Author's note: Earlier versions of this paper were presented at the University of Virginia, the University of Texas, and the University of Washington, Seattle. I thank all those who attended those presentations for their valuable comments and criticisms. I also thank Professors Wenchin Ouyang, Sherman Jackson, Wael Hallaq, and David Powers for kindly agreeing to read drafts of this manuscript at various stages of its completion.
1 See, for example, Ahmed, Leila, Women and Gender in Islam (New Haven: Yale University Press, 1992), 65–66;Wadud-Muhsin, Amina, Quran and Woman (Kuala Lumpur: Penerbit Fajar Bakti Sdn. Bhd., 1994);Mernissi, Fatima, The Veil and the Male Elite (New York: Addison-Wesley, 1987), 75, 126;Talhami, Ghada, “The Human Rights of Women in Islam,” Journal of Social Philosophy 16 (Winter 1985): 1–7.
2 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.
3 Wadud-Muhsin, , Quran, 1–2.
4 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.
6 Wadud-Muhsin implies this when she notes in her preface that “the question of the concept of woman in the Qurʾān did not arise—perhaps because the concept of gendered man did not arise” (Wadud-Muhsin, , Quran, v).
7 Mernissi, , The Veil, 127.
8 This is doubly true in the case of exegesis, where her main source was Muḥammad ibn Jarīr al-Ṭabarī's encyclopedic work Jāmiʿ al-bayān fī taʾwīl āy al-qurʾān, in which he sought to gather every opinion expressed by a recognized scholar.
9 al-Rāzī, Fakhr al-Dīn, al-Tafsīr al-kabīr, 32 vols. (Cairo: Al-Maṭbaʿa al-Bahāʿiyya al-Miṣriyya, 1357/1938), 7:122;Quṭb, Sayyid, Fī ẓilāl al-qurʾān, 6 vols. (Cairo: Dār al-Shurūq, n.d.), 1:336. It is worth noting, moreover, that both Qutb and al-Razi rely on sciences external to the discourse of revelation—the former, psychology, and the latter, Aristotelian biology—to interpret the verse and reach their conclusion that women were inherently less veracious than men. Al-Qurtubi does not give an explanation of why a woman's testimony is worth half of a man's, although he accepts that as the meaning of the verse. See al-Qurṭubī, Muḥammad ibn Aḥmad, al-Jāmiʿ li-aḥkām al-qurʾān, ed. al-Bardūnī, Aḥmad ʿAbd al-ʿAlīm, 20 vols. (Cairo: Dār al-kātib al-ʿarabī, 1387'1967), 3:389–98. It is possible that his belief that women are intellectually inferior is such an obvious fact that he does not even need to mention it explicitly. See his explanation of the sentence “al-rijāl qawwāmūn ʿalā al-nisāʾ”; in al-Nisāʾ, 4:34, where he explains that the husband's right to discipline his wife, command her obedience, manage her affairs, prevent her from leaving her home, and so on, all based solely on his discretion, is at least partially a consequence of his possession of ʿaql: Al-Qurṭubī, , al-Jāmīʿ li-aḥkām, 5:169.
10 ʿAbduh's commentary on the Qurʾan is known to us principally through the work of his student and disciple Rashid Rida, who published his teacher's views in Tafsīr al-manār. Riḍā, Rashīd, Tafsīr al-manār, 12 vols. (Beirut: Dār al-Maʿrifa, n.d.), 3:124–25.
11 Wadud-Muhsin, , Quran, 85–86.
12 For a very insightful discussion of the relationship of judicial legitimacy to the actual rules of procedure used by courts, see Shapiro, Martin, Courts: A Comparative and Political Analysis (Chicago: University of Chicago Press, 1981), 2–3.
13 For more information regarding the manner in which law regulated statements of legal significance, see al-Subkī, Taj al-Dīn ʿAbd al-Wahhāb ibn ʿAlī, al-Ashbāh wa-l-naẓāʾir, 2 vols., ed. al-Mawjūd, ʿādil Aḥmad ʿAbd and ʿAwad, ʿAlī Muḥammad (Beirut: Dār al-Kutub al-ʿIlmiyya, 1991), 2:162; al-Qarāfī, Shihāb al-Dīn, al-Furūq, 4 vols. (Beirut: ʿālam al-Kutub, n.d.), 1:6–7. Also, see Fadel, Mohammad, “Adjudication in the Mālikī Madhhab: A Study of Legal Process in Medieval Islamic Law” (Ph.D. diss., University of Chicago, 1995), 127–36.
14 Al-Qarāfī, , al-Furūq, 1:4–5.
15 Thus, in disputes between a husband and a wife, each party's claim is evaluated solely as a function of its inherent plausibility or lack thereof. In the Maliki school, for example, the wife will be taken on her word that her marriage was consummated based simply on the evidence of the couple's having had an opportunity to consummate the marriage, even if the husband denies the occurrence of intercourse. See al-Dardīr, Aḥmad, al-Sharḥ al-ṣaghīr, 4 vols., ed. Waṣfī, Kamāl (Cairo: Dār al-Maāārif, 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.
16 Al-Qarāfi, , al-Furūq, 1:6–7.
17 Lā yushtaraṭ fi al-muftī al-ḥurriyya wa al-dhukūriyya ka-mā fī al-rāwī … li-anna al-muftī fī ḥukm man yukhbir ʿan al-sharʿ bi-mā lā ikhtiṣāṣ lahu bi-shakhṣ wa kāna fī dhālika ka-l-rāwī lā ka-l-shāhid wa fatwāhu la yartabiṭ bihi ilzām bi-khilāf al-qāḍi (al-Ṣalāḥ, Abū ʿAmr ʿAbd al-Raḥmān Ibn, Fatāwā wa masāʾil Ibn al-Ṣalāḥ, 2 vols., ed. Qalʿajī, ʿAbd al-Muʿṭī Amīn [Beirut: Dār al-Maʿrifa, 1406/1986], 1:42).
18 Ahmed, , Women and Gender, 74.
19 Ibn Qayyim al-Jawziyya, while mentioning which companions of the Prophet also served as muftis, records the names of several women. See al-Jawziyya, Ibn Qayyim, Iʿlāmal-muwaqqīʿīn ʿan rabb al-ʿālamīn, 4 vols., ed. al-Wakīl, ʿAbd al-Raḥmān (Cairo: Dār al-Kutub al-Ḥadītha, 1969), 1:12–15.
20 For example, the 14th-century jurist al-Zarkashi wrote a book that gathered ʿAʾisha's legal opinions, al-Iṣāba fimā istadrakalhu ʿāʾisḥāa ʿalā al-ṣaḥaba, wherein she challenged the accuracy of the opinions of her male colleagues.
21 For more on the controversial nature of ʿAʾisha bint Abi Bakr, see Spellberg, D. A., Politics, Gender, and the Islamic Past, the Legacy of ʿāʾisha bint Abī Bakr (New York: Columbia University Press, 1994).
22 For details of women's participation in the science of hadith, see Siddiqi, Muhammad Zubayr, Ḥadith Literature: Its Origin, Development, and Special Features (Cambridge: Islamic Texts Society, 1993), 117–23.
23 Berkey, Jonathan, The Transmission of Knowledge in Medieval Cairo (Princeton, N.J.: Princeton University Press, 1992), 190.
24 al-Ḥaṭṭāb, Muḥammad ibn Muḥammad, Mawāhib al-jalīl, 6 vols. (Beirut: Dār al-Fikr, 1412/1992), 1:9. It should also be noted, however, that some of the works on hadith that al-Hattab mentions as having been transmitted through Zaynab dealt with the theoretical science of hadith and, therefore, involved more than the simple recollection of a text. For more information on this woman, see alʿAsqalānī, Ibn Ḥajar, Al-Durar al-kāmina fi aʿyān al-miʾa al-thāmina, 5 vols., ed. al-Ḥaqq, Muhammad Sayyid Jād (Cairo: Dār al-Kutub al-Ḥadītha, 1966), 2:209–10. For the biography of Umm al-Hasan, see al-Sakhāwī, Muḥammad ibn ʿAbd al-Raḥmān, Al-Ḍawʾ al-lāmiʿ li-ahl al-qarn al-tāsiʿ, 12 vols. (Beirut: Dār Maktabat al-Ḥayāt, 1966), 12:91.
25 The twelfth volume of al-Sakhāwī's Ḍawʾ focuses exclusively on the prominent women of the 9th Islamic century. Some of these women whom he explicitly mentioned as having studied legal works include Sadaqa, Amat al-Khaliq bint ʿAbd al-Latif ibn, 12:9; Muhammad, Amat al-Qahir bint Qasim ibn, 12:10; al-Malikiyya, Bayram bint Ahmad ibn Muhammad, 12:15; al-Rahman, Khadija bint Abd, 12:28; and Ali, ʿAʾisha bint, 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 Ḥajar, Ibn, Al-Durar, 3:307–8, 5:167–68.
26 Al-Qarāfi, , al-Furūq, 1:6–7; Muhammad, Qasim ibn Abd Allah ibn, known as Ibn al-Shaṭṭ, Tahdhīb al-furūq on the margin of al-Furūq (Beirut: ʿĀlam al-Kutub, n.d.), 1:6–7
27 Wa ṣaḥīḥ qawlunā li-anna al-marʾa sāwat al-rajula fīmā yabtanī ʿalayhi ahliyyat al-shahāda wa huwa al-qudra ʿalā al-mushāhada wa al-ḍabṭ wa al-ḥifẓ wa al-adāʾ li-wujūd ālat al-qudra wa huwa alʿaql al-mumayyiz al-mudrik li-l-ashyāʾ wa al-lisān al-nāṭiq fa-tufīd shahādat al-nisāʾ ḥuṣūl ghalabat alẓann wa ṭumaʾninat al-qalb bi-ṣidq al-shuhūd bi-khilāf shahādat al-nisāʾ waḥdahunna lā tuqbal li-anna ghalabat al-ẓann taḥṣul bi-khabarihinna wa lākinna al-sharʿ lam yaʿtabirhā ḥujja li-annahunna manhiyyāt ʿan al-khurūj wa dhālika sabab al-fitna wa al-fasād wa sabab al-fasād yajib nafyuhu fa-rūʿiyat al-dhukūra fī aḥad al-sharṭayn ḥasman li-māddat al-fasād bi-l-qadr al-mumkin (al-Ṭarābulusī, ʿAlāʾ al-Dīn al-Ḥasan ibn ʿAlī ibn Khalīl ibn, Muʿīn al-ḥukkām fī mā yataraddadu bayn al-khāṣmayn min al-aḥkām [Cairo: Muṣṭafā al-Bābī al-Ḥalabī, 1393/1973], 91–92).
28 Hanafis, however, will admit women's testimony in all cases, with the exception of capital cases and crimes of blood vengeance: al-Ṭarābulusī, , Muʿīn al-ḥukkām, 91–92.
29 al-Mawwāq, Muḥammad ibn Yūsuf al-Abdārī, al-Tāj wa al-iklīl, on the margin of Mawāhib al-jalīl, 6 vols. (Beirut: Dār al-Fikr, 1412/1992), 6:182.
30 Ibn al-Shatt noted that “the law made the [testimony of a] woman like [that of a] man in cases where his presence is absolutely impossible and it made her [testimony] like his where his absence is simply coincidental with the stipulation of another [woman's] corroboration (inna al-sharʿ jaʿala al-marʾa kal-rajul fī maḥall taʿadhdhur iṭṭilaʿihi al-iṭlāqi wa jaʿalahā mithlahu bi-sharṭ al-istiẓhār bi-ukhrā fī maḥall taʿadhdhur iṭṭilāʿihi al-itifāqī, al-Shaṭṭ, Ibn, Tahdhīb al-furūq, 1:6).
31 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.
32 Al-Ṭarābulusī, , Muʿīn al-ḥukkām, 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.
33 Lam yakun fihim iʿdhār li-annahum lam yusDalū al-shahāda wa innamā al-qādī [istakhbarahum] fa-akhbarūhu wa al-iʿdhār innamā huwa ʿalā al-ẓunūn wa al-tuhma li-l-shuhūd wa bi-hādhā jarā al-ʿamal ʿinda al-shuyūkh (Hishām, Ibn, al-Mufīd li-l-ḥukkām fī mā yaʿriḍ lahum min nawāzil al-aḥkām, Cairo, Arab League Manuscript Institute, Fiqh Mālikī, no. 35, 54a).
34 Farḥŭn, Burhān al-Dīn Ibrāhīm ibn ʿAlī ibn Muḥammad ibn, Tabṣirat al-ḥukkām fī uṣūŭl al-aqḍiya wa manāhij al-aḥkām, 2 vols. (Cairo: al-Qāhira al-Ḥadītha li-l-Ṭibāʿa, 1406/1986), 2:82.
35 Berkey, , Transmission of Knowledge, 180–81.
36 Tyan, Emile, Histoire de l'organisation judiciaire en pays d'Islam, 2nd ed. (Leiden: E. J. Brill, 1960), 163. Although the Hanafis were the only Sunni school to allow women to be judges, several prominent individual jurists also permitted it. Among them were the celebrated Muhammad ibn Jarir al-Tabari. Muhammad ibn al-Hasan al-Shaybani who, although a disciple of Abu Hanifa, agreed with al-Tabari in permitting women to be judges in all areas of the law, unlike the rest of Abu Hanifa's followers, who restricted women's judicial competence to cases that admitted their testimony. See al-Bājī, Abŭ al-Walīd Sulaymān ibn Khalaf, al-Muntaqā, 7 vols. (Cairo: Dār al-Fikr al-ʿArabī), 5:182; Rushd, Abŭ al-Walīd Muḥammad ibn Aḥmad Ibn (Averroes), Bidāyat al-mujtahid, 2 vols. (Beirut: Dār al-Fikr, n.d.), 2:344;Qudāma, Muwaffaq al-Din ʿAbd Allāh ibn Aḥmad Ibn, al-Mughni, 14 vols., ed. al-Ḥulw, ʿAbd al-Fattāḥ Muḥammad and al-Turkī, ʿAbd Allah ʿAbd al-Munʿim (Cairo: Dār Hajr, 1986), 14:12;Rushd, Abŭ al-Walīd Muḥammad ibn Aḥmad Ibn (the Grandfather), Kitāb al-muqaddimāt, 3 vols., ed. Aʿrab, Saʿīd Aḥmad (Beirut: Dār 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).
37 The gist of the Hanafi argument was that witnesses are similar to judges in that both exercise power over the litigants. Because a woman when testifying against a litigant exercises power over that litigant, there is no reason to believe she cannot exercise power over that same litigant in the capacity of a judge. See Tyan, , Histoire, 162. For more on the analogy between judges and witnesses in Islamic law, see Fadel, , “Adjudication,”; 76–77. In general, it seems that the Hanafi madhhab was the most liberal of the Sunni schools of law regarding the question of the legitimacy of women's political power. See, for example, Ibn al-Humam, who notes that “when a woman is ruler, her command establishing the Friday prayer is valid, although her actual leading of it is not”; (wa al-marʾa idhā kānat sulṭāna yajŭz amruhā bi-l-iqāma lā iqāmatuha). al-Humām, Muḥammad ibn ʿAbd al-Waḥīd Ibn, Sharḥ fatḥ al-qadīr, 10 vols. [Cairo: Muṣṭafā al-Bābī al-Halabī, 1970], 2:55).
38 al-Māwardī, Abŭ al-Ḥasan ʿAlī ibn Muḥammad ibn Ḥabīb, Al-Ḥāwī al-kabīr, 19 vols., ed. Muʿawwaḍ, ʿAlī Muḥammad and al-Mawjŭd, ʿādil Aḥmad ʿābd (Beirut: Dār al-Kutub al-ʿIlmiyya, 1994), 16:156.
39 For this reason, al-Qarafi notes that if a slave were to transmit a hadith whose meaning would require that he be granted his freedom, he would nevertheless still be believed despite the fact that he has a particular interest in the truth of his report because “narration is far removed from suspicion”; (bāb al-riwāya baʿid ʿan al-tuham jiddan). Al-Qarāfi, , al-Furŭq, 1:16.
40 al-Jawziyya, Ibn Qayyim, al-Ṭuruq al-ḥukmiyya, ed. Ghāzī, Muḥammad Jamīl (Cairo: Maṭbaʿat 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 (al-Qayyim, Ibn, al-Ṭuruq, 248).
41 Al-maqṣŭd bi-1-shahāda an yuʿlama bihā thubŭt al-mashhŭd bihi wa annahu ḥaqq wa ṣidq fa-innahā khabar ʿanhu wa hādhā lā yakhtalif bi-kawn al-mashhŭd bihi mālan aw ṭalāqan aw ʿitqan aw waṣiyya bal man ṣuddiqa fī hādhā ṣuddiqa fī hādhā (al-Jawziyya, Ibn Qayyim, Iʿlām al-muwaqqiʿīn bi-rabb al-ʿālamīn, 3 vols., ed. Saʿd, Ṭāhā ʿAbd al-Raʾŭf [Beirut: Dār al-Jīl, n.d.], 1:95).
42 Wa lā rayba anna hādhihi al-ḥikma fī al-taʿaddud hiya fī al-taḥammul fa-ammā idhā ʿaqalat al-marʾa wa ḥafiẓat wa kānat mimman yŭthaq bi-dīnihā fa-inna al-maqṣŭd ḥāṣil bi-khabarihā ka-mā yaḥṣul bi-akhbār al-diyānāt (ibid.).
43 Layalzam min al-amr bi-istishhād al-marʿatayn waqt al-taḥammul aliā yuḥkama bi-aqalla minhumā … fa-l-ṭuruq allatī yaḥkum bihā al-ḥākim awsaʿ min al-ṭuruq allatī arshada allāhu ṣāḥib al-ḥaqq ilā an yaḥfaẓa ḥaqqahu bihā (ibid., 95–96). Al-Qurtubi made, a similar argument in arguing for the legitimacy of a judge's verdict based on the testimony of one witness and the oath of the claimant: Al-Qurṭubī, , al-Jāmiʿ li-aḥkām, 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 yuḥkam bishahādat imraʾa wa yamīn al-ṭālib la-kāna mutawajjihan (al-Qayyim, Ibn, Iʿlām al-muwaqqiʿīn, ed. Ṭāhā, , 95).
44 Fa-inna shahādat al-rajul al-wāḥid aqwā min shahādat al-marʿatayn li-anna al-nisāʾ yataʿadhdhar ghāliban ḥuḍŭruhunna majālis al-ḥukkām wa ḥifẓuhunna wa ḍabṭuhunna dŭna ḥifẓ al-rijāl wa ḍabṭihim (al-Qayyim, Ibn, al-Ṭurŭq, 219).
45 Umm al-Dardaʾ Khayra bint Abi Hadrad. She was a famous Ansari companion of the Prophet. She died in Syria during the caliphate of ʿUthman ibn ʿAffan. Ibn ʿAbd al-Barr described her as being virtuous, intelligent, and possessing good judgment, in addition to having great piety. A large group of successors transmitted different hadiths on her authority. See al-ʿAsqalānī, Ibn Hajar, al-Iṣāba fī tamyīz al-ṣaḥāba, 13 vols., ed. al-Zaynī, Ṭāhā Muḥammad (Cairo: Maktabat al-Kulliyyāt al-Azhariyya, 1297/1917), 12:241–42.
46 Umm ʿAtiyya 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.
47 Wa lā rayba anna al-ẓann al-mustafād min shahādat mithl umm al-dardāʿ wa umm ʿaṭiyya aqwā min al-ẓann al-mustafād min rajul wāḥid dŭnahumā wa dŭna amthālihimā (ibid., 236).
48 This conclusion is also consistent with the sense of the root ʿa-qa-la in classical Arabic and in the usage of the term ʿaql by the jurists and the scholars of hadith. Thus, Ridwan al-Sayyid argues that in “the opinion of the scholars of hadith and the jurists, the [intellectual] inequality among people is not a result of [differences in] instinctive reason, but rather [a result] of their judgment or practical reason. Reason develops in an individual just as his body develops, just as his other instincts develop. It is the experiences of the environment or the surroundings which produce the [capacity for] practical reason (i.e., judgment), wherein people are unequal.”; He also quotes al-Mawardi as saying that “everything needs reason, but reason is in need of experience.”; See al-Sayyid, Riḍwān, al-Umma wa al-sulṭa wa al-jamāʿa (Beirut: Dār Iqraʾ, 1404/1984), 195–96.
49 Ahmed, , Women and Gender, 65–66.