Debates on women's status as judges and witnesses in post-formative Islamic law.

• Author: Bauer, Karen

INTRODUCTION

The question of whether any consistent logic guided doctrine on women as judges and witnesses in post-formative Islamic law has been particularly vexing for contemporary scholars. (1) Although women are disadvantaged in almost every aspect of rules on testimony and judging, their disadvantage is not consistent: two women do not always equal one man; in some cases they can testify without men; and some schools allow them to act as judges. These rules would seem to reflect the jurists' ideas of women's mental capacities. Mohammad Fadel has argued that jurists must have seen women's minds as equal to men's, for any claim that women were generally intellectually deficient would be inconsistent with the doctrine that permitted them, in certain intellectual arenas, to act equally to men. (2) Judith Tucker notes, however, that although some Hanafi jurists say that women are not deficient in rationality ('aql), they assert that they are unable to remember as well as men; she characterizes this as "a somewhat contradictory moment." (3) In this article, I contextualize the jurists' discourse on women as judges and witnesses by examining it diachronically, highlighting prominent arguments as they develop through time. (4) I suggest that rulings that enable women to act equally to men do not necessarily reflect the formative jurists' ideas of women's mental capacity, but often the only explanations for the rulings are given by post-formative jurists, which are neither uniform nor static.

A diachronic analysis reveals that there are some elements of the juridical discourse that are constant. Jurists share a premise of certain inequalities between the sexes: they explain women's disadvantage in the law by saying that men are in authority over them, and this authority is generally justified by the sexes' inherent mental and physical differences. Explanations of male authority and women's deficiencies represent a coherent picture of a "natural" social hierarchy and "natural" gender roles; this hierarchy explains women's disadvantages in the law in general.

Even then, notions of male authority and women's mental deficiencies are not described in a consistent way. (5) In order to justify specific doctrines, some of which give women rights in the law equal to men, post-formative jurists adopt different interpretations of key concepts, such as male authority, and key terms, such as 'aql--some jurists say that women have some authority, others say they have none; some jurists say that women are deficient in rationality, others say they are not. These debates can seem to represent substantial differences in jurists' ideas of women's capacity, which in turn seem to be the cause of doctrine that treats women with more or less disadvantage, as, e.g., in the case of Hanafis, who argue that women are not deficient in rationality and espouse doctrines of greater equality (women can testify in most cases, and they can judge where they can testify). But jurists' arguments must be seen in light of their function within the juridical manuals as points in a debate that lasted for many centuries. Some of these arguments, such as the argument that women are not deficient in rationality, appeared long after the doctrine; they were developed over time in order to justify a particular school's rules (in this case, Hanafi rules). And, rather than representing a widespread current in the juridical discourse, such arguments seem hardly to have impacted the non-Hanafi jurists. It is important, therefore, to take arguments about gender in their proper context.

One complex issue in the study of law is the relationship between received law, as it was expressed by early jurists, and the post-formative jurists' interpretation of the rulings as they are expressed in legal manuals, such as the ones studied for this article. Are the rulings based on coherent, systematic methods of interpretation of the canon, undertaken by generations of jurists through time, or are most rulings actually received law, the ideas of the earliest jurists handed down, which the jurists of each subsequent generation need to justify? This article is not an attempt to examine these important questions regarding the underlying logic of the law; instead, it is an attempt to explain the logic by which jurists understood particular doctrine.

Jurists' justifications may or may not reflect the actual source for, or cause of, the law; they are, however, their best attempts to explain why the law makes sense. Debates that may, today, be read exclusively from a gender perspective may at the time have had less to do with jurists' perception of women's abilities than with their desire to find a coherent justification for the law. Saying that jurists formulated their arguments as a justification for their school's view, or their own view, is not to say that they did not believe their own arguments. They were involved in a longstanding debate, and it is not surprising that new arguments developed through time in order to support already-established positions. Nor is it surprising that, occasionally, new positions developed. (6) By organizing jurists' arguments in roughly chronological order, I hope to illuminate the way that debates on women's status developed through the centuries.

This article focuses on how jurists justify their doctrines on women as judges. But it is sometimes necessary to refer to their discussions of women's testimony, particularly as regards the Hanafis, for although the Hanafiyya is the largest school to support the doctrine of women as judges, Hanafis do not speak about why women can judge other than drawing an analogy to women's testimony. In their discussions of why women can testify in some cases and not others, Hanafis are more verbose about women's capacity.

After briefly outlining the schools' positions on the question of women as judges and some early jurists' views in favor of the practice, I examine several views from the fifth/eleventh century, when detailed discussions about women's capacity emerged. I argue that the idea of the gender hierarchy was already dominant at this time, but that its limits were debated by jurists who differed in their views of whether women could exercise authority. I then trace Hanafi arguments about women's rationality as they developed during several centuries of discussions on testimony; this shows that arguments that can seem logically to precede doctrine were actually developed in response to it. The third section discusses the observation that although Hanafi arguments were styled as a refutation of other schools' views, they did not seem to have had any actual impact on jurists from other schools, even when those jurists agreed with Hanafi rulings. The article concludes with a brief examination of the historical accounts of a woman named Thumal (d. 318/930), who acted in a capacity resembling a judge.

FEMALE JUDGES: AN OVERVIEW

Jurists' opinions on the question of whether women can judge are usually determined by their school's view: Hanafis, Zahiris, and Jariris support the practice; all other schools are against it. Although the majority of Hanbalis, Malikis, Shafi'is, and Imamis prohibit women from judging, jurists from the latter three schools have dissident views. (7) Each case is slightly different in terms of the way the jurists relate to established school views. One early Maliki ruled in favor of women judges, and while the majority went against him, some laker Malikis refer to this precedent within their own school in order to rule that women can judge. The Shafi'i Ibn Abi I-Dam (d. 642/1244) disagrees with his own school's view, but adheres to the doctrine of another school: he argues in support of the Hanafi rules on women's judging and testimony. And to rule in favor of women as judges in some cases, the Imami al-Ardabili (d. 993/1585) does not refer to precedent in his own school nor to specific examples from other schools, but rather to the lack of consensus on the matter. Most jurists who allow women the right to judge do not grant them the right in all circumstances: according to the Hanafis, for instance, women can only judge in those cases for which they can testify.

PRE-FIFTH/ELEVENTH-CENTURY VIEWS IN FAVOR OK WOMEN AS JUDGES

This study focuses on post-formative juridical discussions, but these discussions often respond to the views of jurists from earlier periods, which I will mention briefly here. One of the most prominent early jurists to support the doctrine of women as judges was Abu Hanifa (d. 150/767), who drew an analogy with testimony. Following Abu Hanifa, the Hanafi school of law permits women to judge where they can testify; according to Hanafi doctrine, this is in all cases other than hudud or qisas (hudud being those ordinances that pertain to crimes against God, such as adultery, and qisas being cases requiring some retaliation or payment, such as murder). (8)

The Maliki Ibn al-Qasim (d. 191/806), who was a student of Malik, says that women can judge; there is only disagreement within the school as to whether he meant that they could judge in all cases, or only in the cases where they could testify. (9) The Maliki majority went against Ibn al-Qasim's view, to rule that women could not judge, yet some Malikis follow Ibn al-Qasim and disagree with the majority view.

Al-Tabari (d. 310/923), the founder of the Jariri school of law, says that women can judge in all cases. He draws an analogy between judging and interpreting the law (viz., being a mufti). Although the requirements for being a mufti are more stringent than those for being a judge, and although all Sunni schools of law permit women to be muftis in all matters, no other jurist in this study drew the analogy between giving fatwas and judging. The difference, for the majority of jurists, is one of authority; issuing judgments is legally binding, while giving fatwas is not, and therefore judging...