Gender Bias in Fiqh Rulings? Not Really
Posted: 1 Sha'ban 1433, 21 June 2012
Is it possible that Muslim scholars and jurists throughout the centuries past have been gravely mistaken as far as the laws regarding women are concerned? While not many will make such a blatant statement, yet we frequently find people who are willing to discount Shariah rulings pertaining to women with the argument that these laws were established by male scholars and thus are flawed due to the inability of men to comprehend a woman's situation. Numerous rulings relating to women that have been, for centuries, accepted as God-revealed commands are being denied and reinterpreted by people, often with nothing to guide them but whimsical appeals to common sense. Issues like a woman’s role in family and society, and hijab have long been under scrutiny. But now, even seemingly innocent matters like that of women being considered ritually impure and thus excused from prayer during their monthly cycles is often questioned by people who claim it either a male ploy to limit women’s spiritual advancement or a mistaken ruling stemming from cultural bias and a lack of understanding.
Regardless of the topic under dispute, the argument usually goes like this: Men have a minimal understanding of what it is like to be a woman so why should they be deemed authority to establish rulings on issues pertaining exclusively to her? How are they to decide when a woman can pray or not? How can they declare when a woman cannot enter the Masjid or where she should sit inside it? How can they decide what parts of a body a woman should cover?
We can see the problem with this simplistic and dismissive approach to Islamic law by asking a simple question: If this logic is valid, then why stop here? The same arguments, after all, can be raised with regards to any issue. Who are men to decide all the other things that make a person ritually impure? Who are they to decide what we read in prayer and how we pray? Indeed, who are they to say that the Qur’an is the unchanged word of Allah? This might seem like exaggerating the issue, but both attacks are aimed at the same people.
Everything we know about Islam, not just women issues, but issues universal to men and women--- and yes, in a way, even the text of the Qur’an itself -- have come to us through the same chains, the same sources, the same jurists and scholars. If the scholars proved to be biased and unreliable in some issues, who is to say the rest of the issues are safe?
The confusion about women issues stems from an ignorance regarding fiqh and how it evolved.
The vast majority of Islamic rulings are not declared explicitly in the Qur'an. The Qur’an wasn't revealed as line-by-line rule book on the do’s and don’ts of everyday life. The thousands of rulings that we need to guide our day to day life were derived from the Qur’an and Sunnah by the scholars. This does not mean that they are not divine rulings. Fiqh is not separate from the Qur’an or Hadith, it comes directly from the two.
This confusion about women issues stems from an ignorance regarding fiqh and how it evolved. It reveals a lack of understanding of the role of the Prophet, Sall-Allahu alayhi wa sallam in the scheme of the Shariah and consequent belittling of Hadith. It reflects an underestimation of the evolution and preservation of traditional Islamic knowledge and the integrity of the scholars. In other words the bold tendency to question Islamic injunctions betrays a serious illiteracy about the development of those injunctions.
This is not to say that scholars are free from error; they were indeed only human. But the Islamic scholarly tradition is rich. It did not allow for just anyone to come up with anything out of whim and establish that as God-given law and undeniable truth. Everything declared to be part of religious law had to have evidence supporting it. For even minor issues, like whether to put the knees down first when going for sajdah in prayer or the hands, scholars would bring up numerous proofs from the Qur’an and Hadith. Only then were their opinions categorized as reliable scholarly opinions. This was all done to ensure that we are as close as possible to the truth.
The unique and unprecedented science of Usul ul Fiqh (principles of jurisprudence) emerged for this very reason. It was formed to establish how rulings can be derived from religious sources and what makes a certain opinion stronger than another. Indeed, even a basic understanding of the mechanisms of development of Islamic law would show the ridiculousness of dismissing a unanimously accepted ruling as a "random man's opinion."
Another thing at play here is an underestimation of the women in the previous eras. The underlying assumption is that women in the eras before were ignorant and oppressed, and thus bought into whatever men told them God was telling them. Only now women have finally woken up, started thinking for themselves, and are fit to save themselves from the injustice of the past.
This is a result of reading histories of women from non-Muslim societies into Islamic history. The truth is, women from the early days of Islam were very learned regarding the teachings of Islam. The wives of the Prophet, Sall-Allahu alayhi wa sallam, after all lived with him and saw his every action. The female companions of the Prophet, Sall-Allahi alayhi wa sallam, also had direct access to him and never hesitated to ask questions when they needed. They never hesitated to right a wrong as we see can in numerous incidents. They, in turn, related what they learned to the next generations, both men and women. The rulings of menstruation, etc., are all based on narrations by these women themselves.
If men were being biased and unfair, these women would be the first to speak out. These women, especially the Ansari women, were known for being loud and bold, never hesitant to correct an error. And the men, too, were God-fearing and accepted the truth when shown it. The famous story of Umar (ra) declaring his intention to put a limit to the dowry and an old woman standing up in the masjid to question the validity of this proposal is a clear testament to this.
Men may have been the most prominent scholars but that does not mean women had no role in the scholarly tradition. Classical fiqh rulings come from interpretations of both men and women. It was after all, Aisha, radi-Allahu anha, whom the female companions used to consult regarding menstruation and when to pray or not to. It is her and other female companions’ narrations (in particular Hamna bint Jahsh and Fatima bint Abi Hubaish) that form the basis of the fiqh rulings on this subject. Fiqh and Hadith books have pages of discussion on the many intricacies of this topic; indeed, it is often considered one of the most complex chapters of fiqh with regards to the variety of circumstances and rulings. It wasn’t something just invented and brought forward based on the whims of scholars without any basis. The same methods and level of scholarship was used in this subject as in any other subject of fiqh.
There is a more fundamental issue at stake here. What was the purpose of Allah preserving the Qur'an if the religion was not meant to be preserved? Allah did not just promise to preserve the words of the Qur'an, He had promised to preserve the teachings, the practices, the entire religion forever. And that was done through the scholars. Religious knowledge and religious law has been protected, preserved, and passed down from generation to generation through the work of these scholars.
This protection is necessary for Islam to remain. It is simply not possible to accept Islam as the true unchanged religion and then to believe that scholars have been wrong or biased for so long and only now we have discovered it. The Prophet, Sall-Allahu alayhi wa sallam, himself had promised, "My ummah will never agree on an error/misguidance, so stay with the majority..." Any stray opinions, opinions opposing the Qur'an and Hadith were quickly battled away before they became law. Scholars willingly suffered years of jail defending the truth instead of giving in to please rulers who wanted to bend religious law in their favor. It was Allah’s protection that protected this religion in this manner. The scholars were guided by the admonition of the Prophet SAW that this knowledge is a trust from Allah, and whoever invents something from himself in the matter of deen will be responsible. They remembered very well the hadith that states that whoever hides knowledge will be responsible.
In our move forward whatever steps are taken should be taken with a positive and respectful attitude towards the scholars of the past. We need to build upon our rich tradition, not break away from it.
Of course there is room for differences of opinions and no one is infallible. And yes, some rulings are subject to circumstances and can change according to the times. We definitely need more research and reflection on women issues especially in light of modern issues, and we need women scholars in that field. But we must keep in mind that this work requires immense knowledge and deep understanding of the various Islamic sciences. To pass judgments and rulings requires a thorough knowledge in the science of forming judgments and rulings - a science that constitutes the most fundamental structural framework of Islam, a science that transcends subset issues of gender and circumstance.
In our move forward whatever steps are taken should be taken with a positive and respectful attitude towards the scholars of the past. We need to build upon our rich tradition, not break away from it. If we start our journey by dismissing everything of the past, we have in essence cut ourselves off from the tradition of scholars, cut ourselves off from the chain which links us to the inheritance of the prophets.