A new society can only be built on new values Law and custom

A new society can only be built on new values
Law and custom - the oppression of women in the family

Once the Islamic Republic took roots, the question of “women”, or more precisely the deep inequality of the two sexes and the repression of women slowly entered Iranian political and social discourse, not least by progressive political forces. The feminist movement is today a serious force in Iran and among Iranians abroad. Women, through their consciousmness and action have been the chief motor, as well as the main source of strength, for this intellectual movement.

Here I will try to highlight one of the most deep rooted instruments of women’s social repression - “law-custom”. Law-custom represses women with the backing of the state and society and mobilises the broadest support behind approving, extending and consolidating this repression.

The naked, and savage sexual apartheid of the Islamic Republic had been instrumental in fostering an illusion that anti-women behaviour was born with this government and that once it is removed women will be free. Yet it is right to ask “how did that apparently modern monarchical society, whose leaders spoke of being on the gates of the “Great Civilisation” succumb so easilly to sharia’ laws? Even where social resistance did take place, what cultural aspect of the new regime did it target?

Undoubtedly the prevailing laws in any given country reflect, in their totality, the overall level of social consciousness of that nation at that juncture. The fact that a religious movement could take control of a country is itself evidence that that society is ready to accept “ahkam and sunna” [1]. What is ignored, or at least under-rated, is the unwritten “laws” that run deep in the beliefs and understanding of that nation’s individuals through which codified legislation is filtered and interpreted.

With a religious government in place legislature is armed with the sharia’ laws which renders them unassailable and unchangeable. A secular government removes the sword of divine regulation from behind the laws. It is easier to question and re-legislate. That is why the removal of the Islamic Republic is a necessary but incomplete beginning for changing the present misogynist society in Iran.

In what laws does the misogynism of a society reveal itself? If we see the family as the smallest unit of society, the laws governing family relations can be seen as the most deep-rooted laws for ensuring social order. The state imposes its control over society with the help of family laws. The Basic Laws of the Islamic Republic has put its finger on this very point when it declares that all its laws are for the protection, and at the service of the sacredness of the Islamic family. But are the laws covering relations in the family in Iran confined to the Civil Code? Yes and no. Throughout Civil Code judgement has been referred to local custom. These customs and practices are burnt into our soul and psyche which, without wasting ink, operate more cuttingly than any codified legislation.

Plus ca change...
Interestingly, the parts of the Civil Code of the Islamic Republic dealing with “personal” law has been lifted, with only minor modifications, from that enacted in 1924-5 by the dictator Reza Shah [1]. It remained in force through his regimes and that of his son Mohammed Reza. Chapter 8 of Book seven which defines the “rights and duties of married couples” remains active without any changes since it was written over sixty years ago.

After the Shah set up the Organisation of Women in 1966, the Family Protection laws were annexed to the Civil Code in 1967 and again in 1974 in order to improve the rights of women in the family. Civil courts were given greater power to adjudicate in family quarrels by leaving the interpretation of “custom, family interests and local tradition...” to the courts.

The Islamic Republic removed the law of Family Protection as soon as it gained power and after a year replaced them with the “special civil courts presided over by a religious judge” (hakem shar’a) to implement sharia’ laws. Later, when it became clear that the sharia’ could not adequately respond to social needs, as well as totally at odds with the social and economic conditions of the country, the Islamic regime reverted to Reza Shah’s 60-year old legislature.

Today the law of Family Protection are attached as supplements to the marriage contract and handed over to prospective couples at the time of marriage. By signing them in the marriage ceremony the legal rights existing in the final years of the old regime are now made available to women.

But why were such questions as polygamy, divorce, rights over children ... rarely dealt with by the courts before the revolution. The answer lies in the changing environment of the country. It will be recalled that in the Civil Code, arbitration over family disputes are left to the court’s own interpretations of “custom, family interests and local tradition...”. In the absence of a religious government, a secular sway in society found its echo in a more “secular” decision-making by the courts. Women had some room to breathe. With the religious judge deciding on “custom etc..” clearly the balance weighs heavily against the woman and the bludgeon of sharia’ is suffocating indeed.

Three common-laws fix the limits of the status of women in society in all the written and unwritten laws. While these remain untouched it would not be possible to talk of a serious change in the position of women in Iranian society. We will examine these in turn

Virginity
According to custom a women must arrive a virgin on her marriage bed. This expectation is so “obvious” and “natural” that it does not appear anywhere in print. Neither in the sharia’ nor the Civil Code will you find virginity as a pre-condition for marriage or for its dissolution. It does not appear in any legal document [3]. But this “law” runs deep in social psychology and has imposed endless tragedies. Yet the man is not expected to be a virgin. Indeed sexual experience before marriage is considered in some ways necessary.

Girls are forced to experience their first sexual encounter on the marriage bed. That first night is turned into a night of fear and dread, an examination on which her future depends. Not only she is denied the chance of enjoying her first encounter with this form of human relation, but in practice it overshadows in her mind everything else in her new shared life. From childhood girls are forbidden many sports and games. Yet the fear that she may have jumped too high here, or ran too fast there, haunts her on the wedding night. During the ceremony she had to bear the anxious and questioning looks of her immediate relatives.

The custom of obtaining a medical certificate to prove the virginity of the woman and handing it to the family of the groom, which prevailed earlier among certain urban layers in Iran, was fast becoming isolated and unacceptable. With the Islamic Republic it has not only spread among urban society but even penetrated educated and “modern” layers.

Progressive and revolutionary forces, with claims to change or overturn society, not only failed to question this custom, but were themselves firm adherents. This shows the true extent of the catastrophe and signifies the depth of misogyny in society. The “law” of virginity is so deep, and so unquestionable that an overwhelming majority fail to notice it, let alone question it. The frightening dimension of the violence and debasement of women concealed in it is thus ignored. We women are taught that this is the “right” of a paternalistic society and not an insult to us.

Why is sex before marriage so-to speak haram (forbidden) for women and mostahab (recommended) for boys in the social contracts in Iran? Is it Islam? Or in Iranian Shi’ism? Or does it have roots in pre-Islamic history? You can search in vain for any of the books written by Iranian women dealing with the legal positions of women in Iran for the sexual right of women. Virginity and equal sexual rights is a taboo subject which few women demanding equality and freedom have found the courage to approach.

Yet historians have recorded it. With the shaping of the state and paternalistic society virginity of the bride became a weapon for domination: the ancient Greeks would dance outside the bedroom chamber of the newly wed until the groom came out victorious and gave his report [4]. In ancient China there are reports of girls committing suicide fearing they had lost their virginity while at the same time the sexual appetite of men was being satisfied with official brothels under state supervision [4]. Jews would stone a girl to death if she was not a virgin on her marriage bed [4] and in the Sassanian court only virgin girls could reach the highest level in the Shah’s harem - pashazan [5].

Virginity has been there in all religions and cultures. The buyer in a marriage contract insists on the first-hand nature of the “goods” he is purchasing. Even in industrial societies it was the growth of the feminist movement in the second half of this Century which finally put to rest the issue of pre-marital sex for women.

The question of virginity appears in many books, films and articles, particularly in Asian and Latin American countries without really being questioned from the viewpoint of a woman. Shahrnush Parsi Pour’s Women without men is one of the few literary works in Farsi which bravely examines the question of virginity from the angle of a woman. It is undoubtedly one of the greatest services this writer has made to the women’s movement in Iran.

The rape of women on their wedding night is the general rule, and this rape has entered the mind of women as an inevitable and immutable destiny. Such torment on the first night of a shared life lays the foundation for a relationship where women must always be accused and “answerable”, be “guilty” and deserving of whatever violence her husband chooses to deliver. To teach our girls to protect their virginity and hand it over to her husband, that her honour and that of the family depends on this, is to teach them to accept and bear assaults on women. You are no more than a commodity who should guard your presentability. Can we be serious in our demand for equality of men and women in the family while we continue to teach and learn these relations?

Marriage proposal
Article 1034 of the Civil Code states that “one can ask the hand of any woman who does not possess the obstacles of matrimony” [6]. Here the presence of a woman as a part society is officially ignored. The law is only addressing men. This law, and indeed the whole tradition of khasegari (marriage proposal) [7] and the marriage ceremony is the second pillar for the inequality of men and women in the family.

According to Islam, marriage is a commercial transaction, and is looked upon like any other commercial transactions. Islam is not unique. Chinese, Jewish and Zoroastrian men also “bought” their brides from the bride’s family [8]. The marriage contract, like all commercial contracts, was written with the interests of the men of the family in mind. A man, or his father, uncle or grandfather asked for the hand of the girl from the father, uncle or grandfather of the girl. Men formed both sides of the transaction. The woman was the object on which the transaction took place.

This unwritten law also became one of the cultural pillars of the paternalistic society after the formation of the state. It was not limited to particular era, area or religion. It remains in force even now. Girls learn from childhood to be “weighed up” they learn how to be attractive yet on no account try to “attract”. While men are learning to plan for their future life, and are encouraged to gather whatever is gatherable for a shared life, women learn to wait at home for events to happen. If a women actively seeks a partner, or tries to get the person of her choice to ask for her hand, custom tells us she is committing an indecent act, worthy of social disgrace. Men, on the other hand seek out the woman, and purchase her from her previous owner, as he would any other commodity.

Obedience
The third pillar of the oppression of women in the family is an article in the Civil Code which incorporates the two previous unwritten laws in an clear and practical way. “In relations between couples, heading the family is one of the attributes of the husband” [9]. And the instruments of his command is given to him: “whenever the wife refuses her duties to the couple without legitimate reasons she does not deserve subsistence (nafaqeh)” [10]. This is how the law announced the command for women to submit to men.

The remainder of the articles in the Civil Code dealing with the family expands on the powers and rights of the head of the family and the rights and limitations of the led. The man has legal rights to decision making in all family matters. The woman must obey. Where the man allows the woman to decide, he has in reality transferred to her rights that are by right his; a form of charity for his wife. Even in the Shah’s time, if a woman asked for divorce and got it, from the legal point of view the man had given the wife attorney to divorce her in his (the husband’s ) place [11].

It is in this light that legislation governing polygamy, right to divorce, the custody of children, subsistence (nafaqeh), the right to decide on where to live, work, travel, inheritance, nationality etc. have been devised. It is as if the Civil Code has been devised as a means of defining the limits of the presence and activity of a creature know as woman about whose intelligence there is some doubt. The potential danger posed by this creature to the male-dominated society would only be averted by binding her legally to obey.

The law of obedience which encompasses the whole range of a woman’s life from where she lives, works, is educated, travels and ..... functions with utmost violence in the realm of sexual relations. The law defends regular sexual assault by the man as his natural right. The political-legal system of Iran defends the nightly rape of women! Despite being well dug in popular culture, without the need of being written down, the male-dominated Iranian society needed a reaffirmation of the principle of obedience in order to safeguard his rule. There is unanimity and agreement in all three fields of custom, common law and sharia’ on obedience. Zoroaster taught that the only prayer women need to do was to stand, arms akimbo, in front of their husbands and ask him what he desired or ordered [12].

Kasravi, a true modernist when it came to running the country and society, and despite his contempt for mullah and mullahism, and who wanted women to be free of the Islamic veil, firmly defended the obedience of women and that they should ask permission when leaving the house [13]. Even Family Protection law of 1974 which aimed at modernising society, kept the man as head of the household and emphasised the obedience of women [14]. Majlesi, [15] who require women to submit to their husband’s sexual whims even if he corners them during prayer was not alone.

Even in Europe, where much has been achieved, the question of rape within marriage remains legally acceptable. Obedience and acceptance of the male sexual desire is so ingrained in the psychology of us Iranian women that it can be said without doubt that inside the family, sexual relations have been accepted as the natural needs of men. Many women attribute the lack of desire for sexual relations to their own frigidity and illness, and do their utmost to hide this nightly disgrace within themselves.

To be obedient to the sexual desires of men is to endorse the commercial transaction of marriage. The law of obedience officially destroys women from within and maintains that she is no more than a commodity for the pleasure of her mate. She is, and exists, like all other natural phenomena, as useful and necessary adjunct to the life of humankind (men).

The consolidation of a paternalistic society was only made possible through the control of the sexual rights of women. On the eve of the 21st century, thanks to the rule of the Islamic Republic, the demands of Iranian women has been reduced to the right to chose one’s clothes, divorce, and custody of her children. In the uproar over equal rights, what is being forgotten is the sexual equality of the two sexes. The rights of women in their sexual desires, the control of women on how they deal with it. Until Iranian society can face this right head on no law or sub-law can change the present position of women in society or the family. The total abolition of “premarital virginity”, the marriage proposal and marriage customs and “obedience” are the first steps in the battle to offset the present totally lobsided position of women in Iranian society.