or to deter women who want to qo to mosque. Everybody, according to Ibnu Hazm is prohibited to prevent women to go to mosque. The Hajj (pilgrimage) is the ‘ibadah (worship) activities in the main mosque, the Masjidil Haram in Mecca. Therefore, Prophet Muhammad PBUH commanded the man to accompany his wife; and did not asked him for resending his wife back home. According the hadith narrated by Abdullah ibn Abbas, Ibnu Hazm said :
“The obligation is on the husband’s shoulder, if he accompanies his wife to go to Hajj (pilgrimage) so he had implemented the thing which is commanded: but if he does not do that, so he is considered to violate the God’s command, and his wife is still allowed to go Hajj with or without accompanied by her husband, with or without accompanied by her family, as the Prophet let her go and doesn’t blame her at all.” (al-Muhalla, juz 5, hal. 25).
But the literal mindset of Ibnu Hazm enforced himself to localize the problem only in the Hajj issue. In another case, Ibnu Hazm prohibited woman to leave her house without accompanied by her husband. Furthermore, he said that a woman is obliged to be always obedient to her husband, and this obligation is higher than another obligations except the Hajj matter. The such way of thinking surely will blur the mission of women protection in the mahram concept, moreover the liberation from restraint. But the discussion regarding rational of the legal (‘illat) and moral ethic (hikmah or wisdom) on the mahram issue will ensure the protection, not restraint.
Rational of the Lral and Moral Ethic of the Hadith on Mahram
The Shafi’ie school, as one of the school of thought which struggle for the analogy of Islamic Jurisprudence (Qiyas), has the wealth discourses regarding the mahram (guardian) issue for women who want to travel. Ibnu Hajar al-‘Asqalani a (d. 852H/1448M) the main ulama (Islamic scholar) who call for this school, explored various perspective of the school of thoughts regarding the legal reason and moral ethics regarding this problem. Unfortunately, only a few people who read this explorations, so that there a still many people who are trapped in the literal obligation on the mahram issue.
In addition to the various perspectives which still obligate the existence of mahram (guardian), when giving the comments on the aforementioned hadith text on mahram in the book Fath al-Bari, Ibnu Hajar also narrated the different views from the two prominent ulamas of the Shafi’ie school, that the texts or ulama views related to accompanying mahram is not single one. Imam al-Karabîsî (d. 245H/859M), the direct students of Imam Ash-Shafi’ie, said that it is no problem for a woman to ho to Hajj or Umrah (little Hajj) alone, when the travel is safe. With the safety reason, Imam al-Qaffâl (d. 412H/1026M) and Imam Abu al-Mahâsin ar-Rayyâni (d. 501H/1107M), said that a woman is allowed to go alone for any reason, not only for Hajj (pilgrimage) matter (Ibn Hajar al-‘Asqallâni, Fath al-Bâri, juz 6, page 88).
Abu Zahrah, the prominent Al Azhar Fiqh (Islamic Jurisprudence) scholar or ulama, also perceived that the mahram problem is a wasilah (procedure) matter of safety guarantee. As a procedure, it can be change and done in many ways as long as it ensure the safety or security guarantee for women during her travel. In this context, Syekh Yusuf al-Qaradhâwî, a contemporary Fiqh (Islamic Jurisprudence) scholar or ulama from Al Azhar Cairo, Egypt, also affirmed the same thing.
“The reason behind the prohibition (of a woman to travel alone by herself) is the worry about the situation of her security during her own travel, without accompanied by her husband or a mahram (male guardian). In the past, this kind of prohibition was applied in the situation when people usually travel by riding horse, camel, or donkey. They passed the desert that stretches, and almost no people or building at all. For a woman who travel alone this kind of situation was very dangerous. Although herself was not overwritten distress, but the danger always threatens her honor. But, when situation has change, so the legal provisions should also be changed. (Muhammad Yusuf al-Qardlâwi, Kayfa Natâ’Amal Ma’a as-Sunnah an-Nabawiyyah, page 131).
In this kind of statement, the legal provision on the obligation for a woman to be accompanied by a mahram (male guardian) when traveling is a contextual thing, because rational of the legal from this obligation is to give protection and safety for women.When the situation changed, so “the obligation to be accompanied by a mahram or male guardian” can be changed with another media which in fact can fulfill the purpose of the protection and security needed. As in our era nowadays, to travel far away people can use plane or train, which is able to accommodate so many passengers with the specific safety guarantee. Therefore, a woman will not feel worry anymore when she travel alone.
Al-Qaradhawi explained that there are also many Fiqh (Islamic Jurisprudence) ulamas or scholars who allow a woman travel to Hajj (pilgrimage) without mahram (male guardian), and without her husband. As a replacement, she can be accompanied by another woman or travel together in a group. In the note of a hadith text, Aisha ra. once travel to Hajj (pilgrimage) in a group with ummahât al-mu’minîn (mothers of the believers) or Prophet’s wives without accompanied by a mahram or male guardian, and without her husband. Moreover, in that group there were Utsman bin Affan ra and Abdurrahman bin ‘Awf ra. Then, the prohibition for a woman to travel without mahram is a conditional thing and it is for the purpose of women protection. This kind of interest nowadays can be implemented through policies which ensure the protection for everyone who travel, and adding that with supervision and to make travel techniques more easier.
Struggle for State Protection
The spirit of mahram actually the existence of protection or fulfillment of safety feeling for the weak people, whether physically (dha’ief) or socially (mustadl’afîn).This kind of substance which should be realized, especially for the state as the people’s protector. So that, the prohibition of women to work under the reason should have a mahram (guardian), is a violation against Islamic principal regarding everyone basic rights to work. If the problem is safety or security, so the state must be responsible to realize the such condition.
In the modern and civilized society, the public safety and security is not depending on other people personally or even communally, but to the rational system and structure, including the legal certainty from the state. The security and social protection function, should become a part of working system and structure. It is a state obligation through its political and law system to ensure the security and protection of every citizen, both men and women.
The state is demanded to realize the social protection in order public individually or collectively can run their daily activities safety and quietly. State doesn’t have right to prohibit its citizen to do their activities, furthermore if it related to the most basic human rights whether economy, social, politics, education and etc. The self actualization of somebody should have the proper place. Therefore, protection must be interpreted as security and should not be a restriction.
Someone can choose if he or she will not work because of safety reason. But he or she can prohibit other people because of assumption that they will be victim of violence, if only the protection and security system had been provided by the state system, sending countries, and destionation countries. Although, of course everyone have to prepare themselves with the protection system needed. But, the things which must be ensured in this matter, that the state is fully responsible for the safety of every citizen.
In the context of protection and security guarantee, it can be found from the destination countries, as the cases that happened in Saudi Arabia nowadays, the state have right to do a moratorium to ensure protection policies can be implemented. Furthermore, state in this context the President and all his ministry cabinets, can be considered guilty if let the migrant workers go abroud without protection and safety guarantee. Thus, the state must become a mahram (protector) for every citizen who need it, whether in the domestic country or especially in abroad. Wallahu a’lam.