Two women, one man: Knowledge, power, and gender in medieval sunni legal thought

International Journal of Middle East Studies

Volumn 29, Issue 2, 1997, Pages 185-204

  Fadel, Mohammad ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 5944219706     PISSN: 00207438     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0020743800064461     Document Type: Article

References (72)

1. See, for example, Leila Ahmed, Women and Gender in Islam (New Haven: Yale University Press, 1992), 65-66; Amina Wadud-Muhsin, Quran and Woman (Kuala Lumpur: Penerbit Fajar Bakti Sdn. Bhd., 1994); Fatima Mernissi, The Veil and the Male Elite (New York: Addison-Wesley, 1987), 75, 126; Ghada Talhami, "The Human Rights of Women in Islam," Journal of Social Philosophy 16 (Winter 1985): 1-7.
2. See, for example, Leila Ahmed, Women and Gender in Islam (New Haven: Yale University Press, 1992), 65-66; Amina Wadud-Muhsin, Quran and Woman (Kuala Lumpur: Penerbit Fajar Bakti Sdn. Bhd., 1994); Fatima Mernissi, The Veil and the Male Elite (New York: Addison-Wesley, 1987), 75, 126; Ghada Talhami, "The Human Rights of Women in Islam," Journal of Social Philosophy 16 (Winter 1985): 1-7.
3. See, for example, Leila Ahmed, Women and Gender in Islam (New Haven: Yale University Press, 1992), 65-66; Amina Wadud-Muhsin, Quran and Woman (Kuala Lumpur: Penerbit Fajar Bakti Sdn. Bhd., 1994); Fatima Mernissi, The Veil and the Male Elite (New York: Addison-Wesley, 1987), 75, 126; Ghada Talhami, "The Human Rights of Women in Islam," Journal of Social Philosophy 16 (Winter 1985): 1-7.
4. See, for example, Leila Ahmed, Women and Gender in Islam (New Haven: Yale University Press, 1992), 65-66; Amina Wadud-Muhsin, Quran and Woman (Kuala Lumpur: Penerbit Fajar Bakti Sdn. Bhd., 1994); Fatima Mernissi, The Veil and the Male Elite (New York: Addison-Wesley, 1987), 75, 126; Ghada Talhami, "The Human Rights of Women in Islam," Journal of Social Philosophy 16 (Winter 1985): 1-7.
5. Ahmed, Women and Gender, 66-67. She also argues, however, that the gender-neutral message of Islam mitigated the misogynistic practices that prevailed in Near Eastern societies.
6. Wadud-Muhsin, Quran, 1-2.
7. What Mernissi means by empirical is that the task of a religious scholar was to collect positive facts, whether these were in the form of sayings attributed to the Prophet or his companions or the opinions of other scholars. According to Mernissi, religious scholarship did not attempt to "transcend" these facts by extracting from them general universal rules that could serve as a check against both arbitrary, subjective interpretation and errors in the facts themselves; Mernissi, The Veil, 128.
8. Ibid., 75, 77.
9. ⊃ ān did not arise - perhaps because the concept of gendered man did not arise" (Wadud-Muhsin, Quran, v).
10. Mernissi, The Veil, 127.
11. ⊃ān, in which he sought to gather every opinion expressed by a recognized scholar.
12. ⊂ li-ah + (Combining dot below sign)kām, 5:169.
13. ⊂ li-ah + (Combining dot below sign)kām, 5:169.
14. ⊂ li-ah + (Combining dot below sign)kām, 5:169.
15. ⊂ li-ah + (Combining dot below sign)kām, 5:169.
16. ⊂ li-ah + (Combining dot below sign)kām, 5:169.
17. ⊂rifa, n.d.), 3:124-25.
18. Wadud-Muhsin, Quran, 85-86.
19. For a very insightful discussion of the relationship of judicial legitimacy to the actual rules of procedure used by courts, see Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: University of Chicago Press, 1981), 2-3.
20. ⊂Ālam al-Kutub, n.d.), 1:6-7. Also, see Mohammad Fadel, "Adjudication in the Mālikī Madhhab: A Study of Legal Process in Medieval Islamic Law" (Ph.D. diss., University of Chicago, 1995), 127-36.
21. ⊂Ālam al-Kutub, n.d.), 1:6-7. Also, see Mohammad Fadel, "Adjudication in the Mālikī Madhhab: A Study of Legal Process in Medieval Islamic Law" (Ph.D. diss., University of Chicago, 1995), 127-36.
22. ⊂Ālam al-Kutub, n.d.), 1:6-7. Also, see Mohammad Fadel, "Adjudication in the Mālikī Madhhab: A Study of Legal Process in Medieval Islamic Law" (Ph.D. diss., University of Chicago, 1995), 127-36.
23. Al-Qarāfī, al-Furūq, 1:4-5.
24. ⊂ārif, 1986), 2:438-39. Similarly, the gender of the litigants was not an issue in deterring which party to a lawsuit had the right to take the oath and whether that oath would be effective in winning the claim.
25. Al-Qarāfī, al-Furūq, 1:6-7.
26. ⊂rifa, 1406/1986], 1:42).
27. Ahmed, Women and Gender, 74.
28. ⊂Abd al-Rah + (Combining dot below sign)mān al-Wakīl (Cairo: Dār al-Kutub al-H + (Combining dot below sign)adītha, 1969), 1:12-15.
29. ⊂alā al-s + (Combining dot below sign)ah + (Combining dot below sign)āba, wherein she challenged the accuracy of the opinions of her male colleagues.
30. ⊃ isha bint Abī Bakr (New York: Columbia University Press, 1994).
31. For details of women's participation in the science of hadith, see Muhammad Zubayr Siddiqi, Hadīth Literature: Its Origin, Development, and Special Features (Cambridge: Islamic Texts Society, 1993), 117-23.
32. Jonathan Berkey, The Transmission of Knowledge in Medieval Cairo (Princeton, N.J.: Princeton University Press, 1992), 190.
33. ⊂, 12 vols. (Beirut: Dār Maktabat al-H + (Combining dot below sign)ayāt, 1966), 12:91.
34. ⊂, 12 vols. (Beirut: Dār Maktabat al-H + (Combining dot below sign)ayāt, 1966), 12:91.
35. ⊂, 12 vols. (Beirut: Dār Maktabat al-H + (Combining dot below sign)ayāt, 1966), 12:91.
36. ⊃isha bint Ali, 12:78-79. It should be added that Sakhāwī's information can hardly be considered conclusive or complete. For example, in his biography of Umm al-Hasan (see n. 24) he failed to mention that she had transmitted works of positive law and legal methodology. Ibn Hajar also described some of the women in his work as having both studied the law and understood it well. See Ibn H + (Combining dot below sign)ajar, Al-Durar, 3:307-8, 5:167-68.
37. ⊃isha bint Ali, 12:78-79. It should be added that Sakhāwī's information can hardly be considered conclusive or complete. For example, in his biography of Umm al-Hasan (see n. 24) he failed to mention that she had transmitted works of positive law and legal methodology. Ibn Hajar also described some of the women in his work as having both studied the law and understood it well. See Ibn H + (Combining dot below sign)ajar, Al-Durar, 3:307-8, 5:167-68.
38. ⊂Ālam al-Kutub, n.d.), 1:6-7
39. ⊂Ālam al-Kutub, n.d.), 1:6-7
40. ⊂īn al-h + (Combining dot below sign)ukkām fī mā yataraddadu bayn al-khas + (Combining dot below sign)mayn min al-ah + (Combining dot below sign)kām [Cairo: Mus + (Combining dot below sign)t + (Combining dot below sign)afā al-Bābī al-H + (Combining dot below sign)alabī, 1393/1973], 91-92).
41. ⊂īn al-h + (Combining dot below sign)ukkām, 91-92.
42. Muh + (Combining dot below sign)ammad ibn Yūsuf al-Abdārī al-Mawwāq, al-Tāj wa al-iklīl, on the margin of Mawāhib al-jalīl, 6 vols. (Beirut: Dār al-Fikr, 1412/1992), 6:182.
43. ⊂ihi al-ittifāqī, Ibn al-Shat + (Combining dot below sign)t + (Combining dot below sign), Tahdhīb al-furūq, 1:6).
44. The public's interest in maintaining the integrity of marriages is reflected in the fact that individuals have a responsibility to report to judges men who have divorced their wives but continue cohabiting with them, even when their wives are unwilling to file for divorce. Financial claims, on the other hand, can be entered only by the aggrieved party himself.
45. ⊂īn al-h + (Combining dot below sign)ukkām, 87. Malikis, however, do not admit a woman's statement in this case even though they agree with the Hanafis that this is an instance of narration and not testimony. In this case, the Maliki rule contradicts the basic logic that distinguishes between narration and testimony.
46. ⊂rid + (Combining dot below sign) lahum min nawāzil al-ah + (Combining dot below sign)kām, Cairo, Arab League Manuscript Institute, Fiqh Mālikī, no. 35, 54a).
47. ⊂a, 1406/1986), 2:82.
48. Berkey, Transmission of Knowledge, 180-81.
49. ⊂rab (Beirut: Dar̄ al-Gharb al-Islāmī, 1988), 2:258. Likewise, al-Hattab reported that Ibn al-Qasim is also said to have considered the appointment of women to the bench to be permissible, although later Malikis were unsure whether he held the same opinion on this issue as al-Tabari and al-Shaybani, or agreed with the majority of the Hanafi school, who would restrict women to those cases where their testimony was admissible (Al-Hattab, Mawāhib al-jalīl, 6:87-88).
50. ⊂rab (Beirut: Dar̄ al-Gharb al-Islāmī, 1988), 2:258. Likewise, al-Hattab reported that Ibn al-Qasim is also said to have considered the appointment of women to the bench to be permissible, although later Malikis were unsure whether he held the same opinion on this issue as al-Tabari and al-Shaybani, or agreed with the majority of the Hanafi school, who would restrict women to those cases where their testimony was admissible (Al-Hattab, Mawāhib al-jalīl, 6:87-88).
51. ⊂rab (Beirut: Dar̄ al-Gharb al-Islāmī, 1988), 2:258. Likewise, al-Hattab reported that Ibn al-Qasim is also said to have considered the appointment of women to the bench to be permissible, although later Malikis were unsure whether he held the same opinion on this issue as al-Tabari and al-Shaybani, or agreed with the majority of the Hanafi school, who would restrict women to those cases where their testimony was admissible (Al-Hattab, Mawāhib al-jalīl, 6:87-88).
52. ⊂rab (Beirut: Dar̄ al-Gharb al-Islāmī, 1988), 2:258. Likewise, al-Hattab reported that Ibn al-Qasim is also said to have considered the appointment of women to the bench to be permissible, although later Malikis were unsure whether he held the same opinion on this issue as al-Tabari and al-Shaybani, or agreed with the majority of the Hanafi school, who would restrict women to those cases where their testimony was admissible (Al-Hattab, Mawāhib al-jalīl, 6:87-88).
53. ⊂rab (Beirut: Dar̄ al-Gharb al-Islāmī, 1988), 2:258. Likewise, al-Hattab reported that Ibn al-Qasim is also said to have considered the appointment of women to the bench to be permissible, although later Malikis were unsure whether he held the same opinion on this issue as al-Tabari and al-Shaybani, or agreed with the majority of the Hanafi school, who would restrict women to those cases where their testimony was admissible (Al-Hattab, Mawāhib al-jalīl, 6:87-88).
54. ⊂rab (Beirut: Dar̄ al-Gharb al-Islāmī, 1988), 2:258. Likewise, al-Hattab reported that Ibn al-Qasim is also said to have considered the appointment of women to the bench to be permissible, although later Malikis were unsure whether he held the same opinion on this issue as al-Tabari and al-Shaybani, or agreed with the majority of the Hanafi school, who would restrict women to those cases where their testimony was admissible (Al-Hattab, Mawāhib al-jalīl, 6:87-88).
55. ⊂Abd al-Wah + (Combining dot below sign)īd Ibn al-Humām, Sharh + (Combining dot below sign) fath + (Combining dot below sign) al-qadīr, 10 vols. [Cairo: Mus + (Combining dot below sign)t + (Combining dot below sign)afā al-Bābi al-H + (Combining dot below sign)alabī, 1970], 2:55).
56. ⊂Abd al-Wah + (Combining dot below sign)īd Ibn al-Humām, Sharh + (Combining dot below sign) fath + (Combining dot below sign) al-qadīr, 10 vols. [Cairo: Mus + (Combining dot below sign)t + (Combining dot below sign)afā al-Bābi al-H + (Combining dot below sign)alabī, 1970], 2:55).
57. ⊂Abd al-Wah + (Combining dot below sign)īd Ibn al-Humām, Sharh + (Combining dot below sign) fath + (Combining dot below sign) al-qadīr, 10 vols. [Cairo: Mus + (Combining dot below sign)t + (Combining dot below sign)afā al-Bābi al-H + (Combining dot below sign)alabī, 1970], 2:55).
58. ⊂Ilmiyya, 1994), 16:156.
59. ⊂an al-tuham jiddan). Al-Qarāfī, al-Furūq, 1:16.
60. ⊂at al-Madanī, 1977), 245. Others defended the exclusion of slaves' testimony by arguing that testimony is a type of political jurisdiction (wilāya) and, therefore, any witness must by definition be free. Ibn al-Qayyim described this argument as being particularly weak (Ibn al-Qayyim, al-T + (Combining dot below sign)uruq, 248).
61. ⊂at al-Madanī, 1977), 245. Others defended the exclusion of slaves' testimony by arguing that testimony is a type of political jurisdiction (wilāya) and, therefore, any witness must by definition be free. Ibn al-Qayyim described this argument as being particularly weak (Ibn al-Qayyim, al-T + (Combining dot below sign)uruq, 248).
62. ⊂d [Beirut: Dār al-Jīl, n.d.], 1:95).
63. ⊃a wa h + (Combining dot below sign)afiz + (Combining dot below sign)at wa kānat mimman yūthaq bi-dīnihā fa-inna al-maqs + (Combining dot below sign)ūd h + (Combining dot below sign)ās + (Combining dot below sign)il bi-khabarihā ka-mā yah + (Combining dot below sign)s + (Combining dot below sign)ul bi-akhbār al-diyānāt (ibid.).
64. ⊂īn, ed. T + (Combining dot below sign)āhā, 95).
65. ⊂īn, ed. T + (Combining dot below sign)āhā, 95).
66. ⊂ li-ah + (Combining dot below sign)kām, 3:392. Ibn Taymiyya also made the remarkable claim that a verdict based upon the testimony of single woman along with the oath of the claimant would be valid: wa law qīl yuh + (Combining dot below sign)kam bishahādat
67. ⊂adhdhar ghāliban h + (Combining dot below sign)ud + (Combining dot below sign)ūruhunna majālis al-h + (Combining dot below sign)ukkām wa h + (Combining dot below sign)ifz + (Combining dot below sign)uhunna wa d + (Combining dot below sign)abt + (Combining dot below sign)uhunna dūna h + (Combining dot below sign)ifz + (Combining dot below sign) al-rijāl wa d + (Combining dot below sign)abt + (Combining dot below sign)ihim (Ibn al-Qayyim, al-T + (Combining dot below sign)urūq, 219).
68. ⊂Asqalānī, al-Is + (Combining dot below sign)āba fi tamyīz al-s + (Combining dot below sign)ah + (Combining dot below sign)āba, 13 vols., ed. T + (Combining dot below sign)āhā Muh + (Combining dot below sign)ammad al-Zayni (Cairo: Maktabat al-Kulliyyāt al-Azhariyya, 1297/1917), 12:241-42.
69. ⊂Atiyya Nusayba bint al-Harith was also an Ansari companion of the Prophet. Several of her hadiths have been included in the works of al-Bukhari and Muslim: ibid., 13:253-54.
70. ⊂at + (Combining dot below sign)iyya aqwā min al-z + (Combining dot below sign)ann al-mustafād min rajul wāh + (Combining dot below sign)id dūnahumā wa dūna amthālihimā (ibid., 236).
71. ⊃, 1404/1984), 195-96.
72. Ahmed, Women and Gender, 65-66.