Woman Half-the-Man?: Crisis of Male Epistemology in Islamic Jurisprudence
Dr. Abdulaziz Sachedina
University of Virginia
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 demosntrate 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 anafites 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.
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Diambil dari
http://www.people.virginia.edu/~aas/article/article1.htm
posted by BACAAN ISLAM BERMUTU @ 12:11 AM
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