Justifying Gender Inequality in the Shafi'i Law School: Two Case Studies of Muslim Legal Reasoning

Article excerpt

hatu burhanakum in kuntum sadiqin

"Bring forth your proof if you are truthful." (1)

The topic of "women and Islam" is highly contentious in both popular and academic literature. While this broad topic often addresses the status of Muslim women in their diverse cultures, the focal points of investigation frequently tend to be of a legal nature, such as dress code, marriage and divorce rights, or women leading mixed congregations in communal prayer. Yet even when the sphere of inquiry is limited to specific topics of Islamic law, scholars must engage an immense library that can be bifurcated into normative and effectual texts. The former category comprises textbooks and their commentaries (fiqh books proper), books on legal theory (usul al-fiqh), and collections of fatwas (responsa); the latter one consists of court registers (sijillat) and state-promulgated laws (qanun). (2)

The preliminary methodological question facing all scholars who wish to enter the vibrant field of gender in Islamic law is the selection of sources. Many, if not most contemporary studies on this topic analyze books on legal theory, (3) fatwa collections, (4) or court records. (5) Several studies that address gender discrimination on legal topics actually bypass the legal literature altogether and limit their inquiry to texts that most Muslims consider to be divinely inspired, namely, the Qur'an and prophetic hadiths. (6) Those individuals who do engage the legal textbooks and encyclopedias tend to favor works from the formative period of Islam (750-900 C.E.) rather than the school textbooks of the classical and postclassical periods. (7)

Most of the methodological ambiguity is found on the side of the normative texts of Islamic law rather than the effectual works that reveal how Islamic law has been and continues to be practiced on the ground. (8) If one wishes to study the practice of Islamic law in Indonesia or Pakistan or Ottoman lands, there are clear (if not always accessible) documentary sources that can be analyzed. However, when scholars apply their critical eyes to the vast normative legal literature, their method of text selection is not always transparent. While it is certainly possible that the books previous scholars have picked are, in fact, excellent choices, there still needs to be a more rigorous means of determining which books most reliably represent the principles and positions of normative Islamic law in a specific school (madhhab).

The goal of this article is to provide a clear method for extracting the predominant positions within a single legal school and, more importantly, identifying the evidence and reasoning that jurist-authors have used over the centuries to justify them. The primary means by which legal schools maintained their authority throughout the Muslim world over the past millennium was through dedicated teachers who taught and wrote textbooks or commentaries on these works. (9) Some teachers specialized in encyclopedic works that recorded and endeavored to refute positions of rival schools or scholars, while others set a school's teachings to meter and rhyme in order to facilitate the memorization of positive law. Works of legal theory and fatwa collections, while important, represent more specialized and advanced branches of normative legal literature than the school textbooks and, in most cases, would have been studied only after the aspiring jurist had been immersed for years in his school's textbook tradition. (10) Therefore, it behooves us to study the formative curricular education of a jurist prior to our investigation of the more sophisticated works on legal theory and fatwa collections.

Before I advance my methodology and show its results, there remains a significant potential objection that could undermine this entire endeavor. I am investigating books, which, by their silent nature, tell only part of the story. All of these textbooks have been, and, in some circles, continue to be, taught by learned teachers who freely adjust their contents in their classes. …