Justifying Gender Inequality in The Sha

Justifying Gender Inequality in the Shafi<j Law School:
Two Case Studies of Muslim Legal Reasoning

SCOTI C. LUCAS
UNIVERSITY OF ARIZONA
hlitu burhiinakum in kunlum ｾｩ､ｱｮ＠

"Bring forth your proof if you are truthful." I
The topic of "women and Islam" is highly contentious in both popular and academic lit-
erature. 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 com-
munal prayer. Yet even when the sphere of inquiry is limited to specific topics of Islamic
law, scholars must engage an immen se 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 Ｈｵｾｬ＠ al-fiqh), and collections of fatwas (responsa); the latter
one consists of court registers (sijilliit) 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 contem-
porary studies on thi s 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 ｾＱｇ､ｬｴｨｳＮ＠ 6 Those individu als who do
engage the legal textbooks and encyclopedias tend to favor works from the formative
I. Qur'an 2: I I I.
2. This is a slight modification of Baber Johansen's five categories of Muslim legal writings: (I) textbooks for
teaching purposes (mutiin and ｵｾｵｬＩ［＠ (2) commentaries ＨｳｨｵｲｌＭＧｾＩ［＠ (3) fatwa collections; (4) small legal treatises on
specific topics; (5) court registers (sijilltic); see hi s collection of articles, COlllingency in a Sacred Law (Leiden: Brill.
1998), 448-5 I.
3. Examp les include Mohammad Fadel, "Two Women, One Man: Kn ow ledge, Power, and Gender in Medieval
Sunni Legal Thought," Illlernational Journal oj Middle Easc Scudies 29 (1997) : 185-204: and Khaled Abou EI Fadl,
Speaking in God's Name (Oxford : Oneworld. 200 I).
4. Examples include Maya Shatzmiller, "Women and Property Rights in al-Andalus and the Maghrib: Social
Patterns and Legal Discourse," Islamic Law and Sociecy 2.3 (1995): 219-57 ; Judith Tucker. In che House ofche Law
(Berke ley and Los Angeles: Univ. of California Press, 1998); and numerous publications by David Powers since
1990, such as Law, Sociecy and Culcure in the Maghrib, 1300- 1500 (Cambridge: Cambridge Univ. Press, 2002).
5. Recent examples include Leslie Peirce, Moralic), Tales: Law and Gender in che Olloman Court of Ailllab
(Berkeley and Los Angeles: Univ. of California Press. 2003); John Bowen Islam, Law, and Equality in Indonesia
(New York: Cambridge Univ. Press, 2003); and most of the contributions to Women, the Family, and Divorce Laws
in Islamic History, ed. Amira Sonbol (Syracuse: Syracuse Univ. Press, 1996).
6. Fatima Mernissi, The Veil and the Male Elite, tr. Mary Jo Lakeland (New York: Addison-Wesley, 1991);
Amina Wadud, Qur'an and Woman (New York: Oxford Univ. Press, 1999); Asma Barlas, "Believing Women" in
Islam : Ullreading Patriarchallnterprecations of the Qur'tin (Austin : Univ. of Texas Press. 2002); Taha J. 'Alwani,
"The Testimony of Women in Islami c Law," The American Journal of Islamic Social Sciences 13.2 ( 1996): 173-96.
Journal of the American Orienrai Society 129.2 (2009) 237

238 Journal of the American Oriental Society 129.2 (2009)
period of Islam (750-900 C.E.) rather than the school textbooks of the classical and post-
classical 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 con-
tinues 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) documen-
tary 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, ex-
cellent 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 (l17adhhab).
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 com-
mentaries 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 edu-
cation 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 po-
tential 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,
7. Susan Spectorsky, Chapters on Marriage and Divorce: Responses of /bl/ J:fal/bal al/d /bl/ Rclhll'ayh (Au,tin:
Univ. of Texas Press, 1993): Kecia Ali. "Progressive Muslims and Islamic Jurisprudence: The Necessity for Critical
Engagement with Marriage and Divorce Law," in Progressil'e Muslims , ed. Omid Safi (Oxford: Oneworld, 2003):
163-89.
8. Although note Johansen 's cautionary remark that the ｱＨＯｾｬｩＧｳ＠ verdict could be annulled by a variety of means,
so his decisions do not necessarily reflect what actually happened; Contil/gency in a Sacred Law, 452.
9. Brannon Wheeler. Applying the Canol/ il/ /slam (Albany: State Univ. of New York Press, 1996), especially
ch. 4 ("'Maintenance of Authority'"). Note George Makdisi's observation that the two primary objectives of a clas-
sical legal education were memorization of an expanding array of legal issues (mascl)i/) and mastery of the art of
disputation by memorizing the relevant proofs and devising new arguments to surprise one's opponents; George
Makdisi, Rise of the Colleges (Edinburgh: Edinburgh Univ. Press, 198 I), 112; cited in Bernard Weiss, "Medieval
Legal Education as Reflected in the Works of Sayf ai-Din al-Amidj," in Law al/d Education in Medieval/slalll. cd.
Joseph Lowry et al. (E. J. W. Gibb Memorial Trust. 200-+). 112.
10. It is true that some ｵｾＧｩＯ＠ books. such as al-Juwaynl"s Waraqtit, were written at an extremely elementary
level , but it is difficult to see how most theoretical works could have been taught prior to a student's familiarity with
the predominant positions of his school. There exists evidence that students have long memorized these shorter ftqll
textbooks while teenagers; see Devin Stewart, "The Doctorate of Islamic Law in Mamluk Egypt and Syria:' in LalV
alld Edllcatioll in Medieval/slam , 50-5 I.
LUCAS: Gender Inequality in the Shaftcl Law School 239
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. II 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 justi-
fications 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 res ults. First, one should acquire a sound periodization of the historical
development of the legal school under examination. 12 Very few Mu slim 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 bio-
graphicaJ tradition, guides to the school, current curricula, or current holdings of traditional
Islamic law schools (madrasa, pesantren).
Let us turn now to the Shafi'! school. J have yet to come across a comprehensive period-
ization 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 c! school until the turn
of the eighth/fourteenth century 15 and the entry "ShafiCiyya" ill the Encyclopaedia of Islam
II. An anonymous reviewer of thi s article stressed thatjiqh manuals are merely collecti ons of an individual
jurist's opinions and not the "norm" of the school. it is true that no single manual can be considered the abso lute
"norm" for a school. which is why it is necessary to exami ne multiple books. I do not think it is too bold a step to
argue that if fifteen or twenty authoritative jurist-authors of a schoo l hold an identical position on a specific legal
issue, we can label that position as the "norm ative" one for that school. Also, to clarify, I am not suggesting that
thesc textbooks had any direct impact on normat ive practice in Shiifi'j comm unities; rather, my point is that they
record normative values th at were and cont inue to be inculcated in the primary institutions of religious education.
12. The benefits of restricting oneself to a sing le school tradition are visible in Baber Johansen's work with the
f:\ anafi tradit ion in the articles found in COlltingency ill a Sacred UlI>'. and his contribution "The Valorization of the
Human Body in Muslim Law;' in Law and Society ill Islalll, ed. Devin Stewart et a l. (Princeton: Markus Wiener
Publishers, 1996), 7 1-11 2. Even Joseph Schacht relied exclusively on a late f:\anafi textbook for hi s "Systematic
Section" in All Illt rodlictiolllO Islamic u/w (Oxford: Clarendon Press, 1964). 112-98.
13. This i not to deny the immense value of fat was for reconstructing social history; rather, my poilll is that
fatwa coll ections are of limited utility for assessing the opi ni ons and reasoning that Muslim law professors have in -
sti lled in their pupils, on ly a modest percelllage of whom have had their fatwas recorded.
14 . Students of the Hanaft school have been well served by Ya'akov Meron 's art ic le. " The Development of
Legal Thought in Hanafi Texts," Studia Islamica, 30 (1969). 73- 11 8. N. Conart's article, "Maliki yya," in the EIl-
cyclopaedia 0/ Islam (hereafter Ef2) hi gh li ghts some of the later foundational Maliki books.
15. He inz Halm' s thorough prosopographical study of the Shafi'l schoo l ends in the early MamlUk period and
focuses more on the institutional roles of these jurists than on their textual production; Heinz Halm, Die Alisbreitllllg
der srtji'itischen Rechtsschule von den An/agen bis 2111118.114. l ahrhlllldert (Wiesbaden : Dr. Ludwig Reichert, 1974).
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 ilil madhhab al-Imiim al-Shiipi. 16 The author identifies the fol-
lowing 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 (270-505/883-11 11)
(3) The First Revision by al-Rafi(i and al-Nawawi (505-67611111-1277)
(4) The Second Revision by al-Haytami and al-Ramll (676-10041l277-1595)
(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 ShaWi 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-
Nawawl. and the fourth with the death of Shams ai-DIn al-Ramli. AI-Qawasimi also iden-
ti fies 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
AI-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(! 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 taka kirab (bookshops specializing in this type of religious lit-
erature) 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 taka 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.
16. By Akram Yusuf al-Qawasimi (Amman: Dar al-NaTa'is, 2003).

17. According to al-Qawasimi , this "retreat" is due to the arrival and imposition of European-style legal codes
in most Muslim countries and the arrival of Western education in general. It is also due to the tendency of tradi-
tional legal colleges in the Eastern Arab world to leach "comparative law" rather than merely the jurisprudence of
a single legal school. It is not the result of the emergence of a rival articulation of Islamic law outside of the four
Sunni schools.
18. Despite the author's reliance on " traditional sources," he is highly critical of the "madhhab-fanaticism" of
the later Shafi ' i tradition that is absent from its earlier writings; see, for example, pp. 419-22 of his Madkhal. Hi s
book also contains an extensive analysis of al-Shafi'i's personal legacy (pp. 21-272), as well as a lengthy section
on the works of legal theory in the Shafi'i school (pp. 501 -87).
19. Martin van Bruinessen, "Kitab Kuning: Books in Arabic Script Used in the Pesanlren Milieu," 8ijdragen
tot de laal-, land- en l'olkellkunde 146 (1990): 227-69. I have relied upon the online version of this article: http://
www.let.uu.nl/-Martin.vanBruinessen/personallpublicationslkitab_kuning.htm (accessed July 15, 2008).
LUCAS: Gender Inequality in the Shaji(i Law School 241
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 (huku) and those in Arabic script (kilah), irrespective of the
language. Up to the 1960s a well-defined line divided the Muslim community into "tradition-
alists" and "modernists" (with as their major socio-religious organizations the Nahdlatul Ulama
and the Muhammadiyah, respectively). The former used to study religion exclusively through
kifab 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 pUlih "white books" in romanized
Indonesian. 2o
The most useful finding of van Bruinessen's work for this study is his identification of
four "families" of textbooks and their commentaries that dominate the Indonesian juridical
curriculum. 21 Three of these families revolve around textbooks that cover the full range of
legal topics, while one of them addresses only topics of ritual worship. The three families
of interest to us are al-Nawawl's (d. 67611277) Minhlij al-tlilibin; Abu Shuja"s (d. 593/
I 197?) Ghliyat ｡ｬＭｩｫｨｴｾｲ［＠ 22 and al-Manbart's (d. 987/1579)23 Fat/:t al-mu(in. 24 When we
combine van Bruinessen's findings (books in bold) with aI-QawasimI's study, the follow-
ing portrait of the Shafi(i school emerges:
I. Solitary Works
al-Mawardi (d. 458/1058; Baghdad): al-Ijawi al-kabir25
Abu Bakr al-Bayhaqi (d. 458/1066; Nishapur): al-Sunan al-kubrli
Abu Isryaq ai-Shirazi (d. 47611083; Baghdad): al-Muhadhdhab
al-Ghazali (d. 5051l111; Baghdad, Nishapur, Tus): al- Was!!
Abu Muryammad al-Baghawl (d. 51711122; Marwarrudh): al-Tahdhib
II. Textbook Families

A. Ghazall-Rafi'i Family
al-Ghazali: al- Wajiz
al-Rafi(i (d. 62311226; Qazwin): al- (Aziz shar/:t al- Wajiz 26
al-Nawawi (d. 676/1277; Damascus): Rawe/at al-!alibin
Ibn al-Mulaqqin (d. 80411401-2; Cairo): al-Badr al-munlr
Ibn al-Muqri) (d. 83711433-34; Yemen): Rawe/ al-tlilib
Ibn I:Iajar al-(Asqalani (d. 852/1449; Cairo): ｔ｡ｬｫｨｩｾ＠ al-/:tablr
Shaykh ai-Islam Zakariyya ｡ｬＭａｮｾｲｩ＠ (d. 92611520; Cairo): Asna al-talib
20. Ibid. The citation comes from the second and third paragraphs.
21. For identification of the five textbook families in the postclassicall:lanafi school , see Meron, ''The Develop-
ment of Legal Thought in Hanafi Texts," 113-17. Eduard Sachau briefly identifies four primary groups of Shafi'i
textbooks in the preface to his Mllhammedanisehes Reeht naeh sehajiitischer Lehre (Stuttgart: W. Spemann, 1987),
xix-xxiv. These groups are equivalent (but not identical) to the families I have labeled below as the AbU Shuja'
family, the Nawawi family, and the An$ari family. The fourth group for Sachau is AbU ｉｳｾ｡ｱＧ＠ al-Telllbih; he also
mentions in passing the Malibari family of textbook.
22. This book is also known as al- Taqrib or, according to van Bruinessen, al-Ghtiya wa-I-taqrib.
23. This is the death date provided by al-Qawasimi, al-Madkhal, 453; van Bruinessen has ca. 1567.
24. This is actually al-Malibari's commentary on his own digest entitled Qurral al-'ayn.
25. This encyclopedic book i a commentary on al-Muzani's (d. 264/878) famous Mukhla.Jar. AI-Muzani's book
was one of the most influential Shafi'i books for the first two centuries of the school, but appears to have elicited
few commentaries after al-Mawardi's magnum opus. In his bibliography of the Shafi'i school, Abu Bakr al-l:Iusayni
(d. 101411605-6) describes al-Mawardi's ai-He/wi al-kabir as a book "the like of which has never been surpassed";
see his Tabaq(jl al-Shaji'iyya, ed. 'Adil Nuwayhit;! (Beirut: Dar al-Araq al-Jadida, 1979), 247.
26. This book is popularly known as ｡ｬＭｓＢｲｾ＠ al-kabir.
B. Abu Shuja( Family

Abu Shuja( ａｾｭ｡､＠ b. al-J::!usayn (d. 593/1197; ｉｾｦ｡ｨｮＩＺ＠ Ghiiyat ｡ｬＭｩｫｨｴｾｲ＠
Taqj aI-DIn ｡ｬＭｊＺＡｩｾｮｪ＠ (d. 829/1426; Damascus): Kifiiyat al-akhyiir
Ibn al-Qasim al-Ghazzj (d. 918/1512; Cairo): FatTJ al-qarib
al-Khapb al-Shirbjnj (d. 977/1569-70; Cairo): al-lqniiC
Sulayman b. ｍｵｾ｡ｭ､＠ al-Bujayrimj (d. 1221/1806; Cairo): Thl)fat al-I)abib
C. Nawawi Family
al-Nawawj: Minhiij al-!iilibin 27
Ibn al-Mulaqqin: (Vjalat al-mu(1taj
Jaliil aI-DIn ｡ｬＭｍｾ｝ｪ＠ (d. 864/1460; Cairo): Kanz al-riighibin
Shaykh aI-Islam ｡ｬＭａｮｾｲｪＺ＠ FatTJ al-wahhiib sharb Manhaj al-!ullab
Ibn J::!ajar al-Haytamj (d. 974/1567; Mecca): Tubfat al-mubtaj
｡ｬＭｋｨｾｪ｢＠ al-Shirbjnj: Mughnl al-mu(1taj
Shams aI-DIn al-Ramll (d. 1004/1595-96; Cairo): Nihayat al-mu(1taj
D. ａｮｾ｡ｲｪ＠ Family
Shaykh aI-Islam ｡ｬＭａｮｾｲｔＺ＠ Tubfat al-!ul/ab bi-sharb Tabrlr tallqi(1 aI-IaMb
(Abd Allah al-SharqawT (d. 1226/1812-13; Cairo): ljashiyat al-Sharqawl
E. MalibarT Family
Zayn aI-DIn al-MalTbarT (d. 987/1579; Mecca): FatTJ ai-mucin bi-shar(1
Qurrat al- cayn
Abu Bah (Uthman ShaHa al-Dimya\T (d. ca. 1302/1893; Mecca):
/fiishiyat iCiinat al-!iilibin
Now that we have reduced the Shafi(j school to what are among its twenty-eight most
influential books, we are left with a voluminous but not entirely unmanageable corpus. 28
The most prudent way to render it even more user-friendly is to cut a few of the commen-
taries from the first three textbook families and focus on the five core family textbooks,
along with the solitary works or al-MawardI, al-Bayhaqi, and AbU ｉｳｾ｡ｱ＠ al-Shjrazl. With
our identification of the key corpus of texts complete, we can proceed to analyze the legal
reasoning behind two cases of gender inequality in the ShaWT school.
FIRST CASE STUDY:

RETALIATION AND FINANCIAL COMPENSATION FOR DEATH OR INJURY (DIYA)
The concepts of retaliation (qi:ja.y) and financial compensation for death or injury (diya)
are rooted in pre-Islamic Arabia and the Qur' an. 29 Muslim scholars have generally agreed
that in the case of intentional homicide (and certain cases of intentional injury) the victim's
family has the option to kill or maim the criminal or accept a fixed amount of financial com-
pensation. In cases of unintentional homicide and injury, the only remedy is compensa-
tion.30 The corpus of Shafi(j textbooks reveals a potential contradiction in its discourses on
27. AI-Nawawi's book is actually a reworking of al-Rafi'i's Mu!wrrar. which survives in manuscript but has
not yet been published.
28. AI-Rabi' b. Sulayman ' s Kiriib al-Umnl is another well-known Shafi'i text that I have not included due to
its early date. the absence of commentaries upon it. and my observation that much of its contents are found in al-
Bayhaqi's al-SlI/ulI7 al-kubrii.
29. See the entries Ｂｾｩ｡＠ (Schacht) and "Diya" (Tyan) in Ell.
30. See Rudolph Peters, Crill7e alld PlIllishmel1f ill Islamic La\\' (Cambridge: Cambridge Univ. Press, 2005).
38-53.
LUCAS: Gender Inequality in the Shiiji(i Law School 243
retaliation and diya. Many of these books state explicitly that a man can be killed in retalia-
tion for killing a woman, which suggests that their lives are of equal value, but nearly all of
them stipulate that the financial compensation for a slain woman is half that of a slain man.
How were these two positions justified and did any Shafi(I jurists see a contradiction be-
tween them?
It is perhaps unsurprising that none of these textbooks cites the Qur'anic verse, "0 you
who believe, retaliation is prescribed for you in cases of murder: the free man for the free
man, the slave for the slave, the female for the female."31 This verse suggests that, just as
a free man cannot be killed in retaliation for killing a slave, a free man might also be exempt
from retaliation for killing a woman. AI-GhazalI, al-Baghawi, and al-Khapb al-Shirbini all
state that "a man can be killed [in retaliation] for [killing] a woman," without offering any
explanation for this ruling. 32 Abu Is\:1aq ai-ShirazI, al-BayhaqI, al-Rafi(I, Zakariyya ｡ｬＭａｮｾｦｵｩＬ＠
and al-Sharqawl all cite a single sentence from a lengthy letter that the Prophet Mu\:1ammad
purportedly sent to the people of Yemen that reads in part, "a man can be killed [in retalia-
tion] for [killing] a woman."33 This "Letter to Yemen," which was in the sole possession of
the descendants of the Companion (AmI' b. I:lazm, lays out many of the details of retaliation
and diya and is found in one of the six canonical collections of Sunni f:tadlth. 34 While Abu
Is\:1aq also supports this position with an interesting analogy drawn from the crime of false
accusation of fornication (qadhf), and al-BayhaqI, the consummate collector of transmitted
reports, relates an additional two Successor reports and two more prophetic f:tadlths, it appears
that the famous "Letter to Yemen" provided the decisive argument in favor of this position,
which is not necessarily the conclusion one would draw from Qur'an 2: 178. 35
Unlike the case of retaliation just examined, there is no indication in the Qur'an that a
slain woman's life merits only half of the financial compensation as that received for a slain
man. On what grounds do the most famous Shafi(I jurists base this opinion? 36 While al-
Ghazall provides no evidence for this po ition, we are fortunate that most of our jurist-
authors do offer some explanations for it. The evidence they promote falls into one of three
categories: Companion reports; prophetic (wdiths; consensus of the jurists.
The Companions of the Prophet Mu\:1ammad occupy a special place of authority anlong
Sunni Muslims. They are the men and women who either heard the Prophet say something
31. Qur'an 2: 178.

32. al-Ghazali, al- Wasi! ji I-madhhab. ed. ａｉｾｭ｡､＠ Mal:ullud Ibrahim. 7 vols. (al-Ghuriya: Dar ai-Salam, 1997),
6: 277; 'Abd ai-Karim al-Rafi'i, ｡ｬＭＧａｾｩＺＮ＠ sharb al-Wajiz, ed. 'Ali Mu'awwa4 and 'Adil 'Abd al-Mawjiid, 13 vols.
(Beirut: Dar al-Kutub al-'I1miyya, 1997), 10: 170-72; Ibn ai-Farra' [al-Baghawi]. al-Tahdhib fi jiqh at-Imdm al-
ShlIji'i, ed. 'Ali Mu'awwa4 and 'Adil 'Abd al-Mawjiid, 8 vols. (Beirut: Dar al-Kutub al-'I1miyya, 1997),7: 22; al-
Khalib al-Shirbini, al-Iqnd' Ji !wll alfd; Abi SlllIjd', found in Sulayman al-Bujayrimi, Bujayrimi 'aW I-Klw!ib ,
4 vols. (Beirut: Dar al-Fikr, 1998), 4: 160.
33. Abu Isi:Iaq ai-Shirazi , al-Mllhadhdhab fi jiqh ai-Imam al-ShlIji'i. ed. Mui:Iammad al-Zuhayli, 6 vols. (Da-
masc us: Dar al-Qalam; Beirut: ai-Dar al-Shamiyya, 1992-1996),5: 10; Abii Bakr al-Bayhaqi, al-Sllnan al-kllbrd,
ed. Mui:Iammad 'Ana, II vols. (Beirut: Dar al-Kutub al-'Ilmiyya, 1999),8: 51-52; al-Rafi'i, ｡ｬＭＧａｾｩｺＬ＠ 10: 170-72;
Zakariyya ｡ＱＭａｮｾｲｩＬ＠ ASlld al-ma!dlib shar/l Rall'r/ al-!dlib, ed. Mul:Iammad Tamir, 9 vols. (Beirut: Dar al-Kutub al-
' I1miyya, 200 I), 8: 36; 'Abd Allah al-Sharqawi, Hdshiyat al-S/zarqdll'i, 4 vols. (Beirut: Dar al-Kutub al-'I1miyya,
1997),4: 175.
34. al- asa'i, al-SlI/wll (Kitab al-qasama: Bab dhikr l:Iadith 'A mr ibn l:Iazm fi I-'uqiil wa-ikhtilaf al-naqilin
lahu). It is also found in the $a!li!l of Ibn l:Iibban and al-Musladrak of al-l:Iakim al-Naysabiiri; see Ibn al-Mulaqqin,
al-Badr al-nulIlir Ji lakhrij al-ailMith lVa-l-dIMr al-lI'dqi'a Ji I-Shar!l al-kabir, ed. Mugafa 'Abd al-l:Iayy et ai.,
10 vols. (Riyadh: Dar al-Hijra, 2004), 8: 377-87. Ibn al-Mulaqqin also observes that a 1Il1lrsai version of this letter
appears in the Mllwa!!a' of Malik and that Malik was al-Shafi'i's source for this report.
35. In his entry Ｂｾｩｦ＠ Joseph Schacht evinces surprise that Q 2: 178 did not overrule this position.
36. As we shall see, nearly all Muslim jurist-authors, not just Shii!i'is, adhere to this discriminatory position.
or just saw him during his lifetime. While according to most books of legal theory the opinion
of a Companion is of limited authority,37 some master jurists considered their opinions under
the rubric of "prophetic practice" (sunna) and others considered the opinion of a Com-
panion that no other Companion found to be objectionable authoritative under the rubric of
"consensus." Shifting back from theoretical works to textbooks, it is clear that Companion
opinions have been taken very seriously by most of the jurist-authors of the Shafi<j school.
Writing in the first half of the fifth/eleventh century, al-Mawardj lists the prominent
Companions <Umar, <All, Ibn <Abbas, and Zayd b. Thabit as proponents of the position that
a woman's diya is equal to half of a man's diya. Like all of the jurists in our survey, with
the exceptions of al-Bayhaqj,38 Ibn al-Mulaqqin (in al-Badr al-munlr), and Ibn I:Iajar al-
<Asqalanj, al-Mawardj eschews providing any actual reports (or their chains of transmission)
that testify to this set of Companions holding these views. 39 Abu ｉｳｾ｡ｱ＠ al-Shjrazj adds the
Companions <Uthman and Ibn <Umar to al-Mawardl's list, while al-Baghawj only mentions
<Uthman and <AlL Turning to the Shafi<j textbook families, we find that al-Rafi<j attributes
this position to al-Mawardl's "five Companions" (minus Zayd b. Thabit) and adds <Uthman,
Ibn Mas<ud, and Ibn <Umar. ａｉＭＺｩｾｮｪＬ＠ in his commentary on the short book of Abu Shuja<,
adds <Abd Allah b. <Amr b. ｡ｬＭ＼ａｾ＠ and Ibn al-Zubayr, along with five of the Companions
already mentioned. 4o Finally, Ibn al-Mulaqqin, in his elucidation of al-Nawawl's Minhiij,
uses the generic expression "the <Abd Allahs" (abadila), a term that he indicates elsewhere
refers to Ibn <Abbas, Ibn <Umar, Ibn al-Zubayr, and <Abd Allah b. <Amr b. ｡ｬＭ＼ａｾＮ＠ 41 This
initial foray into the Shafi<j curriculum reveals considerable confusion on the part of the
jurists over which Companions supposedly articulated the position that a woman's diya is
but half that of a man.
The second category of evidence consists of two /:tadlths attributed to the Prophet
ｍｵｾ｡ｭ､Ｎ＠ The first one, which is related by only al-Mawardj, al-Rafi<j, and ｡ｬＭｦＺｩｾｮｪＬ＠
claims that the lengthy "Letter to Yemen" we encountered in our discussion of retaliation
also contained a line that read, "The diya of a woman is half [the diya] of a man."42 The
only problem with this piece of evidence is, according to Ibn al-Mulaqqin and his pupil,
Ibn J::Iajar al-<Asqalanj, that none of the narrations of this /:tadlth includes this line about a
woman's diya. 43 Ibn J::Iajar's pupils, like Shaykh aI-Islam ｡ｬＭａｮｾｲｪＬ＠ and subsequent ShaWjs
wisely dropped this invalidated proof from their books, as there is no trace of it in the later
commentaries.
37. Bernard Weiss, The Searchfor God 's Law (Salt Lake City: Univ. of Utah Press, 1992),668- 72; Mohammad
Kamali, Principles of Islamic Jurisprudence, 3rd ed. (Cambridge: The Islamic Texts Society, 2003), 313-22. Imam
al-I:laramayn al-Jllwayni (d. 478/1085) says thai al-Shiin'i's early position was that the solitary Companion opinion
was valid as a legal proof, but that he rejected its validity in his new teaching: Jallil ai-Din aJ-Maryalli. SJlClriz al-
Waraqar fi ｵｾｦｩｬ＠ al-ftqh (Riyadh: MaJetaba al-'Ubaykan , 2001), 205-6. See also the discussion in Arymad l:laJiilii ,
Kirlib al-I)iyli' al-llimi' ｳｨ｡ｲｾ＠ Jam' al-jawlimi', ed. Niidi al-(Aniir, 2 vols. (Cairo: Markaq Ibn aI-'Aniir li-I-Turath,
2004).2: 452-56.
38. AI-Bayhaqi provides chains of Iransmitters and reports in which the following Companions voice this
legal position: 'Umar, 'Uthmiin, 'Ali, and , in the case of injury rather than death , Jbn Mas'iid ; al-Sunan al-kl/bra , 8:
166-68.
39. al-Maward!. al-ljalVi al-kabir, ed. Marymiid Ma\raji et aI., 24 vols. (Beirut: Dar aI -Fikr, (994), 16: 96.
40. Taqi ai-Din ｡ｬＭｉＺｩｾｮＬ＠ Kifliyar al-akhylir fi ｾｬｑ＠ Ghtiyar ｡ｬＭｩｫｨｲｾＬ＠ ed. Muryammad Haykal (Cairo: Dar al-
Salam, 2005), 567 .
41. Ibn al-Mulaqqin. 'Ujlilat al-mubraj illi rawJih al-Minhtij, ed. (\zz ai-Din al-Badrani, 4 vols. (Irbid: Dar al-
Kitiib, 200 1),4: 1554. For his discussion of the 'ablidila, see al-Badr al-munir, 8: 488.
42. al-Maward!. a/-Ijawi ai-kahil', 16: 96: al-Ran'i, al-'A ziz, 10: 327; ｡ｬＭｉＺｩｾｮＬ＠ Kifliyar a/-akhylir, 567.
43. Ibn al-Mlllaqqin, al-Badr al-munir, 8: 442; Ibn I:lajar al-'Asqalani, ｡ｬＭｔｫｨｩＮｾﾷ＠ al-(wbir fi rakhrij ｡ｾｬｩ､ｴｨ＠ a/-
Raft'i al-kabir, ed. 'Ali Mu'awwa<;! and 'Adil 'Abd al-Mawjiid , 4 vols. (Beirut: Dar al-Kutub aJ-'I1miyya, 1998).
LUCAs: Gender Inequality in the Shiifi(l Law School 245
However, the Shafi(Is had one additional prophetic f:zadlth at their disposal and they
wielded it frequently. This f:zadlth, which is transmitted from the Companion Mucadh b. Jabal
and, out of all the major Sunni f:zadlth collections, is found exclusively in al-Sunan al-kubra
of al-BayhaqI, puts the legal maxim "the diya of a woman is half [the diya] of a man" in the
mouth of the Prophet without any indication as to the context or occasion on which he
made this weighty declaration. Even though aJ-BayhaqI warns that its chain of transmitters
is not sound (La tathbut), the "Mu(adh f:zadlth" is cited as evidence in the commentaries of
｡ｬＭａｮｾｲｉＬ＠ 44 al-ShirbInI,45 aJ-MaJ:!allI,46 and Abu Bakr al-DimyatI. 47 Despite the fact that this
f:zadith fails to reach the minimal standards of authenticity set by classical Muslim scholars,
it ranks among the favorite proofs of the later Shafi(I jurist-authors.
The third and final category of proof is scholarly consensus (ijmii(). Unlike the earlier
legal expert Ibn aJ-Mundhir (d. 318/930), who regularly identified whose opinions he was
considering prior to declaring consensus on a specific ruling,48 all of the jurists under con-
sideration who employ consensus as evidence merely say something along the lines of, "This
position became agreed upon" or "We know of no disagreement on this issue." It is possible
that each jurist-author is insinuating that enough Companions agreed on this topic so as to
render it a case of consensus, or it might be a reference to the reality that nearly all Muslim
jurists did, in fact, hold this particular opinion. Either way, al-MawardI, al-RaWI, ｡ｊＭａｮｾｲｉＬ＠
｡ｬＭＺｩｾｮｉＬ＠ aJ-BujayrimI, Ibn al-Mulaqqin, and ai-Ram II all declare that the gender inequality
in the case of financial compensation for the loss of life is buttressed by the consensus of
Muslim scholars. 49
Let us evaluate these three categories of proofs. Fortunately, this task is made easier by
Ibn al-Mulaqqin, whose remarkable book al-Badr al-munir not only analyzes the authenticity
of f:zadiths found in al-RaficI's enormous commentary, but also makes an effort to locate all
of the Companion opinions included in al-Sharf:z al-kablr in the classical Sunni f:zadlth lit-
erature. 50 In the case of al-RaficI's list of six Companions who supposedly championed
diya discrimination based on gender, Ibn aJ-Mulaqqin was fruitless in his pursuit of citations
44. Zakariyyii ｡ｬＭａｮｾｲｩＬ＠ Fat!1 al-wahhlib bi-sharl! Manhaj al-!ul/lib, 2 vols. in I (Beirut: Dar al-Ma'rifa, n.d.),
2: 138; idem, Asnli al-ma!lilib, 8: 115. ａｉＭｮｾｩｲ＠ does not explicitly mention this ruling in his less advanced text-
book, TuMat al-!ullab, but he does refer to the male life as "complete" (nafs kamila) in his clarification that the diya
can be paid over three years for the man, but only two for the woman or hermaphrodite; see /fiishiyat al-Sharqiiwi,
4: 221. Likewise. when ｡ｬＭａｮｾｲｩ＠ says that the diya i; twenty camel> (multiplied by five types of camels) for a man,
his commentator al-Sharqawi adds that it is only ten canels of each of the five types for a woman: ibid., 4: 204.
45. Bujayrimi (alii I-Kha!ib, 4: 176.
46. 1aliil ai-Din ｡ｬＭｍｾｩＬ＠ Kanz al-riighibin sharb Minhaj al-!cilibin, found in /fcishiyatli Shihab ai-Dill A!lInad
b. SaWm al-Qalyiibi wa-Shihcib ai-Din A!lI1wd al-Bllml/usi al-mulaqqab (Umayra (ala Kan z al-raghibin, ed. 'Abd
al-La!if 'Abd ｡ｬＭｒｾｭｮＬ＠ 4 vols. (Beirut: Dar al-Kutub al-'I1miyya, 1997),4: 202.
47. Abu Bah Shana al-Dimyii!i./fcishiyat i(cinat al-!cilibin bal/ a/fii; Fatiz ai-1m/in bi-shar!l Qurral alJayill bi-
lIluhimmcil ai-dill, 4 vols. (Cairo: ｍｵｾＡ｡ｲ＠ al-Babi al-J:lalabi, 1938),4: 124. AI-Mawardi also relates it, although he
probably would not have been influenced by al-Bayhaqi due to his seniority; al-/fciwi al-kabir, 16: 96. Since the
/fcilVi is a commentary on al-Muzani's abridgement of al-Shiifi'i' . teachings, al-Miiwardi also includes al-Sha!i'i's
personal opinion that "the diya of a woman is half [the diyal of a man." Surprisingly, none of the other books J con-
sulted for this article explicitly quotes al-Shiifi'i on this issue.
48. See SCOlt C. Lucas, "Abu Bakr Ibn al-Mundhir, Amputation, and the Art of Ijtihcid," International Journal
of Middle East Studies 39 (2007): 351 - 68.
49. al-Miiwardi, al-/fciwi al-kabir, 16: 96; al-Riifi'i, al-'Aziz, 10: 328; ｡ｬＭａｮｾｩｲＬ＠ ASllci al-ma!cilib, 8: 115; al-
ｊＺｬｩｾｮＬ＠ Kiftiyal al-akhyar, 567; Blljayrimi (aW I-Kha!ib, 4: 176; Ibn al-Mulaqqin, 'Ujcilat al-lIlu!lIcij, 4: 1554; Shams
ai-Din al-Ramli, Nihtiyat al-mu!l/aj ita shar!J al-Milllzaj j11-fiqh (aW madhhab al-Imlim al-Shlifi(i, 8 vols. (Cairo:
ｍｕｾｬ｡ｲ＠ al-Babi al-J:lalabi, 1967), 7: 319.
50. Ibn J:lajar's ｔ｡ｬｫｨｩｾ＠ al-!zabir is a useful abridgement of his teacher's al-Badr al-mullir.
of this statement in any classical books for CUthman,51 Ibn cUmar, and Ibn cAbbas, and he
could not find a single report with an unbroken chain of transmitter in the case of CAli. 52
Furthermore, he could only find the opinion of Ibn Mascud in Abu I-Qasim al-BaghawI's
collection of cAli b. al-Jacd's (d. 230/844-45) reports.
Ibn al-Mulaqqin's critique of the two prophetic (wdiths is even more devastating than his
review of the Companion reports. I have already mentioned that he corrected al-Mawardl's
mistake, found as well in the books of al-Rafici and ｡ｬＭＺｦｩｾｮｉＬ＠ that the maxim "The diya of
a woman is half [the diya] of a man" is not found in any narrations of cAmr b.l:fazm's copy
of the Prophet's long "Letter to Yemen." Ibn al-Mulaqqin reports that the only prophetic
(wdlth in the entire Sunni library in which this sentence appears is the "Mucadh hadith"
found exclusively in al-BayhaqI's SUllan and he reiterates that even al-Bayhaqi identified
its chain of transmitters as inauthentic. 53 In short, the evidence that the Prophet ｍｵｾ｡ｭ､＠
explicitly condoned this specific discriminatory position is very thin.
The strongest evidence for upholding the legal equation that '·the diya of a woman is
half [the diya] of a man" is the consensus of the jurists in general and the Shafici scholars
in particular. Only al-MawardI mentions any early scholars who opposed this position, and
he, in fact, divulges a mere two names. Whether or not the Companions as a whole agreed
upon the reduction of a woman's diya is nevel1heless largely iITelevant in light of the chorus
of consensus that simultaneously validated and affirmed this position and, only on occasion,
attempted to attribute it to the Prophet ｍｵｾ｡ｭ､Ｎ＠
Now that we have seen how many Shafici scholars advocated the positions that (I) a man
can be killed in retaliation for having killed a woman; and (2) the compensation for the
death of a woman is half that [or a man, we can address our second question: Did any of
the jurists see a contradiction between these two opinions? The short answer is "yes" for
the authors of the solitary works and "no" for the textbook families.
AI-Ghazali, who has been largely absent from the discussion so far, mentions (but does
not appear to endorse) the following interesting anecdote in his longer legal work, al-WaSif:54
'All said that it is necessary for the close relatives of the deceased woman to pay half of the diya
[if they execute the male killer in retaliation] in order to make the killing of the man equal to her
killing. If a woman kills a man, ['AlI] said, it is not sufficient for her to be killed in retaliation-
the victim's heirs should receive half of the diya in addition to her death.
CAlI's putative opinion has an air of logic to it. If a man's diya is double that awarded to
a woman, then the exchange of a life for a life is unequal from a strictly financial perspec-
tive. Abu ｍｵｾ｡ｭ､＠ al-BaghawI, writing around the same time as al-Ghazali in what is
today Turkmenistan, almost certainly has this opinion in mind when he states, "a man can
be killed [in retaliation] for [killing] a woman, and a woman for a man, and it is not obliga-
tory for her to pay any diya after the retaliatory killing [takes place]."55 Finally, al-RaficI, in
hi large commentary, attributes CAli's putative position cited in al-Wasi! to the Successors
cA!a) b. AbI ｒ｡｢ｾ＠ and al-I:fasan ｡ｬＭｂｾｲＮ＠ 56 Ultimately, the fact that the Imami Shica adopted
51. Ibn al-Mulaqqin's failure in the case of 'Uthman is odd, since we have ,een Lhat al-Bayhaqi includes a report
that support, this position , although he does not quote him stating explicitly that the diva of a woman is half that
of a man.
52. Ibn al-Mulaqqin. al-Badr al-IIl/lIlir, 8: 486-88; Ibn l:Iajar, Talkhi.y al-ill/hir, 4: 75.
53. Ibn al -Mulaqqin, al-Badr al-lIllll/ir, 8: 442.
54. al-Ghazali, al-Wasi!, 6: 277.
55. al-Baghawi. al-Tl.lhdhib. 7: 22.
56. al-Ratj ' i, ｡ｬＭＨａｺｊｾＬ＠ 10: 172.
LUCAS: Gender Inequality in the Sha.pl Law School 247
this logically consistent position probably did much to discredit it in the eyes of the Shafi(is
(as we ll as the other Sunni schools) in the later middle periods of Islamic civilization, since
it is absent from their postclassical textbook families under consideration. 57 Of the major
Shafi(i jurist-authors in our survey, only al-Mawardi offers a clear explanation as to why a
woman is equal to a man in the case of retaliation but sharply inferior in the case of financial
compensation. Fortunately for us, he preserves the arguments of ｡ｬＭａｾｭＵＸ＠ and Ibrahim
Ibn (Ulayya,59 the two scholars who insisted that the diya of a woman must be equal to that
of a man because (I) man and woman are equal with respect to retaliation, so they must be
equal with respect to the financial compen ation that can serve as its substitute; and (2) the
diya is the same for a fetus, regardless of whether it is male or female, so it should be the
same for a man and a woman. 60
AI-Mawardi, as we have seen, argues that ｡ｬＭａｾｭ＠ and Ibn (Ulayya are incorrect and
that the diya of a woman must be half the diya of a man. His arguments are fivefold: (I) the
"Mu(adh ｾ｡､ｬｴｨＢ＠ and the (erroneous) "Letter to Yemen" affirm this position; (2) the opinions
of five Companions affirm this position; (3) consensus; (4) diya and retaliation are two dif-
ferent categories of laws, with diya being a financial transaction and retaliation falling under
the rubric of Ｂｾ｡､＠ procedures."61 In financial matters, such as inheritance, a woman re-
ceives half of what a man receives, so likewise her diya is one-half of the male diya. There-
fore, analogy on the basis of retaliation is erroneous for diya; and (5) it is improper to base
an analogy for the value of diya on the basis of a fetus because both its status of being
alive/dead or male/female is ambiguous, in contrast to adults. 62
We can see that al-Mawardi endeavors to cover all of his bases against this minority
opinion. He makes two rational arguments related to the application of analogical reasoning
(qiyas) in addition to his presentation of the three types of evidence that we found to be wide-
spread in the Shafi(i literature of the past millennium. His argument that diya is a financial
transaction is correct, but, unlike most financial transactions, it only comes about due to a
57. The Shi'i requirement that the female victim's family pays half the male diya if they opt for retaliation
against a male murderer has been reactivated in Iran in the wake of its Islamic revolution; see Haleh Afshar, "Islam
and Feminism: An Analysis of Political Strategies," in Feminism and Islam: Legal and Lilerary Perspeclilles,
ed. Mai Yamani (New York: New York Univ. Press, 1996),201-3: and Shirin Ebadi, Iran Awakenillg (New York:
Random House, 2006), I 12- 18.
58. This is most likcly the Mu'tazili scholar Abu Bakr ｡ｬＭａｾｭ＠ (d. 200 or 20 I /815-17) of Iraq; see Shams
ai-Din al-DhahabL Siyar a'itim al-Ill/ba/a', II th printing, 28 vol>. (Beirut: Mu'assasat al-Risala, 200 I). 9: 402. Ibn
al-Nadim describes him as very pious and favoring 'Ali over the other Companions. He also lists a large number of
titles of his writing, most of which are theological: Ibn al-Nadim , Kiltib al-Fihrisl li-I-Nadim. ed. Reza Tajaddod ,
2nd ed. (Tehran: Marvi Offset Printing. n.d.), 214.
59. There are two Ibn 'Ulayyas: Isma'lI b. Ibrahim b. Miqsam (d. 193/809) and his son Ibrahim b. Isma'lI
(d. 218/833). The former was a widely respected (/{Idilll transmitter, while the latter was a Mu'tazili who engaged
in debatcs with al-Sh1i!i'i in Baghdad and Egypt; see al-Kha\lb ai-Baghdadi, Ttirikh madillal al-saltim, ed. Bashshar
'Awwad Ma'rOf, 17 vols. (Beirut: Dar al-Gharb al-IsHimi, 2001). 6: 512-14. AI-Kha\lb includes a report in his entry
on Ibn 'Ulayya Ie fils that he was "among the gllilmtill of Abu Bakr ｡ｬＭａｾｭＬＢ＠ who, as we have just seen, is the
only other advocate of the equal diya between a man and woman. I am grateful to Ahmed EI Shamsy for alerting
me to the existence of two Ibn 'Ulayyas.
60. al-Mawardi, al-ijliwi, 16: 96.
61. ijadd procedures rclate to a series of a small set of crimes-theft, fornication. false accusation of fornica-
tion. intoxication, banditry, and. sometimes, apostasy-for which corporal penalties are pre cribed and which only
the political authorities can inflict. As we shall see, retaliation is rarely considered in the same chapter as ｾ｡､＠
crimes, since it can be inflicted by the victim's family rather than the political authorities; see Peters, Crime alld
Plllzishmel7l ill Islamic Law, 53-65.
62. al-Miiwardi, al-ijtiwi, 16: 96.
violation of the body, and violations of the body could clearly fall in the realm of (wdd
crimes and procedures. And, while it is true that on many occasions a woman's inheritance is
half that of a man, a woman is actually equal to a man in most types of financial transactions.
His second argument, that a fetus occupies an ambiguous legal status is more compelling,
since even in our contemporary times the status of the fetus remains highly contentious.
Whatever we may think of the quality of al-MawardI's refutation, he must be commended
for preserving the very rare "progressive" arguments in favor of an equal diya regardless of
gender in his comprehensive encyclopedia of fiqh.
SECOND CASE STUDY: FEMALE A 0 MALE TESTIMONY
The well-known position that a woman's testimony as a court witness is equivalent to half
of a man's testimony has elicited considerable controversy in recent times. 63 The Azhar-
educated reformer Taha 1. cAlwani argues that this position violates the important "Qur)anic
principle of gender equality" and that both jurists and exegetes collectively erred over their
interpretation of Qur)an 2:282, which reads in part, "Call in two men as witnesses. If two
men are not there, then call one man and two women out of those you approve as witnesses,
so that if one of the two women should forget the other can remind her."64
cAlwani, along with Khaled Abou EI Fadl and the Moroccan professor Khadija ｡ｬＭｂｩｾｲＬ＠
also criticizes the prophetic (wdllh, found in the prestigious $af:tif:tayn of al-Bukhari and
Muslim, in which ｍｵｾ｡ｭ､＠ says, "[ have not seen anyone more deficient in intellect and
faith than you [women]." The unnamed women request an explanation, which the Prophet
supposedly offered thus: "[Your] deficiency in intellect is the fact that the testimony of a
man is worth [the testimony] of two women, and your deficiency in religion is that you spend
days without fasting or praying (because of the menstrual cycle)."65 According to cAlwani,
"These hadiths and a handful of others have contributed to basic misunderstandings in regard
to the issue of gender equality," and he seeks to invalidate them by arguing that the "intel-
lectual deficiency" in this f:tadlth is categorically irreconcilable with "the Qur)anic principle
of equality between the sexes," and therefore must be incorrect despite having a strong chain
of transmitters (isnad).66
Mohammad Fadel approaches this issue from the angle of legal theory and argues that, in
light of the fact that most jurists considered the properly educated woman qualified to serve
as a mufti and transmitter of prophetic f:tadllh, "these medieval jurists realized that attributing
63. Sec, e.g., Rirrat Hassan, "Feminist Theology: The Chalienge, ror Muslim Women," Critique: Critical
Middle Eastern Studies, 5.9 (1996): 58; Abdulaziz Sachedina, "Woman, Half-the-Man? Crisis of Male Episte-
mology in Islamic Jurisprudence," in Perspectives Oil Islamic La\\', Justice, and Society, ed. R. S. Khare (New York:
Rowman and Littlefield, 1999), 145-60; Anne Sofie Roald, Womell in Islalll: The Western Experiellce (London:
Routledge, 200 I), 139-41: Pieternelia van Doom-Harder. Womell Shapillg Islam: Readillg the Qur'all ill Illdollesia
(Chicago: Univ. of Illinois Press, 2006), 196-97. For a charitable reading of Q 2:282, see Raga' EI- imr. "Women
in Islamic Law." in Femil1ism al/d Islam. cd. Yamani, 95.
64. 'Alwanl, "Testimony of Women." 173-77: Amina Wadud (Qur'all alld Womall, 85-86) offers a similar
argument. The popular Muslim preacher Jamal Badawi uses the equality of female and male testimony in the li'iill
verscs (Q 24:6-9) to underminc the argument that Q 2:282 can support a general rule that discriminates against
female testimony; see Jamal Badawi. Gellder Equity ill Islam (Plainfield. Ind.: American Trust Publications, 1995),
33-37; or online at hup:/lwww.jannah.org/genderequity/equitychap4.html.
65. 'Alwanl, "Testimony of Women," 189-90; Abou EI Fadl, Speakillg ill God's Name, 225.
66. 'Alwanl, "Testimony of Women." 193-94. For a thorough argument based upon classical and modern
sources thatlhis (wdith is forged, see Khadlja al-Bi\ar, Fi l1aqd al-Bukhiiri ... kiina baynallLl Iva-baytl al-l/aqq Ilijiib
(Morocco: Dar al-Nashr al-Maghribiyya, 2003), 61-72.
LUCAS: Gender Inequality in the Shaji(! Law School 249
a general intellectual inferiority to wome n was, within the ex isting structure of Islamic law,
an untenable position ."67 He al so found that several jurists advanced sociological explana-
tions to justify the 2: I ratio of female to male witnesses rather than claiming women to be
epistemologically inferior, and he cites Ibn Taymiyya 's (d. 728/1328) interpretation of
QurJ an 2:282 which undermines its use as a justification for evidentiary discrimin ation
against women in general. In short, Mohammad Fadel appears to be arguing that the clas-
sical discipline of legal theory ＨｵｾＧｬ＠ al-jiqh) has sufficient mechani sms to transform Islamic
law into an egalitarian system, if read correctly.
All of these stud ies have enriched the contemporary discussion over this unambiguous
case of gender inequality and they all promote a more egalitarian articulation of Islamic
law. However, they also ignore the textbook tradition , which presents the most widely dis-
seminated arguments that Muslim jurist-authors advanced for the past millennium to justify
this discriminatory position. Furthermore, these recent studies tend to overlook or downplay
the fact that the jurists of all four Sunni sc hools unequi vocally ban the validity of female
testimony in an array of cases. 68 Thus , in my reading of the textbook tradition of the Shafiei
school, the topic of female testimony is dominated by both the application of the 2: I female/
male ratio and, perhaps more importantly, debates concerning in which field s of law female
testimony is valid at all. In the case of the Shafiei school, male jurist-authors have long
sustained a discourse that bans women from offering testimony in over twenty fields of
Islamic law.
The great doctrinal consistency among Shafieis on female testimony survived over the
centuries despite a plurality of conceptual frameworks in their textbook tradition. For ex-
ample, Abu Shuja e identifies two broad classes of testimony, " Human Claims" and "God's
Claims," and proceeds to elaborate the following six categories: 69
Human Claims U1UqUq al-Mami)

Financial cases: two male witnesses or one male and two female witnesses or one
male witness and an oath;
Other cases of this class: two male witnesses;
Cases to which only women are privy : four female witnesses. 7o
God 's Claims

Fornication: four male witnesses;
All other ｾｷ､＠ crimes: two male witnesses;
Sighting the new moo n of the month of Rama<;lan: one male witness.
67 . Fadel, "Two Women, One Man." Note that Fadel large ly ignores the rich tradition of Shafi'j legal theory
in hi s art icle. As we sha ll see, the Shafi'j schoo l is the most restric ti ve of the four Sunni schools in the sphere of
testimony.
68 . Contrast the partial disqualification of female testimony in Islamic law with the categorical disqualification
of female testimony in Jew ish law; see Moshe Me iselman. Jewish Women ill Jewish Law (New York: Ktav Publi sh-
ing House and Yeshi va Univ. Press. 1978).73-80. Maimonides writes in hi s Mis/mel! Torah, "Women are disqual-
ified as witnesses by biblical law, as it is said At the //Iol/th oj /I Va witllesses (Deut 19: 15). The text emp loys the
masculine, not the feminine gender"; The Code oj Mailllonides, Book Fourteell: The Book oj Judges, tr. Abraham
Hershman (New Haven: Yale Univ. Press, 1949), 14: 100.
69. ｡ｬＭＺｊｩｾｮｪＬ＠ Kijayat a/-akhyar, 695-99. AI-Mawardj also observes thi s dichotomy; al-Hawi al-kabir, 2 1: 7-9.
For more on the topic of ｾｵｱ＠ Allah and /lLIquq al-'ibiid, see Johansen, COlllillgellc), ill a Sacred Law, 200-2 16.
70. Both ｡ｬＭｊＺｩｾｮｪ＠ and al-Kha\ib al-Shirbjnj add that the testimony of two male witnesses or one mal e with two
female witnes es is also valid and preferable (all'lc7) in these cases.
250 Journal of the Americall Orielltal SocielY 129.2 (2009)
AI-NawawT's Minhaj and al-MalTbarT's Fal(1 al-/nu(ln offer a slightly different schema than
that found in Abu ShujaC's textbook, but they essentially agree with its categories: 71
Sighting the new moon of the month of Rama9an: one male witness;
Fornication: four male witnesses;
Financial cases: two male witnesses or one male and two female witnesses or one
male witness and an oath;
Everything else to which men are privy: two male witnesses;
Cases to which women are privy but men are not normally privy: any of the previous
combinations of witnesses or four female witnesses.
From the perspective of these three core textbooks, female testimony appears to be highly
restricted in the ShaficT school. Women are invalid witnesses in four of Abu ShujaC 's cate-
gories and three of those found in the textbooks of al-Nawawi and al-MalTbarT. Even though
two of these categories are in reality just specific cases, the overall epistemology reinforces
the vast superiority of male testimony. A closer look at the core textbooks of al-Nawawi
and al-MalTbarT, along with ｡ｬＭｦＺｩｾｮｔＧｳ＠ commentary on Abu ShujaC's Ghayat al-ikhfi$ar and
al-RaficT's large commentary on al-GhazalT's WcUi:::, reveals more precisely which legal fields
in the ShaficT tradition welcomed female witnesses and which, in addition to fornication and
Illoonsighting, did not.
Table I. Fields of lalV in which the testimony offemale witnesses is valid72

A. Valid with two female witnesses plus one male witness 73
I. Financial Cases Rafi'j (R), Nawawj (N), MaEbarj (M). ｬＺｉｩｾｮｪ＠ (1:1)
2. Terms (ajal) R. N. M
3. Options (khiyar) R, N, M
4. Hire (ijara) R, 1:1
5. Manslaughter R, 1:1
6. Sales R, N, M, 1:1
7. Annulment of sale (iqala) R. N
8. Sale of debt UWlVala) R, N, M
9. Guarantee (f/aman) R, N, M
10. Settlement (')'Ul!l) R. M
II. Loan (qarf/) R, M
12. Usurpation R, J:I
13. Surety (rahn) R, M, J:I
14 . Waqf (endowment) R, M, J:I
15.lqrar 74 J:I
16. Forgiving a loan (iiJra» 75 M
71. Ibn al-Mulaqqin. 'V}a/at al-IIlL/!lla}. 4: 1836-39: al-Ramn, Ni1u7yat al-IIII1!l/ii}. 8: 310--13; al-Dimyli\j,
/jashiyat i'allat al-!alibill, 4: 273-77.
72. The sources ror both lables are: al-Rafi'i, ｡ｬＭＧｫｊｾＬ＠ 13: 48-50; ｡ｬＭｍｾＬ＠ｋ｡ｬｾ＠ a/-riighibin, in /jiishiyatii
a/-Qalyiibi It'a-'Vmaym. 4: 493-95; Ibn al-Mulaqqin, 'V}cllat al-mll!lIii}. 4: 1836-39; ｡ｬＭｉＺｩｾｮＮ＠ KiJiiyat al-akhyiir.
695-99; al-Dimyli\i. Hashiyat i'allat al-tcilibill, 4: 273-77.
73. The following legal fields in this category are found only in al-Rfifi'j's commentary on a/- ｗ｡ｽｩｾＺ＠ Preemption;
injuries that only merit financial compensation; invalidation of a contract; individual installments of a kitaba con-
tract; return of a good due to a defect; financial bequest (al-It'a,liyya bi-/-III{II); prize competition (mllsabiqa); dower;
intercourse of uncertain legality (al-wat' bi-shL/blw); destruction of property (itlc/f).
LUCAS: Gender Inequality in the Shajic1 Law School 251
B. Valid with just four female witnesses

I. Birth R, N, M, I:!
2. Female bodily defects 76 R,N, M, I:!
3. Nursing R,N,M,I:!
4. Virginity 77 R, N, M, I:!
5. Non-virginity (thiytiba) R,M, I:!
6. Menstruation R,N, M, I:!
7. /sTihlti/ 78 R,I:!
Table 2. Fields of law ill which The TesTimony of a felllale wiTlless is Ilel'er l'alid 79
I. ljadd crimes/Retaliation R,N,M,I:!
2. Marriage R, . M.I:!
3. Ra/a 80 R.N.M
4. Divorce 81 R,N, M, I:!
5. Manumission 82 R.M, I:!
6. Conversion to Islam R,N.I:!
7. Apostasy R.N.M , I:!
8. Attainment of maturity R,M.I:!
9. Termination of waiting period 83 R,M , I:!
10. Character evaluation 84 R.N
II. Bequests R,N,M,I:!
12. Delegation (wakei/a) R,N,M. J:I
13. Non-financial iqrtir 85 R,M
14. Death R.N,M,I:!
15. Bankruptcy (i'stir) R,N , M
16. Wife 's claim in k11ll1' R,M, I:!
17. Counter testimony R, N, M
18. Bail (kaftila) R,M
19. Moonsighting R.M
20. Lineage (Ilasab) I:!
21. Partnership (sharika. qirlh/)86 R.M
22. The act of loaning (iqrti(/) R,M
23. Deposit (wad/'a) M
24. Clientage (wala» R, I:!
25. Pardoning retaliation R.I:!
74. Affirmation: the recognition of another person's claim against him ; ｍｵｾ｡ｭ､＠ Rawwas Qal 'aji, Mu'}alll
lughaT al-juqaha' (Beirut: Dar al-Naf1i'is. 1996), 64: Ｂｉｾｲ｡Ｎ＠ £f2. It is clear from the context that this refers strictly
to financial matters.
75. AI-Rafi'i reports disagreement among the Shiifi'is on thb topic; al-'A:i:. 13: 4S.
76. Other than those found on the hands and face. which can be see n lawfully by an unrelated man.
77. AI-Riifi'i and ｡ｬＭＺｉｩｾｮ＠ also add the categories of rilq and 'lam. two types of vaginal defects.
78. Testimony as to the healthy delivery of a baby and its sex: literally. "the crying of a newborn."
79. The following fields are unique to al-Rafi'rs commentary: court verdict (qWla'): guardianship (wi/aya);
ｩＡｾ｡ｬＺ＠ female bodily defects on face and hands.
SO. This is the term for the act of a man taking back his divorced wife during her waiting period.
SI. al-Rafi'i and ｡ｬＭＺｉｩｾｮ＠ also mention thc oaths of i/a' and ;iiJar.
S2. al-Rafi'i and ｡ｬＭＺｉｩｾｮ＠ also mention the procedures of ki/{/ba and ({Idbir.
83. al-MaJibari specifies that this applies to a waiting period that is calculated according to months, implying
that this restriction does not apply whcn the waiting period is calculated by menstrual cycles or childbirth.
84. Arabic: ai-jar!! wa·I-la'dil.
85. al-Malibari ays, "affirmation of anything that requires two male witnesses."
86. al-Ra.fi'i mentions that al-Ghazali. in his Wasil. accepted the testimony of one man and two women in part-
nership cases: al-{Azi:. 13: 48.
252 Journal of (he American Oriental Society 129.2 (2009)
These lengthy lists raise several major questions about the nature of gender inequality in
the ShaH! school that extend far beyond the 2: I female/male ratio discussed in most of the
secondary literature. How do these jurists justify the validity of the testimony of two female
witnesses with one male witness in financial cases? Why is female testimony invalid in most
non-financial cases? Why must there be a minimum of four female witnesses if no men are
present and the case is one to which only women tend to be privy? Why is a single male
witness with an oath acceptable in financial cases, but two women and an oath is never valid
in any case? What happens in certain special cases, like theft, that involve both property of
value and a corporal ｾＱｑ､＠ punishment? And finally, are there any cases in which female
testimony is stronger than male testimony?
Most of the Shlifi<! jurist-authors marshal Q 2:282 as evidence that women's testimony
is valid in financial cases. 87 Despite the clause, "If two men are not there, then call one man
and two women," which could be interpreted to restrict female testimony to cases in which
two men are not present, the jurists agree, on the basis of consensus, that female testimony
is valid in financial cases at all times, regardless of the number of available men. Unlike the
case of diya, this case serves as an example as to how consensus can expand the rights of
a woman instead of restricting them.
The Shlifi<I jurist-authors are relatively consistent in their strategies for disqualifying
female testimony in most non-financial cases. 88 Their primary tool for achieving this task
is analogical reasoning (qiyas) from the following four texts:
I. "And so, when they are about to reach the end of their waiting period, either retain
them in a fair manner or release them in a fair manner. And let two upright persons (dhaway
Cadlin) from among your own community witness [your decision] ...."89
2. "Let there be witnesses between you when death nears and you make bequests: two
upright persons (i(hniin dhawii Cadlin) from among your people, or two other persons if you
are on the road ...."90
3. AI-ZuhrI said: "The established SUlllla of the Messenger of God is that women's tes-
timony is impermissible in the cases of ｾ｡､＠ crimes, marriage, and divorce."91
4. The Prophet said: "Marriage is only valid with a guardian and two upright witnesses
present."
87. ｡ｬＭ［ｉｩｾｮＬ＠ KiJaya/ al-akhyar, 696; Blljayrillli 'ala I-Kha!ib, 4: 555; Ibn al-Mulaqqin, 'Vjalat a[-IIll/!uaj, 4:
1837; Zakariyya ｡ｬＭａｮｾｲｩＮ＠ Fat!1 al-wahhlib, 2: 222; Ibn l;Iajar al-I-Iaytami, 7lt/ifat al-I1It/!uaj bi-shar!l a/-Minhtij,
found in the margin of /:fall'ashi al-Shirll'alli l>"a-Ibll Qasilll al-'Abbiidi 'ala 7lliifat al-lIlll/ua}, 10 vols. (Beirut: Dar
ｾ｡､ｩｲＬ＠ n.d.), 10: 247; al-Ramli. Nihtiyat a/-IIlIl!lIa}, 8: 311; al-Khalib al-Shirbini, MlIghni al-IIlt/(lIa} illi ma'riJat
ma';;lIi alfa; al-Mirlha}, ed. 'Ali Mu'awwa<;! and 'Adil 'Abd al-Mawjud , 6 vols. (Beirut: Dar al-Kutub al-'I1miyya,
1994).6: 367; al-Dimyali, /:fashiyat i';;lIllI al-!alibin. 4: 274; al-Mawardi. al-/:fal\'i al-kabil', 21: 8; Abu ｉｳｾ｡ｱＬ＠ al-
Mllhadhdhab, 5: 631.
88. There is consensus across all of the schools that female testimony is inadmissible in cases of ｾ｡､＠ crimes
and retaliation , so in this area of law the Shiifi'is are unexceptional. In fact, al-Mawardi identifies 'Ala' b. Abi ｒ｡｢ｩｾ＠
and l;Iammiid b. Abi Sulayman as the only two Muslim scholars who admitted female testimony in cases of (wdd
crimes; al-/:fiill'i al-kahir, 21: 7.
89. Qur' an 65:2. The jurist-authors normally just allude to this verse (and the following one) with the phrase
"the clear proof (lIa.y.y) in cases of divorce, m}'a, and bequests."
90. Qur'an 5: 106.
91. Ibn al-Mulaqqin and AbO ｉｳｾ｡ｱ＠ relate a version of this hadith that does not mention either marriage or
divorce.
LUCAS: Gender Inequality in the Shafter Law School 253
Since these cases in which female testimony has been excluded share the common feature
that they are non-financial transactions to which women are not normally privy, women, on
the basis of analogy, are excluded from the legal domains cited above in Table 2.
It is necessary to highlight three unwritten assumptions at work in the Shafi<I analogy
based on these texts. First, in the two Qur)anic verses and the marriage f:tadlth, the gender
of the witnesses is not specified, although the default masculine dual form is used. Linguis-
tically, the Arabic words dhaway (adlin and ithnan dhawa (adlin could refer to men or
women, a point that Amina Wadud has made in other contexts in Qur}an and Woman. 92
The second assumption is that marriage, divorce, and bequests are non-financial transactions,
even though they clearly involve property, such as the dower. Finally, the one (wdlth ex-
plicitly banning female testimony from (wdd crimes, marriage, and divorce has a defective
chain of transmitters and, as such, should not be admitted as evidence according to many of
the works of Shafi<I legal theory.93
Our jurists' choice of evidence becomes clearer from al-MawardI's presentation of the
dispute between the early jurists over the validity of female witnesses in most non-financial
cases. While Malik and al-Awza(I joined al-Shafi(I in opposing the validity of female testi-
mony in the cases of marriage, divorce, manumission, delegation, and bequests, Abu I:IanIfa,
his companions, and Sufyan al-Thawri accepted female testimony for them on the basis of
Qur)an 2:282. AI-Mawardi defends the Shafi(i exclusionary position with the following
arguments: 94
1. God specified two men in the Qur)an in cases of divorce, taking back one's divorced
wife (ra/a), and bequests (Proofs I and 2, above).
2. Al-Zuhrl's f:tadlth (Proof 3, above).
3. Delegation and bequests have a financial component, but their primary aim relates to
authority (wi/tiya), from which women are excluded.
4. Qur)an 2:282 only applies to financial cases and cannot be employed for other cases
in an analogy.
Al-Mawardi's argument against the ｾ｡ｮｦｩｳ＠ relies to a great extent upon assumptions
rather than actual texts. Clearly, the I:Ianafis do not accept his narrow interpretation of the
Qur)anic verses at stake in this debate. Furthermore, al-Mawardi lacks any support from
the vast collection of prophetic (wdlths, and acknowledges that the Zuhri f:tadlth has a de-
fective chain of transmission. However, in a polemical move, he states that I:Ianafi jurists
accept the validity of a f:tadlth that has this specific deficiency. In other words, the mursal
Zuhri f:tadlth is inadmissible as a proof for the Shafi<I position, according to the principles
of many Shafi(I legal theorists, but it is admissible as proof against the I:Ianafi position,
according to the principles of the I:Ianafi school. 95 This polemical use of the text explains
92. Wadud, Qur)an and Woman, 4- 7.

93. This ｾ｡､ｩｴｨ＠ is lacking a Companion in its isntid and is thus a l1!ursal badirlz. The Shii!i'j jurists were divided
over the authority of l1!ursal !!adifhs as evidence; for Sayf ai-Din al-Amidrs embrace of them, see Weiss, The
Search for God's Law, 325- 26; for al-Juwayni's rejection of non-Companion mursal b£ldiflis (with the exception of
those from Sa'jd b. al-Musayyab), see ｡ｬＭｍｾｩＬ＠ Shar!l al- Waraqtil. 211-13. AI-Subki also rejects the authority of
mursal reports; I:l alii Iii , Kiftib al-I)iyti) al-ltimi', 2: 245.
94. al-Mawardi, al-f:Itiwi al-kabir, 21: 9- 10.
95. In other words, the I:lanafis have consistently accepted the validity of l1!ursal ｾ｡､ｩｦｬｺｳ［＠ see Kamali, Prin-
ciples, 108- 10.
254 lournal of the American Oriental Socie(v 129.2 (2009)
why it appears so frequently in later ShaficI textbooks, despite its glaring deficiency.96
However, the real division between the ShaficIs and i:fanafis, as the famous i:fanafi jurist
Burhan aI-Din al-MarghInanI (d. 593/1196-97) observed, was that the l:Ianafis begin with the
assumption that female testimony is valid unless evidence to the contrary emerges, whereas
the Shafi<Is assume that female testimony is invalid unless evidence to the contrary is
found. 97
One peculiarity of the Shafi<I school that merits closer examination is the requirement
that in the absence of male witnesses a minimum of four female witnesses must testify.
While this number may appear initially as a simple case of the 2: I female ratio carried to
its logical conclusion, al-MawardI's discussion of this topic demonstrates that most early
jurists did not adopt this analogy. He identifies the following five positions (madhtihib) on
the minimal number of female witnesses in cases for which no men are present: 98 (I) at
least four female witnesses (al-Shafi<I and <A!a) b. AbI Raba\:l); 99 (2) at least three female
witnesses (Anas b. Malik and <Uthman al-BattI); 100 (3) two women (Malik and Sufyan al-
Thawr!); (4) two women or one midwife (al-l:Iasan ｡ｬＭｂｾｲｩ＠ and Ibn <Abbas); and (5) one
woman. except in one case 101 (Abu l:Ianifa, [Ibn l:Ianbal] 1(2).
This range of opinions is striking and appears to have less to do with explicit texts or
sociological circumstances but, pace Mohammad Fadel, more to do with the epistemo-
logical value these jurists assigned to women. In his attack upon Abu l:IanIfa's position, al-
Mawardi makes the revealing argument that, "[female] testimony is invalid in cases where
male testimony is valid, and a single man's testimony is invalid, so how could a single
woman's testimony be valid, in light of her weakness (ma(a ｾＯ｡ＧｬｩｨＩ＿Ｂ＠
The textbook tradition of the Shafici school manages to muster only a single text in support
of the position that female witnesses are acceptable in cases to which men are not privy. 103
This text, cited in the books of al-Rafi<I, Ibn al-Mulaqqin, ｡ｬＭａｮｾｲｩＬ＠ al-ShirbinI, and al-
MalibarI, is yet another ZuhrI ｾｬｃｉ､ｴｨ＠ with a deficient isntid that echoes the previous one:
"The established Sllnl1a is that women's testimony is permissible in everything to which
men are not privy." 10-1 AI-Kha\ib al-Shirbini, among others, points out that all of the cases
96. Ibn l;Iajar al-Haytami state .. thi .. explicitly in 7iliifol ol-lIIublii) ( 10: 249): \\"o-hiidhii !lIIjja 'illda Abi /follija
lI·o-hllll·a-I-lIIl1khiilij. AI-Ramli makes the identical comment in NihiiY{I/ al-lIIuhlii}. 8: 3 I 2.
97. Burhan ai-Din al-Marghinani. al-Hidiiya .I'harl, Bidl/yal al-lIIul}/adi. 4 vols. in 2 (Beirut: Dar al-Kutub
al-'lImiyya. 2000). 4: 130. AI-Mawardi also recognized this fundamental difference between his school and the
l;Ianafis (as well as Sufyan al-Thawri): al-/fiill'i al-kabir. 21: 9.
98. al-Mawardi. al-/iiill'i al-kabir. 21: 22-23.
99. AI-Shafi'i's opinion is found in al-Mu7ani's Mukhlil .)·ar: interestingly. al-Shafi'i supports Ihis position by
stating that 'A\a' was of this opinion. ralher than the 2: I ratio suggested by Q 2:282.
100. 'Uthman al-Batti's argument is that the requirement in Q 2:282 of two women with one man makes it nec-
essary to substitute at lea,t one woman for Ihe man who is ab,ent: thus he arrives at a three-woman minimum.
101. The exception is the case of a divorced woman who gi\cs birth.
102. AI-Mawardi doe .. not mention Ibn l;Ianbal. but later Hanbalis attribute thi s position to him and accept a
single woman's testimony in a small number of cases: see Ibn Qudama (d. 62011223). al-Muglllli Ii-Ibn Qlldiima.
10 vols. (Cairo: Maktabat al-Qahira. n.d .), 10: 136-37; ａｾｭ｡､＠ b. 'Abd Allah al-Ba'li (d. I 189/1775), ＨＢＭｒ｡ｬＧｾ＠ al-
nodi shorb Kiifi al-mllbtadi ([Cairol: al-Ma\ba'a al-Salafiyya. n.d .), 529.
103. AI-Bayhaqi devotes a chapler in al-S/man al-kllbra (10: 254-55) to discrediting narrations that depici
the Prophet and 'Ali accepting the ｬ･ｾｩｭｯｮｹ＠ of a single midwife (qabila). This prophetic !Jadith from the COI11-
panion l;Iudhayfa is cited as evidence by Ibn Qudama and al-Ba'li for their position (see the previous footnote for
references).
104. al-Ran'i, ｡ｬＭＧａｾｩＮ＠ 13: 48-49: Ibn al-Mulaqqin. 'Ujc71at al-mll!lfiij. 4: I838: ｾＯ｡ｳｨｩｹｬ＠ al-Sharqiiwi. 4: 498;
Bujayrimi 'aW I-Kha!ib, 4: 556: al-Dil11yu\i./f(/shiya( i'iinat al-!(/liMn. 4: 276. Ibn al-Mulaqqin could only find this
report in the MUJwlllq{ of Ibn Abi Shayba; al-Badr al-mllnir, 9: 675.
for which female testimony is valid are based on an analogy from this (wdith. 105 Note that
this Zuhri (wdlfh says nothing about the minimal number of female witnesses in cases devoid
of men; al-Rfifi<i, ｡ｬＭＺｉｩｾｮＬ＠ and Ibn al-Mulaqqin clarify that four women are necessary due
to the equation that the status (man::.ila, maqam) of two women is equal to that of a single
man. 106 While there certainly are sacred texts that can be used to justify this position, what is
most striking is that none of the surviving Sunni schools of law appears to have adopted the
2: I ratio as categorically as did the Shfifi<is.
The low esteem for which Shfifi<i scholars hold female testimony reaches its nadir in the
case of the invalidity of two female witnesses plus an oath (yamin). 107 While the l:Ianafi
school considers the testimony of one man with an oath impermissible in all cases, both the
Shfifi<is and the Mfilikis permit it in financial cases in which the testimony of a man with
two women is valid. The Mfilikis go one step further, according to al-Mfiwardl, and, follow-
ing the 2: I ratio, allow the testimony of two women plus an oath. 108 Given the Shfifi<i jurists'
fidelity to the 2: I ratio in the restricted cases in which women can testify at all, it is not im-
mediately obvious why they adamantly reject the validity of two female witnesses and an
oath. 109 What is their evidence? Here the few jurists who address this topic do not have a
Zuhri f:zadith to help them. Rather, they adopt one of two arguments. AI-Shirbini, ｡ｬＭａｮｾｲｪＬ＠
and ｡ｬＭｄｩｭｹｦｾ＠ all state that the reason two women plus an oath is invalid is due to the
absence of a man, since the combination of two women plus a man is valid solely because
of the male presence in the equation. I 10 In other words, once one removes the male presence
in financial cases, the two female witnesses do not actually equal the status of a single man.
Ibn l:Iajar al-Haytami and al-Ramli are even more candid in their commentaries, as they state
that women "have a weakness (r;fa'i)," which undermines their testimony when it is accom-
panied by an oath. III It is here that the epistemological biases of our jurist-authors manifest
themselves most nakedly.
While jurists of the ShfifiCj school adopt a firm position on the issue of female testimony,
they are neither alone in all of their assumptions nor are women always the losers in cases in
which they challenge men. All of the major Sunni school prohibit female testimony in cases
of the f:zadd crimes and, while most of our Shfifici jurist-authors cite the first Zuhri badlth to
justify this exclusion, al-Mfiwardi acknowledges a deeper and probably more widespread
reason: female testimony contains an intrinsic element of doubt (shubha) and there is a
famous prophetic f:zadifh that states, "Desist from applying the (wdd penalties if there are
any doubts in the case." 112 Therefore, the Shfificis are hardly unique in arguing that if two
105. al-Khalib al-Shirbini, Mughni al-II/II!lltij, 6: 369; Bujayrillli 'alii I-Kha!ih, 4: 556.
106. al-Riifi'i, al-'Aziz, 13: 49; ｡ｬＭｈｩｾｮＬ＠ Kijiiyat al-akhyiir, 698; Ibn al-Mulaqqin, 'Ujiilut al-lIlullliij, 4: 1838.
107. al-Mawardi. al-/f(llI'i al-kabir, 21: 10-11.
108. The later Maliki school appears to maintain this acceptance of the testimony of two women with an oath;
see ｍｬｉｾ｡ｭ､＠ b. ａｾｭ｡､＠ al-DasUqi (d. 1230/1815), /ftishiyat al-Dasaqi 'alti I-Sharb al-kahir, ed. ｍｬｉｾ｡ｭ､＠
Shahin, 6 vols. (Beirut: Dar al-Kutub al-'lImiyya, 1996), 6: 94. See also Abu I-Barakat al-Dardir (d. 120111786),
al-Sharfl ｡ｬＭｾｧｨｩｲＬ＠ ed. ｍｵｾ｜｡ｦｩ＠ Kamal ｗ｡ｾｦＱＮ＠ 4 vols. (Cairo: Dar al-Ma'arif, n.d.), 4: 268.
109. The l:Ianbali jurists also consider the te timony of two women and an oath to be unacceptable: Ibn
Qudama, al-Mughni, 10: 135: al-Ba'ii. al-Raw!1 al-nadi, 529.
110. Li-'adam wuriid dlullika wa-qiyiilllllllllllul lIlaqlllll rajul Ii ghayr dlullika Ii-wuriidi"i; al-Shirbini, Muglwi
al-lIlu!lItij, 6: 370; Bujayrimi 'alii I-Khatib , 4: 557. See also ｡ｬＭａｮｾｲｩＬ＠ Fat!1 al-wahhtib, 2: 223; al-Dimya\i,
ｾＯｴｩｳｨｹ｡＠ i'anat al-!alibin, 4: 274. The l:Ianbali Ibn QlIdama makes the same argument, adding that female testi-
mony is inherently "weak"; al-Mughlli, 10: 135.
III. Ibn l:Iajar al-Haytami. TuMat al-mu!l/iij, 10: 252; al-Ramli, Nihayat al-lIlll!llaj, 8: 313.
112. Peters, Crime and Punishment, 21-23. This !wdith does not appear in the canonical collections: for a dis-
cussion of its narration. see al-Bayhaqi, ai-SuI/an al-kubrti, 8: 413-15; Ibn l:Iajar, ｔ｡ｬｫｨｩＮｾ＠ al-!wbir, 4: 160-62.
women and a man witness the theft of something of value in a state of guarded custody, the
property must be returned to the owner, but the thief's hand may not be amputated, since
female testimony cannot be used in (wdd cases. 113 [n an ironic twist. the jurists' invalidation
of female testimony in cases leading to corporal penalties makes it more unlikely that these
severe penalties will be inflicted upon criminals, although this reduction comes at the high
cost of the devaluation of the epistemological status of female authority.
There is one final case that should caution us against assuming that the deck has always
been stacked against women, even in the ShaNi school. AbD ｛ｳｾ｡ｱ＠ ai-Shirazi, al-Ghazali.
and al-Nawawi (in the Minhaj) address the rather unlikely scenario in which four men testify
that a woman has committed fornication. but four women testify that this woman remains
a virgin. 114 Here we have a showdown between the male-only domain of (1Qdd crimes and
one of the few legal spheres to which only women (and male doctors) are privy. Ibn al-
Mulaqqin. ｡ｬＭａｮｾｲｩＬ＠ and al-Ramli all explain that the testimony of the four women intro-
duces a doubt (shubha) into the case, and thus obligates the judge to desist from applying
the corporal (1Qdd penalty, even though the male witnesses observed the crime. 115 Is this a
safety valve to prevent an unmarried woman who is accused of premarital sex from being
convicted and publicly flogged? Or is it merely the logical extension of the legal principle
that doubt undermines the application of all corporal penalties? Either way, this case shows
that even in their severely restricted capacity as witnesses, women in the Shafici legal dis-
course could wield power and undermine male testimony in the sensitive domain of sexual
crimes.
CO CLUSION
This article began with the simple question of how best to analyze the status of women in
Islamic law. I argued that scholars who address this topic from the perspective of normative
legal writings should consider directing more of their attention to textbooks and commen-
taries on positive law within a single law school than to books on legal theory and fatwa
collections. These former texts have long served and continue to serve as the curriculum
for aspiring jurists, judges, and jurisconsults, and thus influence the ethical and legal perspec-
tives on a host of issues, including gender. I also proposed a list of twenty-eight key books
in the Shafici school, many of which have proven influential wherever the school has taken
root, and suggested ways in which this list could be reduced to a more manageable sample.
The Shafici positions on the compensation for the killing of a woman and female testi-
mony evinced impressive stability over the eight centuries of books surveyed in this article.
Despite the consistency of these positions, the arguments and texts used to justify them fluc-
tuated over time and between scholars. 116 This unstable body of evidence did exhibit a few
113. al-Miiwardl. a/-/:Iiiwi a/-kahir. 16: 323 ; Abu Isl)aq . a/-MII/Illd//{/hah. 5: 632; al-Rafi'l. ｡ＯＭＨａｾｩＮ＠ 13: 51;
｡ｬＭＺｉｩｾｮＮ＠ Kifiiyal a/-akhyiir. 696; Ibn al-Mulaqqin. (Ujii/al a/-mllltilij. -I: 16-17; ｡ｬＭａｮｾｲｩＮ＠ Fa//I a/-I\·ahltlib. 2: 163:
al-Ramli. Ni/Il/ylll a/-IIlIl!lIlij. 7: -165.
114. Abu ｉｳｾ｡ｱＮ＠ a/-Mllhadhd/Illh. 5: 630; al-Riifi'i, ｡ＯＭＨａｾｩｾＮ＠ II: 153. See the next footnote for references to the
commentaries on al-Nawawi's Mil/ltlij.
115. Ibn al-Mulaqqin. (Ujii/al a/-IIlIl!lIlij, 4: 1647: ｡ｬＭａｮｾｩｲＮ＠ FiII!1 a/-\\·ahlIl7b. 2: 163: ai-Ram Ii. Nihliyal a/-
1II11!1/(/j. 7: 465.
116. A contemporary Iraditionali,1 scholar residing in Egypl recently suggested to Jonathan Brown-to whom
I am grateful for sharing this anecdote-that the reason for the male diya being double that of the female diya is due
to a man's greater earning power rather than any inherent superiority of his gender. It would be interesting to know
how far back this sociological argument date,. since I did not come aero .... a trace of it in any of the works cited in
this study.
significant features that merit serious consideration by contemporary individuals struggling

to reform the Islamic legal schools in a more egalitarian manner.
The first finding is the predominance of (wdlths with defective chains of transmitters in
the textbook commentaries of the school that has a reputation for championing sound (wdifh.
The fact that the "Mu(adh I:zadith," in the case of compensation, and the two Zuhri (lCldlths,
in the case of female testimony, feature prominently in Shafi(i commentaries indicates that
these jurists freely deviated from the school standards established in their theoretical works.
It also suggests that contemporary efforts, such as those by Fatima Mernissi, Khadlja ｡ＱＭｂｩｾｲＬ＠
and Taha (AlwanI, to undermine certain discriminatory legal positions by demonstrating that
I:zadlths in their support could not possibly have been the words or practice of MuJ:!ammad,
do not actually threaten the hardened positions of Sunni legal schools, which have been
justifying these rulings on the basis of inferior I:zadiths for centuries.
A second finding is that Qur'anic interpretation can playa greater role in a law school's
opinion than the actual injunctions found in the revelation. In the case of retaliation, Shafi(j
jurists ignored or avoided the plausible interpretation of Qur'an 2: 178 that a man could
not be killed in retaliation for killing a woman. The consequences of rival interpretations of
the three Qur'anic verses pertaining to witnesses proved to be even starker. We saw that the
twelfth-century I:Ianafi jurist-author al-MarghjnanI was accurate when he stated that the
I:Ianafis read Qur'an 2:282 as allowing female testimony unless evidence to the contrary is
brought forward, while the Shafi(is read the same verse as restricting female testimony to
financial cases, unless evidence to the contrary is produced. Many Shafi(I jurists considered
Qur'an 5: 106 (bequests) and 65:2 (divorce/raj'a) to support their position, while it is clear
that the I:Ianafis were not swayed by this evidence.
A third important finding is that the legal instruments of consensus and analogical reason-
ing play major roles in sustaining and expanding (discriminatory) positions in Islamic law.
The strongest piece of evidence for setting the rate of compensation for the loss of a
woman's life at half of the value of a man's life was neither a Qur'anic verse nor a prophetic
utterance, but rather the agreement of the jurists (with only two exceptions). Likewise, the
Shafi(j jurist-authors established a broad consensus about the various combinations of wit-
nesses that were acceptable across the five or six different categories of cases. For example,
they all agreed that a male witness with an oath is valid in financial cases, but that two
female witnesses with an oath are invalid in all cases. Analogical reasoning also played a
major role in the case of testimony, as the ban against admission of female testimony in the
overwhelming majority of legal fields listed above in Table I and 2 was derived solely from
analogical reasoning and reinforced by the consensus of Shafi(j scholars. The complicity of
consensus and analogical reasoning in maintaining and justifying gender inequality suggests
that the literature on Sunni legal theory, which grants consensus and analogy their authori-
tative power, might be a far less useful tool for alleviating gender discrimination than a few
contemporary scholars, such as Khaled Aboll EI Fadl and Mohammad Fadel, have pro-
posed in their writings. 117
Finally, the flagrant sexism of the male juristic class is on full display in the commentaries
on the core textbooks of the Shafi(i school. While Abou EI Fadl and Mohammad Fadel have
I 17. Abou EI Fadl does recognize that the purpose of ijmo' is lO "Iimitthe indeterminacy inherent in the juristic
concept of authority"' (p. 64). but he does not, in my opinion, indicate its power and complicity in preserving gender
inequality among the classical Sunni jurists whom he admires. Rather, the core problem he identifies is what he call
the "Wahhiibj methodology."' which yields a "definitive. singular determination," valid for eternity, for each legal
problem and consequently robs traditional Muslim jurisprudence of its "subtlety and richness"; Speaking in God 's
Name. 174.
read works of legal theory in inspiring ways that mitigate their medieval authors' probable
sexism, the textbook tradition provides no such cover. We have observed al-Mawardi, al-
Ramll, and al-Haytami openly say that female witnesses have an inherent natural "weak-
ness"; al-Rafi(i, ｡ｬＭＺｉｪｾｮｩＬ＠ and Ibn al-Mulaqqin state that two female witnesses have the same
status or standing as a single man; and al-Khapb aJ-Shirbini, ｡ｬＭａｮｾｲｩＬ＠ and al-Dimyap claim
that the testimony of two women equals that of a single man only when a man is present
with them. Female testimony is somehow sufficient to force a thief to return his stolen
goods, but insufficient to empower the political authorities to amputate his hand. And, as
we have mentioned on several occasions, all but two jurists agreed that a slain woman is
only entitled to half the compensation that a slain man receives, despite the absence of a
single Qur)anic verse or ｾｬｃｉ､ｕｨ＠ with a sound chain of transmitters in support of this un-
equal position.
It is important that scholars of Islam understand how each Sunni legal school sustains
and justifies its myriad legal positions because the e schools remain the primary institutions
for training religious scholars throughout the Muslim world. The contemporary American
scholar Shaykh Nuh Ha Mim Keller (who happens to be Shafi(l) asserts that "[legal schools
have produced] a body of legal texts that are arguably superior in evidence, detail, range,
and in sheer usefulness to virtually any recent attempt to present Islam as a unified system of
human life." 118 This article provides a framework by which claims such as those advanced
by Shaykh Nuh can be evaluated and the quality of a school's supporting evidence can be
judged. It shows that the path toward greater gender equality in the Shafi(i school requires a
thorough reexamination not only of the texts Muslims hold to be revealed, but of the entire
edifice of legal theory and reasoning that regulates their interpretation as well.
118. Ibn al-Naqjb. Reliallce oj [he Trlll'eller, tL/ed. ｎｩＱｾ＠ I;ii Mjm Keller (Beltsville. MD: Amana Publications.
1999). vii-viii.
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Title: Justifying Gender Inequality in the Shāfiʿ&#

School: Two Case Studies of Muslim Legal Reasoning
Source: J Am Orient Soc 129 no2 Ap/Je 2010 237-58

ISSN: 0003-0279
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Justifying Gender Inequality in The Sha

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Justifying Gender Inequality in the Shafi<j Law School:

Two Case Studies of Muslim Legal Reasoning

hlitu burhiinakum in kunlum ｾｩ､ｱｮ＠

Journal of the American Orienrai Society 129.2 (2009) 237

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

16. By Akram Yusuf al-Qawasimi (Amman: Dar al-NaTa'is, 2003).

II. Textbook Families

B. Abu Shuja( Family

FIRST CASE STUDY:

31. Qur'an 2: 178.

SECOND CASE STUDY: FEMALE A 0 MALE TESTIMONY

Human Claims U1UqUq al-Mami)

God 's Claims

Table I. Fields of lalV in which the testimony offemale witnesses is valid72

B. Valid with just four female witnesses

92. Wadud, Qur)an and Woman, 4- 7.

significant features that merit serious consideration by contemporary individuals struggling

Title: Justifying Gender Inequality in the Shāfiʿ&#

Source: J Am Orient Soc 129 no2 Ap/Je 2010 237-58

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Justifying Gender Inequality in The Sha

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Justifying Gender Inequality in The Sha

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Copyright:

Available Formats

Justifying Gender Inequality in the Shafi<j Law School:

Two Case Studies of Muslim Legal Reasoning

hlitu burhiinakum in kunlum ｾｩ､ｱｮ＠

Journal of the American Orienrai Society 129.2 (2009) 237

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

16. By Akram Yusuf al-Qawasimi (Amman: Dar al-NaTa'is, 2003).

II. Textbook Families

B. Abu Shuja( Family

FIRST CASE STUDY:

31. Qur'an 2: 178.

SECOND CASE STUDY: FEMALE A 0 MALE TESTIMONY

Human Claims U1UqUq al-Mami)

God 's Claims

Table I. Fields of lalV in which the testimony offemale witnesses is valid72

B. Valid with just four female witnesses

92. Wadud, Qur)an and Woman, 4- 7.

significant features that merit serious consideration by contemporary individuals struggling

Title: Justifying Gender Inequality in the Sha&#x0304;fi&#x02bf;&#

Source: J Am Orient Soc 129 no2 Ap/Je 2010 237-58

You might also like

Title: Justifying Gender Inequality in the Shāfiʿ&#