An important distinction needs to be made between a Qur'anic society and an Islamic society. Ideally there should be no distinction between the two, but unfortunately there is. The media has mostly lumped teachings in Islam together with any and all practices by Muslims. These practices may include pre-Islamic cultural practices mentioned earlier that could even be in violation of Islam, yet still get referred to as "Islamic". The Qur'anic society, however, is of the textual and well-balanced nature of the Qur'an itself and the related narrations of the Holy Prophet and his Holy Progeny (peace be upon them) and excludes any contradictory practices done by Muslims or Muslim nations.
Ayatollah Murtadha Mutahhari, a leading Shia Muslim scholar, was one of the founding members of the Islamic Republic of Iran in 1979. In his book Woman and Her Rights, he outlines the popular views of human rights in Islam and the notion of natural rights. He objects to the European and American secular standards of human rights and says "…we, in the name of these very human rights, believe that we have a right to differ. In our view, the only authoritative source is nature itself which may be regarded as a divine book."
Islam believes that human rights are derived from natural rights and that the creator of the natural existence, God Almighty, should be respected as such. Furthermore, human rights should be based upon the natural relationships and roles that exist in humanity rather than creating artificial equalities and rights in nature or dismantling essential rights and thereby destroying the natural balance of civilization, all in the name of obtaining "equality", which he argues is not equality at all.
The majority of the Qur'an and hadith addresses both men and women equally, referring to them as an-Naas (people or mankind), and not any particular gender. Laws attributed to the general public and civil society have no gender association and are applicable to all. However, domestic laws are role-based, depending on the gender's natural abilities, rights, and responsibilities. The domestic society is partly contractual, as it is in civil society, and partly instinctive, based on nature and creation. (It is purely instinctive for all animals)
Domestic System = Semi-Natural (Instinctive) + Semi-Contractual (Civil-society-like)
"Every natural capability is the basis of one natural right and, at the same time, a natural authority for the implementation of that right. For example, every human child has a right to learn and to go to school, but a lamb has no such rights." This is because of the natural ability endowed in a child to learn and become wiser, and yet a lamb has no such natural ability. In the well-balanced existence, all species are bound by their natural capabilities and advance within those realms. Such is applicable to natural capabilities of men and women and asserts whether rights between the genders should be identical (similar) or not.
While all humans have a right to work, not all humans can perform equally, and as such, their rights cannot be identical. For instance, if one has acquired certain skills, (s)he cannot be expected to be kept at the same level of rights of his/her childhood – that is, a child has certain rights, and an adult has certain rights, and at some point, the set of rights granted to the human changes based on his/her maturity. Of course, nobody is born into any particular field of work in civil society, such as a president, police officer or teacher, yet this is a difference from animals in that some of them are born into distinct roles (such as a queen bee). Herein lies the concept of role-based rights.
In order to establish a natural right, the authority for such is a natural capability. In addition, humans have equal and identical natural rights in civil society which can also differ based on acquired rights. But again, civil society is not the same as the domestic society, since it is purely contractual and does not involve functions associated with gender capabilities. In a domestic society, a man and a woman do not have identical capabilities and needs, and nature has placed them in distinct roles.
The basis of difference in rights between human species and animals, and the difference between various societal role-based rights, is the concept that leads to different, but equal, natural rights between the genders. "No doubt woman as a human being is born free like any other human being, and in that capacity she has equal rights. But woman is a human being with certain peculiarities, as man is a human being with certain other peculiarities. The traits of their characters are different, and their mentality is distinct. This difference is not the result of any geographical, historical or social factors, but lies in the very making of them." The difference in the natural rights between the genders, however, is not simply due to the gender itself, but it is due to the role the gender has the ability to play – such as husband, father, mother, wife, daughter, brother, and etc.
The human rights set into action need to consider the complexities of the roles humans can play in civil and domestic society, not just their gender alone. "Liberty and equality are no doubt essential, but they are not all in all everything in entirety. Equality of rights is one thing, but the similarity of rights quite another. The equality of man's and woman's rights from the viewpoint of material and moral values is quite different from the uniformity or similarity of their rights."
In the Qur'an, Allah talks about the sun and the moon and how they each float in an orbit not meant to outtake the other (36:40), and such is the theory of human rights of the man and woman. "Man and woman are two starts with their distinct orbits within which they should move," writes Ayatollah Mutahhari.
Sayedeh Kasmai-Nazeran studied her Masters of Science degree at the Institute for Conflict Analysis and Resolution at George Mason University in Arlington, Virginia. Her focus is on dialogue mediation, peacebuilding and human rights in Islamic philosophy and jurisprudence. She has also moderated and participated in many interfaith dialogues. Her most recent paper is entitled "Islamic Feminism: Women's Rights in the Shi'a School of Thought". You can read more about Sayedeh at her website www.sayedeh.com.