Global Intifada

This past weekend, I had the opportunity to attend the “Islamic Law and the West” conference which was held at American University College of Law located in Washington D.C. Many notable speakers, such as Mohammed Fadel and Dr. Umar Abadallah, attended the conference (you can view the webcasts here).

Overall, the speeches were good and gave a very basic overview of Islamic jurisprudence and contemporary issues pertaining to that subject. However, one of the speeches that I found most problematic was the topic on “Islam and Gender Politics“. One of the speakers was a non-Muslim, another speaker was Muslim culturally, but not “theologically” or “mythologically”, and a third speaker conceded that she was not an Islamic scholar. Yet, each one of the speakers felt somewhat entitled to critique some aspect of Islamic jurisprudence with regards to its treatment of women.

As is usually the case with such endeavors, those individuals who are not knowledgeable in the Islamic sciences begin their critique of Islamic jurisprudence with faulty premises that ultimately lead to faulty conclusions.

Generally speaking, each of the speakers argued that their was a distinction between Shari’ah and Fiqh and went on to describe how scholars from different eras and localities of Islamic history interpolated patriarchial interpretations of the sacred texts and such interpretations conflicted with the so-called “egalitarian” and “just” spirt of Islamic jurisprudence.

Such comments erroneously assume that contemporary post-modernist thinkers are immune from the same mistakes of previous generations. The argument that previous generations have, all along, been misinterpreting the sacred texts for hundreds of years all over the world can now be amended thanks to the analytical methodology developed by people who openly concede that they haven’t studied Islamic jurisprudence nor claim belief in the divinity of Islamic scripture is not only incoherent, unsubstantiated, but boils down to downright hubris.

Classical Islamic scholars dealt with the same issues that are being presented today: what is social justice? How does this affect our understanding of jurisprudence? Is justice interpreted by a positivist methodology or a utilitarian methodology? In other words, if Allah (subhana wa ta’ala) is infinitely just and the Qu’ran is the literal word of Allah (subhana wa ta’ala), then hiow do we interpret a direct command of Allah (subhana wa ta’ala) regarding puportedly “unjust” social rules such as inequal treatment of women with regards to inheritance or witnessing? If one is a legal positivist, then one takes the command literally and thus, accepts the perceived inequality. This position was the classical Ashari position which argued that the human intellect was absolutely incapable of knowing good/evil independent of divine revelation whereas the Maturidis believed that the human intellect could know good/evil so long as it was supplemented by divine revelation. This created a problem for later Ashari scholars who advocated the concept of Maqasid al Shariah. This theory posited that the Shari’ah was organized as a system of priorities that operated within the maximizing of interest and minimizing of harm for the human race. Obviously, they definition of ‘interest’ incorporated not only the concerns of this world, but also the akhirah.

Within all of the theological and legal diversity of Islam, however, the classical positions did not differ greatly. Thus, the argument proposed by modernists that Islam is not static or monolithic and incorporates differences of opinion necessitates infinite permutations of opinions is patently false according to the historical record. For example, the sunnis and the shi’as have probably the greatest amount of differences of opinion both in theology and jurisprudence, yet one area where they do not differ over is the obligatory nature of the hijab. They differ, as do all of the madhaib and fuqaha, on the exact nature and dimensions of the hijab, but not over the obligation itself. No matter how many female scholars get incorporated into the interpretative process, this ruling won’t change. One cannot change the very principles of usool al fiqh simply because the legal product isn’t in conformity with contemporary values. Even though the madhaib have incorporated public interest (maslaha) and ‘urf (local customs or traditions) into the legal process, they have never superseded the plain meaning of the texts. In other words, many of the issues that modernist-feminists claim “ijtehad” is required upon are issues where there is no ijtehad because they are of the types of texts that do not even go to the level of ijtehad in the interpretative process. Even if their were more female scholars, these opinions would not change, which is something that the historical record shows. There is no dearth of female Islamic scholars in our history. Some of the most brilliant scholars have been, in fact, female, from the early era even up until today. Interestingly enough, it wasn’t until the modern era where maddrassehs were replaced with public forms of education, that the number of female scholars seems to have dropped. However, none of these female scholars had radically deparated from the traditionalist paradigm. Aisha (radhi allahu anhu) was considered to be one of the earliest female jurists, and a scholar of hadeeth, and even though her fatwas occassionally clashed with other scholars of her era, she did not differ greatly from the traditionalist paradigm. Who today, would possibly charge Aisha (radhi allahu anhu) of submitting to patriarchy when she lead an army in battle? Hence, the modernist-feminist argument that the “true” Islam has been distorted through generations of mis-interpretation by scholars who operated from a patriarchical viewpoint, although true to some degree, doesn’t really mean that the Shari’ah will be re-interpreted to contemporary standards.

Another problem for feminism is its sense of priorities. Recently, many so-called feminists have been engaging in symbolic displays of “gender jihad” such as leading prayers or breaking down partitions in Masajid. Such displays of false bravado distort the true issues in our communities (namely the disparate treatment of women, the youth, and minorities). How does women leading prayers address the problems of domestic violence, stereotyping, and discrimination? It doesn’t. As stated above, the issues that Muslim feminists seem to be addressing (such as the hijab, niqab, inheritance, marriage rights, and leading prayers) are not up for debate according to Islamic jurisprudence since they are addressed in a definitive manner in Islamic law and these opinions have been upheld through out all legal paradigms throughout history by both men and women scholars. If the feminist argument is that their is ikhtilaaf over certain legal questions, then the historical record should show such ikhtilaaf. However, where the historical record is absent ikhtilaaf, this is a proof of the definitiveness of the legal conclusions. After all, if scholars from different periods and at different times who differed over many legal questions did not differ over particular questions, then this is conclusive proof that their is no alternative interpretation other than the classical position, especially when such opinions were upheld by female scholars. Issues regarding domestic violence, stereotyping, and discrimination, however, are not justified by the Islamic jurisprudence. Hijab, then, is not the problem with the Muslim Ummah, it is when Hijab is coerced or women are forced to adopt a particular mode of dress against their will and men are treated in a different manner. Yet, these types of decisions are not the valid products of Islamic jurisprudence, but a deviation from Islamic jurisprudence. In other words, Islamic law is not to blame, but its gross misapplication. Since interpreting the texts is not the problem, the way it is being applied is the problem, no amount of female scholars or women leading prayers will solve this problem.

The feminist argument that introducing female scholarship into the contemporary legal discourse is itself based upon certain assumptions: i.e. that women have innate psychological differences. Feminism is divided over the question whether the “feminine” is a social construct or an innate characteristic (i.e. women possesses distinct psychological characteristics from men). The problem with the second position and applying it to issues in Islamic law is that, as stated above, the historical record has shown that there have been a plethora of female Muslim scholars. If women have their own innate psychological properties which make them think different from men, then we would have seen these previous female scholars arriving to legal conclusions differently from men. Either there is a vast patriarchical conspiracy where men have stifled these opinions, or such different opinions never existed in the first place. The burden of proof for the former position is upon feminists. If they believe that Muslim societies were so dominated by men that they marginalized female scholars and didn’t allow their purportedly different opinions to pass through history is a very big claim. The historical record shows the exact opposite: it shows that their have been many female scholars who have written certain texts from the inception of Islam up until the modern era and their opinions have not changed radically.

Conversely, if feminists want to argue that the feminine is a social construct and is defined by particular social traditions, then the Shari’ah already has a methodology of incorporating such differences. If the feminine is a “social construct” then obviously, different societies will have different constructions of what being female entails. Thus, just like the feminists argue that Islamic law has infinite permutations, then Traditionalists should argue the “feminine” itself has infinite permutations and no one model of “the feminine” is dominating. Why should the modern 21st century Eurocentric understanding of “the feminine” take priority over different social constructions of “the feminine”? How does one weigh which construction of the female is superior? This goes back to the original question of how we define good/evil, justice, injustice, which goes back to the Traditionalist paradigm. If good/evil is defined by a legal positivist understanding of the text, then the Islamic construction of the feminine is, by its very nature, good and just. Furthermore, the utilitarian perspective taken up by the view of Maqasid al Shari’ah, will give rational explanations of why the Islamic construction of the feminine will be good and just.

Lastly, I would like to point out that the theory that gender is a social construct may possibly be incorporated into Islamic jurisprudence. After all, the Prophet (sallahu alayhi wa sallam) was reluctant to marry off people from the Makkah and Madinah since the women behaved differently. The agricultural society of Madinah was different from the cosmopolitan nature of Makkah and the women in both socieities were different. The Makkan women were more “uppity” whereas the Madinan women were more “submissive.” These differences were incorporated into his (sallahu alayhi wa sallam) ruling. Such differences may be incorporated into Islamic jurisprudence through principles such as Maslaha Mursala or ‘Urf. Thus, rather than forcibly transforming Islamic jurisprudence on faulty premises, perhaps feminists should focus on using the existing traditions to address their needs.

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