Justifying gender inequality in the Shafi'i law school: two case studies of Muslim legal reasoning.

• Author: Lucas, Scott C.
• Position: Report

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. How can I read these books without studying them with at least one, and, ideally, multiple well-trained Muslim scholars? In an ideal situation, a researcher would study the major works of a school's curriculum with multiple scholars in several different countries. However, I wish to argue that if the majority of a school's core textbooks and their attendant commentaries from the past millennium are studied, including those that are encyclopedic, one should be able to gain a reasonably good grasp of that school's positions and the range of its arguments in their defense. (11) The basic methodology I am now proposing should serve to unveil a law school's primary positions and arguments, with the caveat that individual jurists who have mastered the curriculum are always free to advance their own novel justifications for positions that differ from the written words on the page.

METHODOLOGY

The primary methodological challenge facing the researcher of the normative positions of an Islamic law school is the daunting size of its library. The following three steps should serve to reduce this library to a manageable number of texts while not jeopardizing the accuracy of one's results. First, one should acquire a sound periodization of the historical development of the legal school under examination. (12) Very few Muslim jurists have been trained thoroughly in more than one legal school, and the volume of each school's textual output is staggering. Second, for reasons I mentioned above, one should restrict one's gaze to the school textbooks and an array of both their succinct and encyclopedic commentaries, while postponing analysis of the works on legal theory and of fatwa collections until a later date. (13) Third, one should ascertain which of these books have been most influential in the school. (14) This can be achieved by a variety of means, such as studying the school's biographical tradition, guides to the school, current curricula, or current holdings of traditional Islamic Jaw schools (madrasa, pesantren).

Let us turn now to the Shafi'i school. I have yet to come across a comprehensive periodization of the historical development of the textual tradition of this school in the Western sources. There exists a detailed description of the growth of the Shafi'i school until the turn of the eighth/fourteenth century (15) and the entry "Shafi'iyya" in the Encyclopaedia of Islam identifies several of its most important texts, but the only comprehensive overview of the school I have found is a recently published doctoral dissertation from the University of Jordan, entitled al-Madkhal ila madhhab al-Imam al-Shafi'i. (16) The author identifies the following six broad periods, some of which he subdivides, of the Shafi'i school:

(1) Foundations (195-270/810-883)

(2) Appearance of the Shafi'i school (270-505/883-1111)

(3) The First Revision by al-Rafi'i and al-Nawawi (505-676/1111-1277)

(4) The Second Revision by al-Haytami and al-Ramli (676-1004/1277-1595)

(5) Supporting Works of the Second Revision (1004-1335/1595-1916)

(6) Retreat from Adherence to the Shafi'i school (1335/1916-today) (17)

Al-Qawasimi bases his periodization on his reading of the internal Shafi'i biographical tradition, as well as his study with traditional scholars, Each of the dates he chooses for the transition between periods corresponds to the death date of a highly influential jurist--for example, the second period ends with the death of al-Ghazali, the third with the death of al-Nawawi, and the fourth with the death of Shams al-Din al-Ramli. Al-Qawasimi also identifies some of the most important jurist-authors and their books for each period, as well as general trends and developments within the school. His book is a thoroughly modern study based exclusively on traditional sources and religious scholars, without the citation of Western sources. (18)

Al-Qawasimi's work is complemented by Martin van Bruinessen's empirical analysis of the local Arabic publications available at bookstores in the vicinity of forty-six Southeast Asian pesantren. (19) Van Bruinessen's study is crucial for our purposes because of the fact that Indonesia, the country with the largest Muslim population, is almost exclusively affiliated with the Shafi'i school. His methodology is worth quoting at some length, since it reflects the care by which he assembled his book collection:

I visited the major publishers and toko kitab (bookshops specializing in this type of religious literature) in Jakarta, Bogor, Bandung, Purwokerto, Semarang, Surabaya, Banda Aceh, Medan, Pontianak, Banjarmasin, Amuntai, Singapore, Kuala Lumpur, Georgetown (Penang), Kota Bharu and Patani (Southern Thailand), and bought there all available Islamic books in Arabic script printed in Southeast Asia. The last two criteria may at first sight seem rather arbitrary, but I found them to be sociologically significant besides being the most convenient ones. It is true, most toko kitab also sell limited numbers of Arabic books printed in Egypt and Lebanon, but the price differential between such books and Southeast Asian editions guarantees that they are bought by a relatively small minority only. Similarly, the script in which a book is printed carries symbolic meaning and differentiates rather neatly between two different types of reading public. Indonesian Muslims use different words for books in romanized script (buku) and those in Arabic script (kitab), irrespective of the language. Up to the 1960s a well-defined line divided the Muslim community into "traditionalists" and "modernists" (with as their major socio-religious organizations the Nahdlatul Ulama and the Muhammadiyah, respectively). The former used to study religion exclusively through kitab kuning ("yellow books" after the tinted paper of books brought from the Middle East in the early twentieth century), while the latter read only buku putih "white books" in...