Male Jurists and Female Related RulingsIt was in the late 1960s when I began my studies in Islamic jurisprudence at the madrasa (seminary) of the Ayatollah Milani in Mashhad, Iran. Studies in the madrasa were structured around texts, both initial expositions and commentaries on them. In general, classical Islamic juridical texts were organized to undertake "first things first." Hence, in the Shi`ite jurisprudence, with which I commenced my studies in Islamic law, immediately following theoretical discussion about the necessity of following one of the living mujtahids (theologian-cum-jurist), the teacher began with the rulings connected with ritual purification (kitab al-tahara = The Book of Purification).
I always sensed some uneasiness in the teacher as well as all male fellow students when the rulings on tahara reached intimate matters connected with female purification. At that point, as if sensing a need to justify the embarrassment, my teacher often told the story about the discomfort and inadequacy felt by the late Ayatollah Burujardi (d. 1961) when he had to lecture on the taharat al-niswan (women's ritual purification) to his largely male audience made up of senior members of the religious establishment of the Qumm madrasa. Such sessions were part of the advanced lectures given by Burujardi on juristic principles applied to deduce these rulings. Since the traditional centers of Islamic learning neither allowed female participation nor public discussion on matters concerning women's specific physical condition, the lectures on taharat al-niswan dealt only with closing judicial decisions, leaving the detailed explications of the method and reasoning behind them for individual perusal.
However, that does not seem to be the case in the early days of Islam. The Prophet himself was at various times asked questions regarding the rules of purification for women. Significantly, on many such occasions the women of the Prophet's household were the interlocutors and even the interpreters of the religious guidance that affected women's ritual purity. A'isha, according to the Muslim traditionist, al-Bukhari, was present when a woman in Medina came to ask the Prophet about the rules of cleanliness after finishing menses.
He replied: "Take a piece of cloth perfumed with musk and clean the private parts with it thrice." The Prophet felt shy and turned his face. So I (A'isha) pulled her to me and explained to her what the Prophet meant. In the same section another tradition reports that when the Prophet replied that she should purify herself with a piece of cloth scented with musk, the woman asked: "How shall I purify myself with it?" He said: "Glory be to God, purify yourself!" At that point A'isha came to the rescue of the Prophet and pulled her to herself and taught her the method of cleansing herself.The traditions clearly show that in the early days of Islam in issues dealing with women's ritual purification leading Muslim women provided with the necessary instruction. The Prophet could not and did not exclude women in dealing with their own particular situation in the performance of their religious duties. Moreover, as one can sense in some of these traditions, the Prophet himself sensed discomfort in going beyond expressing simply the rulings dealing with women's ritual purification. This feeling of inadequacy in dealing with peculiarly female concerns in Islamic rituals continues in the way later jurists treated juridical decisions affecting women. Certainly, the difference was that while the Prophet's wives and daughters were full participants in the legal deliberations affecting Muslim women, we have no record to suggest that the womenfolk of the jurist had similar opportunity to intervene in female ritual concerns.
Anecdotes about the male legal scholar dealing with intimate female issues and the problems he faces in conveying innermost contents of female ritual purification constitute legitimate entertainment among the "puritanical" members of the Muslim religious class. The subtle language of the Muslim "seminarians" speaking about the "unspeakable" deserves a separate study. But the contents of these anecdotes that lead modern researchers to the contextualization of the rulings about menses and sexual intercourse also point to the way in which powerfully gender- oriented Muslim culture treats matters connected with the "other gender:" excluding it in the interpretive process.
In the male-dominated religious discourse of the madrasa, information about women's experience is mediated through the "intertext" of the oral transmission of the anecdotes about women. The previous anecdote about the senior male legal scholar embarrassed by female ritual purification provides a symbolic link in contextualizing the experience of something absent - the elicitation of the condition of being a woman by a man in a legal investigation.
While intelligible reenactment of the subjective experience of the "other" through the formation of figurally represented relations is not entirely impossible, its cognitive content is not free of suspicion. For instance, in the context of a legal ruling pertaining to a woman's situation in a society, the legal language constitutes the meaning of utterance about the female "other" mediated through male representations of interpersonal relations, the mu`amalat. The legal utterance, in such circumstances, without taking full account of the concerns and conditions peculiar to female life, is promulgated and interpreted by a male jurist to apply to all women in a society. Hence, what we have in the text is figural rather than the actual representation of woman's situational and objective condition.
To overcome this cognitive impediment one needs to undertake the analysis of the symbolic network of Islamic legal discourse. In other words, contextualization of rulings about sexual segregation, for instance, that still stand unvitiated among the religious-minded Muslims today, cannot be provided by merely referring to the textual and cultural validation of the practice in Muslim societies. One needs to understand the intertextual network of symbols expressed by means of the narratives developed through interlocutory devices in which women are represented as actors, as questioners, even occasionally as disputants. To be sure, these narratives extend beyond the legal rulings about the male-female segregation. They in fact contribute to the formation of a symbolic configuration of Islamic cultural values.
Further elaboration on this particular issue of segregation is in place. In general, rulings about female segregation are based on the concept of `awra, meaning "indecent to expose." On the basis of this concept, jurists regard a woman's body, including her face, as `awra. However, there are controversial texts ascribed to the Prophet and some of his companions that regard even her voice as `awra and hence, "proper for veiling or covering" at all times. Through such an extension of the `awra to include the voice, Islamic law seems to advocate the position in which a woman is legally silenced, morally separated, and religiously veiled. Going beyond the text and the context of these rulings, as I want to demonstrate in this essay, could lead us to such an analysis of the intertextual dimension of the cases that form an entire genre in Islamic juridical texts. It could, furthermore, direct us to pose a fundamental question in the Muslim juridical studies: Can the male dominated religious epistemology provide an authentic voice in the interpretive process connected with the female "other"? How can male jurists undertake to map the subjective experience of the silent "other" of a Muslim society? At this juncture I need to point out my reservations about lending whole-hearted support to feminist jurisprudence that regards male dominated legal decisions as being conditioned by ideological interpretation of law, and the male bias being the source of violation of women's human rights. Even in the male dominated Islamic culture, at the level of figural representation, male jurists have been able to transmit female existence and experience, however imperfect, by eliciting that segment of their ideological utterances that consider both genders to be part of humanity. Without such an acknowledgement of essential humanness of men and women, it would have been impossible for them to transmit those values in the culture that saw woman and man in relational terms as parents, sister and brother, daughter and father, mother and son, and husband and wife. Islamic legal discourse has not always conceived of male-female relations in terms of gender power struggle.
The argument to be developed in this paper is that the major part of the present epistemological crisis in Muslim jurisprudence over women's issues is due to the blatant absence of female voice in Islamic legal discourse. It is remarkable that even when women transmitters of adth were admitted in the `ilm al-rijal ("science dealing with the scrutiny of the reporters") dealing with source criticism to authenticate adth-reports in the Sunna, and even when their narratives were recognized as valid documentation for deducing various rulings, they were not participants in the intellectual process that produced the prejudicial rulings encroaching upon the personal status of women. More importantly, the revelational text, regardless of its being extracted from the Qur'an or the Sunna, was casuistically extrapolated in order to disprove a woman's intellectual and emotional capacities to formulate independent decisions that would have been more sensitive and more accurate in estimating her radically different life experience. The demand today for new and expanded methodology of usul al-fiqh among the Muslim fundamentalist leaders, clearly shows the crisis that faces male-dominated epistemology in coming to terms with the demands about the recognition of the women's personal status and the substantive-cognitive role of their reason in reversing prejudicial decisions that deny her dignity as a full person.
In order to demosntrate the seriousness of this crisis in Muslim legal studies, let me begin by setting forth some preliminary observations about Muslim religious epistemology. There are four basic components that constitute legal studies:
- the usul: fundamental sources that provide paradigm cases and the general principles that are behind them;
- the furu`: present instances for which legal decisions are being sought in the light of paradigm cases provided in the fundamental sources;
- the mawdu`at: "objects" or "situations" that determine the status of present instances and the ordinances that could be based on them to decide whether it is an obligatory act, a recommended act, or an act permitted at discretion, and so on.
- the ahkam: ordinances that specify the religious practice.
Whereas Muslim scholars are in agreement that acquisition of knowledge regarding the usul (fundamental sources) is incumbent individually on the community members who should undertake investigation of these sources themselves, in matters of ahkam (religious ordinances) they must follow the judicial rulings of a qualified jurisprudent, mujtahid. However, the practice of the community throughout the history has been to follow the juridical authority in acquiring knowledge regarding both fundamental sources and the rulings derived from them. This method of acquisition of religious knowledge on the authority of a learned member of the community is identified as taqlid (following the authority of a leading legist), which is theoretically permissible only in the matters related to religious practice. What is the status of mawdu`at (objects in a case)? Is taqlid permissible in acquiring knowledge about "objects" and "situations"?
Mawdu` (singular of mawdu`at) signifies the actual state of a thing before a ruling can be deduced. For instance, before a jurist issues a ruling regarding the shortening of the daily worship for those who travel between two neighboring cities, such as Berkeley and Palo Alto, he needs to define the legal extent of a large city. Such an explanation of the size of a city for legal purposes is known as mawdu`, that is, substantive information about factors that characterize a city. Or, in order to rule about ritual impurity of the blood that stains a shirt, a jurist needs to ascertain that it is definitely human and not insect blood, because the status of human blood is different in determining ritual impurity of the shirt.
Muslim scholars acknowledge that in investigating the mawdu`at one need not be an expert. In fact, an ordinary believer is in some instances even more proficient than a scholar in determining the factual state of an object or a situation. What matters is the practical knowledge about an issue under investigation. As such, one need not follow another person's knowledge in mawdu` if he or she is certain about its actual state. Moreover, juridical principle states that knowledge about mawdu` does not fall under the category of taqlid, that is, one need not follow the juridical authority in order to determine objects and situations of a case; rather, one should undertake its investigation individually. The presumption is that determination of the state or contextual situation of the case is a rational process open to all who possess sound reasoning. One should not let someone else determine the object on which a judicial decision would be based. However, there is a stipulation in Islamic law that in the case of a legally incompetent person or a minor, determining the mawdu` could be assumed by a legal guardian (wali), including a jurist.
To recapitulate, of the four fundamental components of Islamic legal system it is only ahkam -ordinances- that require following a jurist's research and conclusions based on the main sources of Islamic legal formulations. The other three parts are open to individual research and their ultimate acknowledgment or rejection. More importantly, it is in the area of mawdu`at, as they affect the religious practice, that there exists the space in which interpersonal negotiations between different groups and individuals are possible. The usul that should be based on firm rational inquiry have their place in the hearts and minds of the believers. Unlike the mawdu`at, the usul (the paradigm cases in the Qur'an and the Sunna) have only an indirect influence on the final outcome of a juridical ruling.
This male dominated religious epistemology has given rise to several fundamental questions related to the determination of the situational aspects of cases in connection with women. First of all, are women any different from men in understanding the process of identifying objects and their contexts as required prior to issuing the legal decision? How about their role in ascertaining the particular substantive state of woman's situation related to sexuality and reproduction, marriage and divorce? Is there any principle in the juridical theory that would suggest a form of thinking that distinguishes between the concerns of men and the concerns of women?
If one follows the prerequisite individual rational inquiry in the mawdu`at it would be correct to conclude that the Islamic belief system dictates that women need to represent their own concerns in all matters of family and maternity care. Implicit in this proposition is the recognition of women's right to assess their particular social situations and determine the legal applications in accordance with their sense of priorities. Furthermore, since the Islamic belief system does not speak about justice in terms of equality of sexes and treats the underlying difference of sex as natural, not the creation of society, defining a particular mawdu` has to be undertaken by the party concerned. From the juridical literature examined in its historical context, it is evident that, relatively speaking, Muslim jurists succeeded in pursuing the Qur'anic impulse towards family relationships and asserting individual rights on the basis of God- centered equality. And, although man retained wide authority over the wife, laws were enacted to give woman unprecedented respect and protection in the patriarchal context.
In family law, the rights of women, children, and other dependents were protected against the male head of the family, who, on the average, was stronger than a woman and more independent, since he is free of pregnancy and immediate care of children. Islamic marital rules encouraged individual responsibility by strengthening the nuclear family. Islamic law protected male prerogative on the grounds that men were required to support the household; whereas women were protected primarily by their families. All legal schools gave a husband one-sided divorce privileges because for divorce initiated by a woman would mean unsettle her husband's economic investment. Under these rules a husband could divorce a wife almost at will; but a wife who wished to leave her husband had to show good reason. The main legal check upon the man in divorce was essentially financial and a matter of contract between equal parties that included a provision about bridal gift. Part of the gift (sidaq or mahr), which might be substantial, was paid at the time of marriage; if he divorced her without special reason, he had to pay her the rest.
The equality of women in the law carried with it an important financial independence. Muslim women could own property which could not be touched by any male relative, including her husband who was required to support her from his own funds. Moreover, women had a personal status which might allow them to begin their own business. However, this potential female independence was curbed primarily by cultural means, keeping marriages within the extended family, so that family property would not leave the family through women marrying out.
Hence, although wives and daughters were given a stronger position than they had in the pre-Islamic Arab culture, in one area the Qur'an left the status of women to become the mawdu` for laws that permitted, though mitigated, unequal status between men and women, reducing a woman to "half-the-man." Her distinctive contribution in determining her own social context was thoroughly excluded by eliminating her as the interpreter of her own objects and situations. Patriarchal structures of Arab culture, in the form of loosely camouflaged traditions ascribed to the Prophet, left her intellectually crippled, while the male jurists prepared the text of the laws for her insidious domination by male members of the society.
It is relevant that it is mainly in the sphere of interpersonal relationships, the mu`amalat section of the jurisprudence, that woman's input in clarification of her mawdu` - her substantive social context - was kept in check. In the sphere of God-human relationship, the `ibadat section of law, her equality with man before God was never questioned. Nevertheless, the manner in which her input in the mu`amalat was circumscribed had implications for her performance of the `ibadat, the requirements of God-human relationship. Thus, for instance, the prohibition of independent female travel, requiring the presence of a male relative, has directly affected her religious freedom to undertake the performance of the obligatory hajj (annual pilgrimage) in Mekka. This prohibition, it must be pointed out, was based on the juristic principle that "averting causes of corruption has precedence over bringing about that which has benefit" (dar'u al- mafasid muqaddam `ala jalb al-masalih). Other similar juristic principles have also been regularly invoked to curb not only women's rights but also the rights of minorities to function as full citizens in some Muslim societies.
Paradigm Cases in Rulings about Woman's StatusThe paradigm cases dealing with the status of women are derived directly from an investigation of the sources of law. The sources are treated hierarchally, reflecting the religious evaluation of the epistemes contained in the Qur'an and the Sunna. Thus in formulating judicial decisions (fatawa) a jurist goes first to the Qur'an, then to the exegetical works in conjunction with the Sunna, and finally, to the juridical corpus, in that order, to follow the process of extrapolating fresh decisions from paradigmatic cases. I follow this approach with the methodological concern that any study of this kind requires a normative interpretation of the religious underpinnings presented in the Qur'an. It is foundational to my study to raise the question: Should "Islam," as a belief system, be defined and judged by its practitioners or should its practitioners be defined and judged by a normative standard provided by the revelational sources on which the religious belief system is constructed? I believe I need an interpretive standpoint from which I can judge that some affirmations regarding women are peripheral or incidental to the tradition and that others are central and essential, that some are privileged and can serve as a guide for the interpretation of others. With this in mind, I begin to respond to my question: "Woman, half-the-man?" by looking at the Qur'an and its exegesis as the source of religious affirmations that altered, in decisive ways, the objects and situations within which legal-moral judgements were made regarding women in Muslim society. The estimation of a woman's position in the jurisprudence, is contextualized in the following pertinent reference, where the Qur'an speaks about contracting a debt:
O believers, when you contract a debt one upon another for a stated term, write it down, and let a scribe write it down between you justly, and let not any scribe refuse to write it down, as God has taught him; so let him write, and let the debtor dictate, and let him fear God his Lord and not diminish anything of it.....And call in to witness two witnesses, men; or if the two be not men, then one man and two women, such witnesses as you approve of, that if one of the two errs the other will remind her; and let the witnesses not refuse, whenever they are summoned.....And fear God; God teaches you, and God has knowledge of everything. (emphasis added) (Q. 2:282)The passage is regarded as the scriptural basis for the law of evidence (shahadat) in jurisprudence. Moreover, it has also been evoked to communicate the inferiority of a woman's evidence as compared to a man's. Exegetical literature discusses variations in the reading of the phrase: "....if one of the two errs ('an tadilla ihdahuma)," and consider whether the clause is conditional and if it connotes the superiority of male memory power. In fact, abars cites a specified opinion which he rejects and which maintained that the Qur'an made this provision of "reminding" in women's evidence because "forgetfulness overcomes women [inherently] more than it does men."
None of the commentaries in the classical age go beyond lexical and grammatical exposition of the statement to establish that women are in need of being reminded in order to render their evidence equal to that of a man who enjoys impeccable memory. To be sure, Baydawi maintains that the Shafi`ite jurists implemented the terms of this verse only in the case of business and financial transactions (amwal), whereas the anafites extended the requirement to criminology and law of retribution.
Yet, the grammatical conclusion that the Qur'anic statement "if one of the two errs...." is a conditional clause had enormous implications in explicating the nature of divine commandment in jurisprudence. This grammatical specification had been acknowledged despite the fact that only one transmitter among the early transmitters of the Qur'anic text had insisted in reading the clause as conditional with 'in. For the jurists looking at the denotation of the statement the question is: Is the conditional commandment given for the specific situation in the Medina society to be interpreted as an unconditional commandment, evincing the probable conclusion that regardless whether a woman errs or not, her evidence is to be reduced to half of a man's evidence?
In fact, some later exegetes, like the Shi`ite Mulla Fath Allah Kashani, maintained that the statement is unconditional because woman is inherently weaker in her rational judgment than man who is intellectually stronger, and forgetfulness is far from his nature. Furthermore, he asserts that, according to Sufyan b. `Uyayna, the verse's requirement of two women brings together the evidence of two women and raises it to be equivalent to that of one man. However, both the explicit denotation and the implied context of the verse in the exegetical literature strictly allowed a conditional commandment to be surmised. It denied the unconditional purport with its implications for the inherent inferiority of a woman that was asserted in the legal decisions, including those maintained by the Shafi`ites in the limited area of financial transactions.
In the legal texts, the object and the social situation of a Muslim woman, as extracted from the conditional commandment of the Qur'an, was defined in terms of her position in the regional culture. The cultural evaluation of a woman was transmitted in some of adth-reports that were used to overcome the conditional denotation of the Qur'anic law of evidence. These were used as evidentiary documentation to extrapolate unqualified stipulations that a woman's evidence equals half of that of a man's, regardless of the situational factors.
When we examine the hadith literature to determine how far Q. 2:282 had reinforced the cultural estimation of a woman's intelligence in providing evidence, we discover that al-Bukhari has preserved an interesting rubric in one of the odd places towards the end of his compilation dealing with the evidentiary nature of a "single" narrative (khabar al-wahid). Al-Bukhari's rubrics actually serve as his judicial decisions (fatawa) for which he produces hadith-reports that follow as documentation. Thus, under the rubric of Khabar al-mar'at al-wahida (narrative reported by a "single" woman), he cites the following tradition:
[`Abd Allah] ibn `Umar said: Some companions of the Prophet, including Sa`d, were going to eat meat. But one of the wives of the Prophet called them, saying: "It is the meat of a certain reptile (dabb)!" The people then stopped eating it. On that the Prophet said: "Carry on eating, for it is lawful." Or, he said: "There is no harm in eating it, but it is not from my meals."An important dietary matter is the object of the narrative, on the basis of which a legal ruling permitting a particular kind of meat is being deduced. However, this permission is stated on the authority of the Prophet, who reportedly reverses an opinion prohibiting its consumption expressed by one of his wives. The implications of this hadith for the admissibility of a woman's evidence in specifying the object of a ruling cannot be sufficiently emphasized. The hadith indicates that a narrative related by a "single" woman, even if she happens to be one of the Prophet's wives, cannot be permitted as evidence for a prohibitive legal ruling. On the contrary, as reported in another tradition in the same section, a hadith reported by a "single" truthful male transmitter is admissible as documentation for all kinds of ordinances.
The purpose of al-Bukhari's compilation is not to provide additional documentation by citing the above verse as proof for his implied conclusion that regarding a "single" female narrator's credibility is vitiated by the absence of another female. However, the law of evidence in Q. 2:282 is the unmistakable context of this tradition. This and other similar traditions raise serious questions not only about the authenticity of these narratives that ignored the intertextuality of the daily details of the lives of women entrapped in male jurist's subjectivity and his skewed vision of her social role; it also puts in doubt the claim by the pious for the validity and applicability of these legal rulings in all age and at all times. Moreover, in the absence of reevaluation of the relevant authoritative texts within their historical and cultural contexts, Islamic jurisprudence has been impaired by irrelevant hairsplitting exercises, reflecting an acute formalistic rather than substantive approach to religious knowledge. Hence, instead of squarely confronting the question of mawdu`at dealing with women's situation in Muslim society under variable historical circumstances, the jurists have vacillated between the prestige of the written tradition and non-essential conceptual and terminological devices developed in the Islamic legal theory to interpret it. Both the methods of inquiry and the forms of argument indicate the juridical tradition's inadequacies in furnishing solutions to the concrete problems faced by Muslim women. The nature of religious discourse employed in the madrasa setting makes it epistemically impossible to speak about specific objects and situations peculiar to Muslim woman's personal status, without referring to the revelational knowledge preserved in the prestigious texts. It is ultimately the written tradition - and not human reason that can negotiate the intertextuality of the judicial decisions made by a male jurist. Application of human reasoning, in any of its forms, has been permanently crippled by the madrasa attitude, articulated in various works of Islamic thought, that human reason on its own is not capable of extracting practical knowledge regarding an ideal Islamic order.
The legal rulings regarding the inferiority of woman's evidence were extrapolated mainly on the basis of the Qur'an 2:282, fortified by traditions that accepted the inherent inferiority of women in matters of religion and intelligence. These rulings reveal even more serious problems in defining the object and situational context (mawdu`at) particular to women's social and personal condition. Undoubtedly, it was in the area of evidence that it was inferred that al-Bukhari implied that a single woman's testimony is half that of a man's. Yet the conditional commandment of the verse 2:282 could not be interpreted so explicitly in view of the contextual restriction imposed by the kind of transaction. To resolve this apparent contradiction between the restrictive and conditional terms of the verse, and the unqualified terms related in some traditions, jurists had to define the objects and situations in which female evidence and attending conditions could become operative.
Investigation in the specific text and the context of the Qur'an and the hadith led jurists to recognize substantially different situations in Muslim interpersonal relations where women functioned as witnesses, providing objective testimony for ultimate judicial rulings. The Qur'anic law of evidence treated only one instance of the social situation in which her evidence in the matter of contract involving financial obligation was, for practical reasons, devalued. Muslim jurists were cognizant of other situations in which this conditional and situational enactment of the Qur'anic law could not be generalized. Consequently, they promulgated three situations in the process of validating a woman's testimony on any interpersonal situation, including contractual agreements:
- A non-permissible situation in which women's testimony is not admissible at all;
- A permissible situation in which women testified with men; and, therefore, their testimony is admissible;
- A permissible situation in which women's testimony is admissible, even if there were no men testifying with them.