Women and Leadership in Islamic Law

A Critical Analysis of Classical Legal Texts

David Solomon Jalajel

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781138123137
• eBook ISBN:
  9781317302735
• Topic: Theology & Religion
• Subtopic: Islamic Theology

Islamic law has traditionally prohibited women from being prayer leaders and heads of state. A small number of Muslims today are beginning to challenge this stance, but they face considerable opposition from the broader Muslim community.

'Women and Leadership in Islamic Law' examines the assumption within much existing feminist scholarship that the patriarchal nature of pre-Islamic and early Muslim Near Eastern Society is the primary reason for the development of Islamic legal rulings prohibiting women from leadership positions. It claims that the evolution of Islamic law was a complex process, shaped by numerous cultural, historical, political and social factors, as well as scriptural sources whose importance cannot be dismissed. Therefore, the book critically examines a broad survey of legal works from the four canonical Sunni schools of law to determine the factors that influenced the development of the legal rulings prohibiting women from assuming various leadership roles. The passages that elaborate rulings about women's leadership are presented in translation as an appendix to the research, and are then subjected to a variety of critical analyses to identify the reasons, influences, and assumptions underlying those rulings.

This is the first time works of all four schools of law have been subjected to this kind of analysis for the express purpose of determining the extent to which gender attitudes have influenced and determined the rulings. This book will therefore be a vital resource for students and scholars of Islamic Studies, Religious Studies and Gender Studies.

1
Legal theory

Ideological and methodological justifications

1.1 Introduction

This chapter is concerned with the evidence and methodological approaches used to justify rulings on women and leadership. Classical Islamic legal theory is used as an organisational framework for presenting and analysing the arguments and evidence. The degree to which the arguments in the surveyed works conform to theoretical expectations is examined as well as the role of legal arguments found in the works that do not conform to what is outlined in theory, but which nevertheless may reflect the actual legal thinking behind the rulings.

Islamic legal theory, or jurisprudence, is referred to in Arabic as uṣūl al-fiqh, meaning ‘the principles or foundations of the law’. It is widely held that Islamic legal theory was first established as an independent discipline by al-Shāfiʿī (d. 204/820), with the writing of al-Risālah. This view has recently been challenged by Lowry, who argues that mature legal theory is quite different than what al-Shāfiʿī conceived, and he identifies the work of the Ḥanafī jurist al-Jaṣṣāṣ (d. 370/980) as being the first work representative of the discipline in its classical form.¹

In either case, it means that the development of legal theory took place sometime after Islamic law began to be systematically codified, but before the composition of the major post-formative legal works which provide the evidence and rationales for their respective schools’ legal rulings. The works of legal theory identify the sources from which laws can be derived as well as the methods for interpreting those sources and deriving laws from them.

There are four primary sources of law that are agreed upon by all the canonical schools of law. They are: the Qur’an, the Sunnah, consensus (ijmāʿ) and juristic analogy (qiyās).² There are other sources recognised by some but not all the legal schools. They are: juristic preference (istiḥsān), preventative legislation (sadd al-dharā’iʿ), which refers to preventing legal loopholes or preventing the means to sin, considerations of general welfare (al-māṣāliḥ al-mursalah), general practice of the people of Madīnah (ʿamal ahl al-Madīnah), and local customs (ʿurf). Moreover, even where the schools agree on recognising a source of law, they differ in many ways regarding their understanding and approach to using that source.

This chapter is divided into sections corresponding to the sources of law mentioned above. Each section begins with a general introduction providing a brief overview for that particular source of law, which is followed by a discussion of every identifiable instance where this source of law is applied in the texts under survey. When a formal legal argument is brought up in the surveyed works which does not conform perfectly to one of the sources of law, it is discussed in relation to the source it most closely resembles.

The introduction to each section does not set out to elaborate on all the questions of Islamic legal theory related to that source of law, which would be an exhaustive work in its own right. Instead, it highlights the important areas of convergence and disagreement between the four schools. Elaborations on the finer points of theory are introduced as needed in the discussions of the particular legal arguments drawn from the surveyed texts.

1.2 The Qur’an

The Qur’an is the first source of law recognised in works of Islamic jurisprudence.³ Its authority is above question, since all Sunni Muslims accept the theological doctrine that the Qur’an is God’s complete, direct and infallible word.⁴ Moreover, the Qur’an is unanimously regarded by all legal theorists as being of undisputed authenticity (qaṭʿī al-thubūt), meaning that its textual integrity is a matter of absolute certainty. They support this claim by arguing that the text has been confirmed through numerous chains of transmission from the Companions, and these various lines of transmission validate one another to the point of certainty.⁵ They also cite verses from the Qur’an to argue that it is a matter of faith that the Qur’an is divinely protected from corruption.⁶

In spite of the authoritative status that the Qur’an enjoys as a source of Islamic law, one thing that becomes clear from the legal works in the survey is that Muslim jurists rarely support their arguments against women’s leadership with the Qur’an. The majority of the surveyed texts do not cite the Qur’an at all. In fact, there is only a single instance where a jurist cites a verse of the Qur’an as direct evidence for disallowing women’s leadership. Then there are two other isolated instances where a verse is cited by a jurist within the context of a more complex argument.⁷ These three verses will be discussed.

1.2.1 Sūrat al-Nisā’ (4), verse 34

The verse reads in full:

Men are responsible (qawwāmūn⁸) over women because God has favoured some over others and because they spend out of their property; the good women are, therefore, obedient, guarding the unseen as God has guarded; and (as to) those on whose part you fear desertion, admonish them, and leave them alone in the sleeping-places and beat them; then if they obey you, do not seek a way against them; surely God is High, Great.

The Shāfiʿī jurist al-Māwardī (d. 450/1058) cites the first part of the verse in al-Ḥāwī al-Kabīr to argue against women holding judicial authority. He is the only jurist in the surveyed works to do so, saying: ‘Men are responsible (qawwāmūn) over women on account of what God has favoured some over others, meaning in intellect and opinion, so it is not permissible for them [women] to be in positions of responsibility over men.’

He cites the verse again to rule that women cannot lead men in prayer. For prayer leadership, he is following al-Shāfiʿī’s lead in al-Umm, who supports his ruling against women leading men in prayer by saying: ‘God has appointed men to be responsible (qawwāmūn) over women and restricted them [women] from being people in authority, among other things.’ Al-Māwardī is one of the only Shāfiʿī jurists in history to take up this argument.⁹ Likewise, none of the jurists surveyed from the other three schools suggest this verse as evidence.

Al-Shāfiʿī does not cite the verse outright in al-Umm, but vaguely alludes to men being responsible (qawwāmūn) without explaining its connection to the ruling of leading prayer. However, al-Bayhaqī’ (d. 458/1066), in his biographical work on al-Shāfiʿī entitled Manāqib al-Shāfiʿī, quotes from him a more elaborate argument than the one which appears in al-Umm. It is worth repeating in full:¹⁰

We are told by Abū Saʿīd b. Abī ʿAmr from Abū al-ʿAbbās al-Aṣamm from al-Rabīʿ that al-Shāfiʿī said:

It is impermissible for a woman to lead a man in prayer, as they are restricted in it where men are not, because God said: ‘Men are responsible (qawwāmūn) over women’, and He said: ‘And men have a degree above them.’¹¹

Since prayer is a matter in which the imām stands in charge of the follower (yaqūm bihi), it is impermissible for the woman subjected to a man responsible over her (qayyim), to be in a position of responsibility (qayyimah) over that man who is in a position of responsibility over her.

Also, since prayer leadership is a degree of favour, it is impermissible for her to have a degree of favour over the one whom God has given a degree of favour over her.

Since it is from the Prophet’s Sunnah – and then that of Islam – that she is supposed to stay back behind the men, it is not permissible for her to be ahead and right in front of them.

If someone were to say: ‘a slave is disfavoured’, [the reply would be:] likewise the free man can be disfavoured. Then it is possible that someone could come along who is favourable to him. It might be that the slave is better than the free man. He might come into circumstances where he will be manumitted and become a free man, but under all circumstances he is one of the men. The woman will never be, in any circumstance, anything but a woman with someone from among the men responsible over her in the generality of her affairs.

The two verses cited in this passage are interpreted in the most general terms possible. The position of responsibility that verse 4:34 refers to is taken as all-inclusive, so a woman is never to be put into any situation where she is in a position of responsibility over a man. Then the ‘favour’ in verse 4:34 is linked to the ‘degree’ of 2:228, to arrive at the conclusion that a woman must be prevented from attaining any ‘degree of favour’ over a man whatsoever, since that would be against the divine will. Moreover, a woman is always under a man’s responsibility, so her disfavour is a constant state for her, unlike that of a slave, who has the potential for manumission.

These arguments are highly subjective and in stark contrast to the type of language and careful arguments we find in al-Umm and in al-Shāfiʿī’s many other writings. This difference is quite clear when we compare this passage to the passage from al-Umm in the surveyed texts, where we find al-Shāfiʿī to be far more reticent. It is significant that he refers to the verse without actually citing it, since he does not hesitate to quote the verse in numerous other places in al-Umm.¹² By not citing the verse, he is able to discuss the implications of God making men responsible for women without being encumbered by the verse’s context. His language is careful, referring the matters of responsibility and authority to prayer leadership while avoiding any sweeping generalisations that would strip women of their legal agency altogether.

Another issue with the passage from Manāqib quoted above is that some of the generalisations are contrary to other rulings in the school. For instance, the conclusion that a woman has ‘someone from among the men responsible over her in the generality of her affairs’ is at variance with numerous rulings where Shāfīʿī law regards the woman as a legally independent agent.

What can account for this? We need to consider that the sources of the two texts are very different. The text in Manāqib is related from al-Shāfiʿī’s student al-Rabīʿ, whereas the passage in al-Umm is what al-Shāfiʿī is recording for posterity in a highly systematic and rigorously argued book of law. The most likely possibility is that al-Shāfiʿī was freer in his words when speaking to his students than when he set out to write his magnum opus. It may also be that the details of the argument narrated from al-Rabīʿ have been altered somewhat in their wording, whereas the text in al-Umm is in al-Shāfiʿī’s own carefully chosen words. Though al-Rabīʿ is regarded as al-Shāfiʿī’s strongest and most precise student in narrating his opinions,¹³ and the others in the chain of transmission are regarded as highly reliable,¹⁴ narration by paraphrase was quite common, even with prophetic ḥadīth, and it is easy to conceive how an oblique reference to a verse can turn into a full quotation, and cautiously worded arguments can become more general and sweeping in their terms and implications. Long, elaborate arguments like the one above are highly vulnerable to such alterations during transmission.

Whatever the case, al-Māwardī does not take his cue from al-Shāfiʿī’s reticence in al-Umm. Instead, he goes further and makes the assumption that the favours in question are ‘intellect and opinion’ and concludes that the disparity between men and women in these qualities is severe enough to prevent women from holding any leadership position over men. This line of reasoning also necessitates that he understands the word qawwāmūn (plural of qawwām), translated here as ‘responsible’ to refer to positions of authority in general.

Al-Māwardī’s book is a commentary on the abridgement of al-Umm carried out by Ismāʿīl b. Yaḥyā al-Muzanī (d. 264/878). Therefore, it is understandable that he would draw some of his arguments from al-Umm. However, this line of argument is ...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Introduction
• 1 Legal theory: ideological and methodological justifications
• 2 Gender: cultural and social justifications
• 3 Rulings and arguments: the law justifying itself
• Conclusion
• Appendix – translations of the surveyed texts
• Bibliography
• Index