Introduction
Islamic sacred law, the Shari`a, has been
regarded by Muslims as a perfect, divinely ordained
religious-ethical-legal system. The Shari`a relates Muslims to God's
purposes by providing comprehensive directives in the two spheres of
human activity: those actions that relate humanity to God, and those
that relate humans to fellow humans. The former actions are categorized
as `ibadat (literally, "acts of honoring God", technically,
God-human relationships) and the latter are known as mu`amalat
(literally, "transactions", technically, interhuman
relationships). Whereas the God-human relations have remained more or
less immutable in the Shari`a, the area of interhuman relationships has
demanded rethinking and reinterpretation of the normative sources like
the Qur'an and the Sunna (Tradition) to deduce new directives under
changed social conditions. There are, however, epistemological problems
connected with the way normative sources are retrieved and interpreted
by Muslim jurists which have hampered the necessary progress towards one
particular area in the interhuman relationships, namely, the personal
status of Muslim women. The juridical deliberations in the exclusively
male-oriented traditional centers of Islamic learning, the madrasa, have
disregarded female voices in the emerging discourse connected with
women's issues and human rights. The redefinition of the status of a
Muslim woman in modern society is one of the major issues that confronts
Muslim jurists' claims to be authority on legal-ethical sources of
Islam. But such a redefinition, as I argue in the paper, is dependent
upon Muslim women's participation in the legal- ethical deliberations
concerning matters whose situational aspects can be determined only by
women themselves. Without their participation in legal-ethical
deliberations, women's rights will always depend on a
"representational discourse" conducted by male jurists who, in
spite of their good intentions, treats the subject as "absent"
and hence, lacking the necessary qualification to determine her rights
in a patriarchal society.
Male Jurists and Female Related Rulings
It 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 demonstrate 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
Status
The 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 Hanafites 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.
It is worth noting that in none of these
cases is a woman admitted as the only witness. In all instances she is
mentioned in plural, not necessarily in the formula of two women equal
to one man, as implied in the Q. 2:282. In most of the examples cited
for each situation it is not difficult to find the underlying concern of
the Muslim culture in which a woman's role was defined by the powerful
male functioning as her manager. More pertinently, while her testimony
was admitted in instances of marriage and debts or in areas of her
expertise such as determining cases of rape and pregnancy, her evidence
was excluded from cases of divorce and murder. When it came to cases of
adultery, Islamic law admitted two women's testimony if accompanied by
that of three men. However, if there was only one male witness and six
or more female witnesses, their collective testimony could not be
regarded as valid. On the other hand, a single woman's claim that she is
virgin when accused of adultery by four male witnesses, stands
unvitiated provided a midwife establishes the validity of her claim.
Concluding Remarks
Rulings about woman's testimony have
filled the sections of kitab al-qada' (administration of justice) where
jurists have identified minutely where and when women can function as
qualified witnesses. It is not difficult to discern underlying concern
for justice when one takes into account stringent requirements to
establish evidence for accusation against anyone in Muslim society.
However, there is no doubt that the tone of the rulings is set by the
powerful male jurist, who, in most cases, ignores the female evaluation
of her own social situation, for instance in divorce, that furnishes the
object of the ruling. There is almost an a fortiori argument derived
from the Q. 2:282 to support the implied inherent inequality of sexes
which then makes men take charge of a woman's affairs as determined by
the competent legal authority. The religious epistemology that was
constructed on revelational knowledge in the juridical studies has
served the Muslim jurists' endeavors in extracting unconditional
commandments from the conditional and culturally conditioned references,
both in the Qur'an and the Sunna dealing with the historical Muslim
social universe.
The treatment of women in Islamic legal
tradition is a classic example of the "epistemological crisis"
faced by madrasa-educated scholars of Islamic law. Honest and critical
evaluation of this crisis is dependent upon the appraisal of the
historical development of theoretical and conceptual structures of the
Islamic religious sciences, including jurisprudence. In order to provide
an authentic intertextuality to the text and the context of legal
rulings that reduce women, in a mathematical fashion sometimes, to half
a man, Muslim male jurists have to include women in communicating the
mawdu`at about women. Without such participation in the interpretive
process of the text to communicate its context and intertext that has
been the source of her cultural subjugation, Muslim women stand little
chance to overcome being reduced to the legally silent, morally
segregated and religiously veiled half-the- man.