Islamic Law and Gender

by

Natana DeLong-Bas

• LAST MODIFIED: 24 April 2019
• DOI: 10.1093/obo/9780195390155-0264

Introduction

Studies of gender in Islamic law combine methodologies from two distinct fields of study: Islamic law, and women and gender. While Western scholarly study of Islamic law began in earnest during the era of Orientalist scholarship (late 19th through mid-20th centuries), focusing largely on questions of origins and mechanics, particularly outlining rules and regulations and the rights and duties of various groups of people, the application of women and gender methodologies to Islamic law dates to the 1980s, with substantial work beginning in the 1990s. Since then, the field has expanded to include case studies of different times, places, and variations between law schools (madhhabs), comparative analyses, and attention to contemporary reform efforts, particularly in family law.

Orientalist Debates about the Origins and Development of Islamic Law

Orientalist debates about the origins of Islamic law are important to gender issues because they established the framework for scholarly analysis, raising fundamental questions about whether certain regulations and norms could be traced to Muhammad’s lifetime or were later developments. Because contemporary reform efforts in family law frequently appeal to the foundational era of Muhammad and the Companions, questions about origins and dates—of the Qurʾan, hadith (records of Muhammad’s sayings and deeds), and jurisprudence (fiqh)—can be crucial in supporting or opposing a given regulation. During the era of Orientalist scholarship, questions about the origins and mechanics of Islamic law—what it said, how it operated, what rules and regulations it established, and what rights and duties were assigned to whom—took precedence over concerns about value systems and gender role construction. In works such as Goldziher 1981 (first published 1910) and Schacht 1964, scholars argued that neither Islamic law nor the hadith literature existed during Muhammad’s lifetime or for the greater part of the first Islamic century, but were borrowed and developed from other cultures and civilizations under the Umayyad dynasty (661–750 CE) and projected backward to Muhammad and the Companions. Although this overall framework was initially well received by Western scholars, some disagreed. Coulson 1964 argued that the origins of Islamic law were present in Muhammad and the early community’s practices, although not fully manifested until later. Juynboll 1983 asserted that Islamic law dated to the second quarter of the 8th century, although Juynboll acknowledged that at least some hadith approximated what Muhammad said and did, even if not formally transmitted until forty to fifty years later. Calder 1993 concluded that hadith-based jurisprudence did not emerge until the 9th and 10th centuries. Yet other scholars have supported origins of the Qurʾan and hadith in Muhammad’s lifetime based on studies of Arabic literary papyri, as seen in Abbott 1964 and Sezgin 1996. Azami 1978 agrees with this finding, observing that many hadith were shared by groups with different theological and legal perspectives, suggesting earlier, common origins. Hallaq 1997 presents evidence of rudimentary legal theory as early as the end of the 8th century, along with reports dating to earlier times, including, in some cases, Muhammad’s lifetime. Hallaq 2009 gives greater attention to women and gender issues, including their many and varied roles in public life, albeit within a critique of the colonial era for reducing Sharia to family law with a patriarchal flavor. Many scholars today examine hadith individually or according to theme, rather than as collections. Afsaruddin 2013 analyzes hadith related to martyrdom and types of warfare, while al-Albani 1995 assesses individual hadith based on chains of transmission.

• Abbott, Nabia. Studies in Early Arabic Literary Papyri. Vol. 2. Chicago: University of Chicago Press, 1964.

  Argues in favor of hadith transmission in both oral and written form from the beginning of Islamic history, as well as care in scrutinizing and authenticating chains of transmission, so that the growth of hadith literature in the 2nd and 3rd Islamic centuries was not due to fabrication of content, but to an increase in parallel and multiple chains of transmission.

• Afsaruddin, Asma. Striving in the Path of God: Jihad and Martyrdom in Islamic Thought. New York: Oxford University Press, 2013.

  DOI: 10.1093/acprof:oso/9780199730933.001.0001

  Examination of early literature on jihad and martyrdom that concludes that certain hadith, such as those addressing apocalyptic events, martyrdom for death in battle, and those citing naval warfare, which was unknown during Muhammad’s lifetime, were fabricated by the Umayyad dynasty for political purposes. Methodology compares the content and orientation of the hadith to the Qurʾan.

• al-Albani, Nasir al-Din. Silsilat al-ahadith al-sahiha. Riyadh: Maktabat al-Ma’arif, 1995.

  Example of al-Albani’s reexamination of the chains of transmission of canonical hadith. Although frequently critiqued by scholars as overly simplistic and literal in methodology, he has had great impact in popular circles.

• Azami, M. M. Studies in Early Hadith Literature. Oak Brook, IL: American Trust Publications, 1978.

  Provides support for early origins of hadith literature, rooted in finding that certain hadith were shared by very different groups, including Sunnis, Zaydis, and Kharijites, which Azami argues bolsters the credibility of earlier, rather than later, origins.

• Calder, Norman. Studies in Early Muslim Jurisprudence. Oxford: Clarendon, 1993.

  Examination of the six major classical legal texts which concludes that hadith-based jurisprudence dates to the 9th and 10th centuries. Rather than origins, Calder’s analysis sought to trace the professionalization of jurisprudential writing.

• Coulson, N. J. A History of Islamic Law. Edinburgh: Edinburgh University Press, 1964.

  Serious investigation into Schacht’s claims about hadith origins, arguing instead in favor of accepting as authentic the substance of traditions, particularly those dealing with daily life problems on legal matters, as likely to represent approximately prophetic rulings in the absence of evidence otherwise.

• Goldziher, Ignaz. Introduction to Islamic Theology and Law. Translated by Andras Hamori and Ruth Hamori. Princeton, NJ: Princeton University Press, 1981.

  Originally published in German in 1910, this was the first Western scholarly study of the Islamic legal tradition, albeit through the lens of rabbinic law, and it raised questions about the authenticity of hadith literature. Although there is little direct attention to women, they are mentioned in discussions of various points of family law.

• Hallaq, Wael B. A History of Islamic Legal Theories: An Introduction to Sunni usul al-fiqh. New York: Cambridge University Press, 1997.

  DOI: 10.1017/CBO9780511801266

  Written in response to Schacht, this has become the new standard in the field of Islamic law for the development of the system of usul al-fiqh as a mix of pre-Islamic customary law and the Qurʾan, rooted in an understanding of the community as both a political and a social unit. Women and gender are studied within a broader discussion of legal structures and socio-religious reality, not as a separate subject of study.

• Hallaq, Wael B. An Introduction to Islamic Law. New York: Cambridge University Press, 2009.

  DOI: 10.1017/CBO9780511801044

  Discusses Islamic law as a direction and method of social morality, rather than a mechanical and interpretive manifestation of the divine will. Gives special attention to the presence of women, both free and slave, as legal agents in court records defending their reputation and honor, owners and managers of wealth and property, and plaintiffs and defendants in matters ranging from family law to civil damages and breach of contract.

• Juynboll, G. H. A. Muslim Tradition: Studies in Chronology, Provenance, and Authorship of Early Hadith. New York: Cambridge University Press, 1983.

  DOI: 10.1017/CBO9780511752155

  Work focused on the origins of the hadith, arguing in favor of 40–50 years of discussion of what Muhammad said and did before a formal process of transmission began.

• Schacht, Joseph. An Introduction to Islamic Law. New York: Oxford University Press, 1964.

  Foundational work in the field of Islamic law, challenging the presumed origins and timelines of the Qurʾan, hadith, and Islamic law, and dating them to 100 years after Muhammad’s death. Although it notes the frequent disconnect between jurisprudence and actual practice, this issue is not explored in depth.

• Sezgin, Fuat. Geschichte des arabishcen Schrifttums. Vol. 1. Leiden, The Netherlands: Brill, 1996.

  Examination of early hadith manuscripts and analysis of the formulas used for chains of transmission. Concurs with Abbott’s finding that recording of hadith literature began during Muhammad’s lifetime and continued through the compilation of the canonical hadith sources in the 3rd century.