Thursday, May 18, 2017

Advice to some of my pseudo-scholarly interlocutors on FB


Dr. Adis Duderija, Lecturer in Study of Islam and Society, Griffith university 

I have been involved in a number of debates on FB surrounding  my own scholarship, especially in relation to theorizing of progressive Islam since I started  using face-book for ‘academic’ purposes  in 2012/2013 ( 3 years after completing my Ph.D in contemporary Islamic hermeneutics with focus on progressive Islam and neo-traditional Salafism  ).
Some of these experiences have been really helpful in clarifying my own thinking further and I have learnt things I did not know. However, some of the debates have been the opposite. Usually , these involve  young Muslim men with little or no scholarly credentials who ‘critique’ my work in a highly distortive. self-serving ,piecemeal,  and unsystematic and essentially uninformed  manner to basically score an ideological point ( usually against progressive Islam) . This prompted me to write this short blog piece  for such individuals to check whether or not their knowledge on the topics I have been publishing on  for 10 years is sufficient for me to actually take them seriously.

I would also like to mention that some 15 years ago when I embarked on my journey  to academia/scholarship ( I read many academic works at least 5 years prior to that  since the late 1990s)  I was very fortunate to receive some wonderful advice from professor Ebrahim Moosa who highlighted the importance of identifying and  reading the works of the leading scholars in respective disciplines as the first and essential step in the academic /scholarly journey. I have held onto this advice ever since.
In what follows  let me be absolutely clear that this is not about stifling genuine criticism or self-promotion  but ensuring that  the standards of intellectual honesty, factual accuracy ,erudition and scholarship are not swamped by intellectual laziness, lack of erudition ,lack of  respect for scholarship and similar.

My publications straddle several disciplines including the modern study of Islamic law/legal theory/early Islamic history/Islamic theology/Islamic ethics, sunna/hadith and Islamic feminism/gender issue in Islam. I have been publishing on all of them for a decade and have a very distinguished publication record on these topics ( for those who know) .  The scholars ( and their most relevant and important works )  I identify below  have been read properly and referenced in my  publications.
So my friendly piece of advice to my (pseudo-scholar) interlocutors on FB is before you ‘criticise’ myself ( especially if you did not bother actually reading my work) I want you to do a checklist whether or not you are AT LEAST as a bare minimum   familiar with these scholars and their major works  that I have read and cited in my scholarship ( for full list please click here including many  traditionalist scholars). This  does not necessarily mean that I agree with their findings. 

Modern Field of Study
Name of Scholar
Sunna /hadith
H.Motzki, GHA Juynbol, J.Schacht, I.Goldziher, A.Goerke, F.Rahman, Ghamidi, M.Shahrur,Z.I.Ansari, Y. Dutton, Lowry, Joseph, El-Omari, Racha; Brown, Jonathan; Melchert, C; Abd- Allah, U. F.; Abbott, N.;Sezgin;
Islamic legal theory /Islamic law /ethics
Abou El Fadl, Wael Hallaq, M.Kh. Masud, Imran Nyazee, Hashim Kamali, M.Kadivar,A.Souaiaia, Vishanoff, David, A.El-Shamsy, Jackson, Sherman, Zysow, Aron, Wheeler Brannon, Reinhart, A. Kevin, Johansen, Baber; Melchert, C; Anver Emon; Johnston, David L; Ibn Ashur, Tahir;J.Auda;
Early Islamic theology
Madelung, J. van Ess,W.M. Watt, Mourad, Suleiman, Schmidtke, Sabine and Hasan Ansari
Qur’anic hermeneutics/tafsir
Abdullah Saeed, A.Rippin, F.Esack, A.Wadud, S. Taji-Farouki, Abu Zayd N.H., Mumisa, Michael; Neuwirth, A; Achrati, Ahmed
Islamic intellectual tradition in  general ( turath) both classical and modern period
Hassan Hanafi, M. A. Al-Jabiri, Ebrahim Moosa, Farid Esack, M. Arkoun, Soroush, Abdolkarim,Ali Mabrook,Ali A.Engeneer, Afsaruddin, Asma;I. Abu Rabi’i
Islam and gender (from historical/religious/hermeneutics/legal perspective)
Mir-Hosseini, Ziba; Shaikh, Sa’diyya; Chaudhry, Ayesha,Fatima Seedat,Asma Barlas, Amina Wadud; Abdul Kodir, Faqihuddin,F.Mernissi, Marin, Manuela, Bauer, Karen;K.Ali, N.Keddie; Azam, Hina,
Human rights /democracy in  Islam
A.Sachedina, A.Moussali, M.Khan, N.Hashemi, Afsaruddin, Asma.

This is just the most basic guide and list of scholars whose major works you needed to have read  if you want me to take you seriously. Alternatively, I will respond only to  genuine  queries that  demonstrate that you have read and specifically cited and engaged with my work  as I did in this case .Everything else is a waste of time. 

Salam.

Tuesday, May 16, 2017

Problematizing Few Claims in Dr. Brown’s Paper on Sodomy


Dr. Adis Duderija

I would like to briefly critique some assumptions behind some claims made in the article by Dr. Brown on sodomy from the perspective of problematizing the assumed concept of Sunna in the paper, a topic I have been publishing on for a decade.
The concept of Sunna as I demonstrated in my publications   remained epistemologically , and methodologically in dependent of the concept of a sound hadith as per classical ’ulum ul hadith for a period of two centuries or so. In my paper which traces the meaning and evolution in the meaning of the concept of Sunna during the formative period of Islam I conclude as follows:

“At the beginning of this article, two questions that guided its analyses were asked: namely whether the traditional definition of Sunnah that took root and established itself during the post-formative or classical period of Islamic thought reflect the way this term was understood during the preclassical period. The answer, based on our above analyses is a clear ‘no’. We have seen that over a period of some 250 years Sunnah was semantico-contextually and epistemologico-methodologically fluid. Secondly, this article has attempted to explain which mechanisms were responsible for its conflation with an authentic Ḥadīth as defined by the classical ʿulūm al-ḥadīth sciences and when they became apparent. From the above chronological analyses of the concept of Sunnah we can conclude the following. At the time of the Prophet and the first three to four generations of Muslims, the Qurʾān and Sunnah, in terms of their nature and scope, were conceptually seen as one organic whole. In addition to the ʿibadah dimension of Sunnah both of these sources of Islamic thought were primarily seen in ethico-religious and objective or values-based concepts and were reason inclusive. All these aspects of Sunnah could be formulated, preserved and transmitted orally. The concept of Sunnah was conceptually differentiated from that of Ḥadīth may it be in a form of sunnah al-maʿrufah or that of sunnah madiyyah. With the process of what we have described as traditionalisation, this concept of the nature and the scope of the concept of Sunnah (and that of the Qurʾān) underwent important conceptual changes. Severance of the symbiotic link between the Qurʾān and Sunnah occurred, and, over time, its hermeneutical dependence on Ḥadīth-based literature was largely engendered, thus changing conceptually its nature and scope as it was understood during the first three generations of Muslims.239 Secondly, the nature and the scope of the concept of Sunnah was conceptually distorted and conflated with the concept of ‘a post-Shāfiʿī authentic Ḥadīth’ which is how the contemporary Islamic majority mainstream thought continues to conceptualise it to this day.”

Early pre-Shafi’i  Hanafis and Malikis (to the extent we can tell) especially resisted the hadith-based concept of sunna but later on succumbed to it to a lesser or greater extent ( as discussed by various contributors to my edited book on sunna)  for the following reasons that I explain in the introduction section of  my edited volume on Sunna and its Status in Islamic law :

“● the continued growth and proliferation of had ī th ;
● the increasing importance given to ad ī th at the cost of what I have termed the non- ad ī th-dependent concept of sunna that was prevalent in the first two centuries of Islam as explained above;
● the articulation of non-verbally based aspects  of sunna into an individual, sound ( a ih ) ad ī th ;
·         the increased application of ad ī th to Qur ʾā n and sunna sciences such as jurisprudence ( fiqh) , Qur ʾā nic exegesis ( tafs ī r), and legal hermeneutics (u ū l al-fiqh) ;

·         ● the development of hierarchical, legal, hermeneutical models that were entirely text-based (i.e., based on Qur ʾā n and ad ī th ) and the marginalization of non-text-based epistemological and methodological tools of sunna (and Qur ʾā n) such as raʾy (reason-based opinion ), ijtih ā d, isti s ā n ; and

·          
● the idea that sunna (and the Qur ʾā n) are conceptually coterminous with certain ethical values or principles, such as justice or righteous conduct, including the expression sunna ʿ ā dila that was employed by Muslims in the second century AH. “


In a separate article which traces the historical emergence of the concept of a sound hadith I conclude as follows:
“This article attempts to present a brief chronological analysis of the development of the Sunni Ḥadith literature and the concept of an authentic Ḥadith. The article has focused in particular on the question as to what extent the classical definition of the concept of Sunnah can be seen to embody the concept of Sunnah as it was understood during the formative period of Islamic thought. Relevant, recent Western scholarship found in literature was used in order to shed light on this issue. In this context, the extent, importance and nature of Ḥadith literature as well as the developmental stages of an authentic Ḥadith, during the first four generations of Muslims, have been investigated. The findings presented herein suggest that the writing of Prophetic reports probably took place even during the Prophet’s time, although the conditions for its widespread writing, transmission and proliferation were not favourable, not only in relation to circumstances surrounding the Prophet’s life but also on the basis of cultural preferences for oral transmission of knowledge. This led Juynboll to assert that the volume of Ḥadith literature remained very small during the first century. Moreover, its importance during this period of time as source of law against the regional concepts of Sunnah was negligible. A marked growth in the corpus of Ḥadith literature, although still not in its ‘authentic form’, took place from the middle of the second century. It was during this period of transition that an epistemologico-methodological shift in the concept of Sunnah was becoming ever more prominent. Consequently, this resulted in its more frequent semantic association with Ḥadith. However, as Souaiaia demonstrated in relation to Islamic inheritance laws during the formative period of Islamic thought, spanning the first two and one half centuries or so, traditions from the Prophet in form of Ḥadith as defined by classical ʿulum-ul-ḥadith sciences could not alone produce an adequate framing of inheritance laws. As such, even towards the end of the second century, Sunnah and Ḥadith were seen as conceptually different terms. Due to his effort to bring more uniformity into the largely divergent legal theories in various regions of the Muslim empire, Shafiʾi was the first second-century-born jurist to narrow down the concept of Sunnah to that of an ‘authentic Ḥadith’ usually going back to the Prophet. This conceptual alteration in Sunnah provided by Shafiʾi was brought to its logical extreme, accepted and further consolidated by Ahmed ibn Ḥanbal. It is his literal, decontextualised, reason-condemning bilā kaifa (‘without asking how’) approach to ‘authentic Ḥadith’ as sole repository, conveyer and ultimate interpretational tool of Sunnah that is implied by the muḥaddithūn’s classical definition of the concept of Sunnah which did not correspond to the way the concept of Sunnah was understood by the first four generations of Muslims but is still prevalent in the majority mainstream Muslim community.”

The hadith independent concept of sunna is one of the reasons why Hanafis, as noted by Dr.Brown on p.5.  resisted identifying  “liwāṭ as one of the Hudud crimes and set a punishment” due to the disagreement of early Muslim scholars which indicates clearly that had the  specific punishments identified in the hadith with all their variations been part of sunna , early Muslim scholars would NOT have been ignorant of it and /or disagreed so sharply. It is important to note that here we are talking about  a practice,  in actu ( ‘amal)-based element of sunna ( or if you wish the terminology of muhadithun, sunna fi’liyya )which does not need  textual documentation to be known. If indeed these hadith were part of sunna based practices, the early Muslim scholars would have identified them as such. Otherwise, we would need to be prepared to accept that early generations of Muslims did not know what Sunna was which is antithetical  to  Sunni  traditionalist worldview. It is much more likely , as I alluded to in my quote above ( and explain in my article  in some detail) that early Hanafis thought that  the concept of sunna was something independent of sound hadith  (terminology they used was   sunna madiya or sunna al-ma’rufa al-ma’fuza) and were able to reject these hadith regardless of their authenticity. It is worth noting that the early Malikis too had an independent concept of Sunna as it is  demonstrated both in  my article and edited volume  on sunna.

Another statement which is very revealing of Dr. Brown’s lack of adequate unawareness of the dynamics of  the concept of Sunna , it nature and scope in formative Islam and how it  was contested and evolved  over time is that he cites a  work of a muhaddith Al-Darimi as  proof that Sunna overrides the Qur’an and not other way around ( yes, I know other scholars take that view but they all operate within the hadith-based  classical concept  sunna paradigm) . Even if we accepted this  proposition  (which is rejected by  some Muslim scholars on perfectly legitimate grounds as explained in my edited volume on Sunna )  this  statement  assumes that the concept of sunna  that  Al-Darimi  had in mind ( which is that of  what I termed a hadith-dependent concept of sunna  discussed above)  is self-evident and that  it also assumes the classical post-Shafi’i concept of  sunna as alluded to above is somehow   the only  concept of sunna that ever existed  which, of course  is not the case.

As I outlined elsewhere there are other scholars who have theorised the concept of sunna differently from its classical definition including scholars like Ghamidi and his teachers ( who in my view are staying true to early Hanafi position on the question of the concept of Sunna) , Al-Alwani, F.Rahman , M. Shahrur  and myself.
 I have  also argued that we need a paradigm shift in the manner in which sound hadith are used in Islamic theology and jurisprudence away from focus on classical ulum ul hadith methodologies and more on usul ul fiqh, including progressive approaches to usul.

Finally I have made an attempt to identify a new methodology of the nature of the concept of sunna in articles that can be accessed here and here .




Friday, February 17, 2017

What Can We Learn From The Recent Report By Musawah?


Dr.Adis Duderija,Lecturer in Islam and Society ,Griffith University

Musawah (Arabic for Equality) is a Global Movement for Equality in Muslim Family (NGO). It was launched in Kuala Lumpur in 2009. In its very recent report of global dimensions Musawah once again confirmed what was well known both among academics and grass roots activists who work on gender issues in Islam. Namely, the juristic concepts of male authority inherent to (neo)-classical articulations of Islamic law known as Qiwama and Wilaya have, in most contexts, lost their rationale and often do a lot of harm to both Muslim women and men and indeed all those affected by them.
Briefly and generally speaking, in neo-classical articulations of Islamic law men as husbands and/or fathers as a category are given authority, asymmetrical and privileged rights over many aspects of their female folk ( e.g. wives and daughters) including unilateral right to divorce ( Talaq) , custody over children , unilateral right to polygamy, right to marry off minors ( usually girls-marriage to girl minors as young as nine in places such as Saudi Arabia and Iran is still legal), nearly absolute sexual rights and various forms of disciplining (including the physical) on the basis of :
1. Men’s responsibility to provide for their family economically
2. Certain additional gender cosmologies pertaining to the nature of masculinity and femininity in the normative Muslim socio-political and legal order (for details please refer to this open access academic article)
The report frequently highlights the frequent and deep disconnect between the concrete realities of women and men in these Muslim contexts and the classical doctrines of male authority and the harmful consequences this disconnect brings to all affected.
The report entitled “ Women’s Stories ,Women’s Lives: Male Authority in Muslim contexts” brought together researchers and activists from Bangladesh, Canada, Egypt, The Gambia, Indonesia, Iran, Malaysia, Nigeria and The United Kingdom who documented the experiences of fifty five Muslim women with male authority.
The report is part of Musawah’s Global Life Stories Project (GLSP) which is a central element in Musawah’s continuing, multidimensional research programs whose objective is to generate new egalitarian knowledge from within Muslim legal tradition. The GLSP is complemented by a focus on the production of scholarly theoretical knowledge on the topic of male authority in Muslim contexts that has resulted in several edited volumes most recent of which is titled Men in Charge ? Written by prominent Muslim female and male scholars affiliated with Musawah. I attended one of the workshops in Jordan back in 2011/2012 and wrote an academic article on the theoretical efforts of one of its co-directors, Dr. Ziba Mir -Hosseini and her activism with Musawah. The article can be accessed here .
It is beyond the scope of this article to discuss all of the findings of this report. Instead, I will focus on the major themes that are summarized under the heading “Women’s Experiences: A transnational Overview”.
The Major Themes:
The major themes fall under several categories that pertain to: i.) child marriage; ii.) Polygamy; III.) Economic Gender Roles; IV.)Domestic violence and sexual relations within marriage; V.) Divorce and post-divorce rights; VI.) Custody and guardianship of children after divorce
I.) Child Marriage:
In relation to child marriage the report highlights the following trends:
1. Child marriage was often seen as solution to deal with poverty or as a means for creating /strengthening social relations. (p.139)
2. Often there was lack of full consultation with or obtaining of consent from the girls in addition to them being unaware of marriage arrangements. (p.140)
3. Once married girls became part of highly asymmetrical power relationships in the family, were highly vulnerable and were often abused or ill-treated by their husbands, co-wives or in laws. (p.142)
4. Child marriage often had the consequence of termination of girls’ education which had long lasting negative implications. (p.142)
5. Child marriage was in some cases not a result of the initiative of fathers only but also was either proposed, advocated for or at minimally supported by a woman such as the mother, step-mother, and sister. (p.143)
II.) Economic Roles:
In relation to economic roles of genders the report’s main findings are as follows:
1. In all contexts women played important economic roles as economic providers not only for themselves but their children and beyond occupying a variety of low or high skill professions. In addition, women also did a lion’s share of unpaid domestic work. (P.144-145)
2. Most of the time women were kept under the control of their husbands and fathers despite the fact that these individuals failed in their duty to act as providers and protectors. (p.146)
3. Regardless of class of women and their economic role many continued to think that men are /should be the heads of households. (p.146)
III. Polygamy:
In relation to polygamy the report’s findings include the following:
1. Majority of women who became co-wives expressed feelings of surprise, hurt and powerlessness. (p.148)
2. Regardless if they were the first or subsequent wife, polygamous relationship was detrimental them. Polygamous husbands were unable to support the women and their children and were unable to extend equal treatment to all either on financial, emotional or time-based criteria. p.150
3. Minority of women chose to enter into a polygamous marriage mainly due to needing or desiring marriage so that they could gain a level of protection or to become socially acceptable. 152.
IV. Domestic Violence and Sexual Violence Relations within Marriage
With respect to domestic violence and sexual relations within marriage we learn from the report the following:
1. There was presence of various forms of physical abuse extending from minor arguments to frequent and severe beatings. These behaviours were considered in many cases as common and to be tolerated. Escaping violence was often not an option due to fear, stigma or sense of helplessness. p.154
2. Some women suffered verbal, emotional or psychological abuse, p.155
3. “Women were frequently victims of sexual abuse by their husbands in form of forcing sexual intercourse, demanding sexual obedience or withholding sexual relation. These were used by husbands as means of asserting control and dominance. Men were assumed to have greater sexual rights and women were “expected to be obedient and submissive”. p.157
V.)Divorce and Post-Divorce Rights
With reference to divorce and post-divorce rights the report points to the following:
1. The unilateral permission to divorce {Talaq} is granted to men in many contexts. This privilege, in turn, was also used to control women. Talaq also had the effect of sometimes leaving the women “in a state of uncertainty or without a formal record of thedivorce”.p.160
2. In cases when women wanted to initiate divorce proceedings, the process was often lengthy and difficult for two reasons: due to the nature of “procedural requirements in the courts or because their husbands tried to delay the process”. Moreover, women were often in need of third party assistance as to be divorced or had to give up their post-divorce rights in order to do so., p.160
3. In some cases it was relatively easy for women to obtain a divorce procedurally but sometimes with the consequence of having to relinquish certain post-divorce rights. Moreover, the divorce process affected the women emotionally negatively.,p.163.
Vi.) Custody and Guardianship of Children after Divorce:
Finally, in relation to custody and guardianship of children after divorce the report highlights the following:
1. Mothers often had to relinquish some of their non-custody related, post-divorce rights in order to obtain custody of their children after divorce, p.164
2. Many women who did gain custody of their children were not the recipients of child support payments from the fathers and had to “work long hours and in difficult jobs in order to provide for themselves and their children”.,p.166
3. In the majority of cases the father or male relatives had custody of children. p.167
It is clearly evident from the finding of the report that the juristic constructs of Qiwama and Wilaya do not serve the interests of the majority of Muslim families and must be rethought. Some progress in this respect has been made as, for example, in the case of Morocco. However, much resistance to reform in traditionalist Muslim centres of learning and as a result of deeply embedded cultural norms continues to exist. It is hoped that the efforts of Musawah and other similar organizations, both those on documenting the life stories like the report discussed in this article as well as those ever proliferating scholarly and theoretical in nature will speed up the efforts to make equality in Muslim family a reality for the future generations of Muslims, including my own young children. There is space for optimism in this respect.
----
Adis Duderija is lecturer in the study of Islam and society at Griffith University
- See more at: http://www.newageislam.com/islamic-society/challenging-male-authority-in-muslim-contexts--what-can-we-learn-from-the-recent-report-by-musawah?/d/110098#sthash.CO2G2iGs.dpuf

Tuesday, October 18, 2016

ON HIJAB AND AWRAH OF WOMEN AND SLAVES ( from FROM EL FADL’S ‘speaking in God’s name p.481-484)

ON HIJAB AND AWRAH OF WOMEN AND SLAVES ( FROM EL FADL’S ‘speaking in God’s name p.481-484)-reproduced verbatim
There are several material elements that are often ignored
when discussing the issue of ḥijāb or the ‘awrah of women.
These elements suggest that the issue of fitnah might have
dominated and shaped the discourse on the ‘awrah of women,
but they are also informative as to the possible authorial
enterprise behind the fitnah traditions. There are six main
elements that, I believe, warrant careful examination in trying
to analyze the laws of ‘awrah, and that invite us to
re-examine the relationship between ‘awrah and fitnah.
Firstly, early jurists disagreed on the meaning of zīnah
(adornments) that women are commanded to cover. Some
jurists argued that it is all of the body including the hair and
face except for one eye. The majority argued that women
must cover their full body except for the face and hands.
Some jurists held that women may expose their feet and their
arms up to the elbow. Importantly, someone such as Sa‘īd b.
Jubayr asserted that revealing the hair is reprehensible, but
also stated that the Qur’ānic verses did not explicitly say
anything about women’s hair.124 Secondly, the jurists
frequently repeated that the veiling verse was revealed in
response to a very specific situation. As explained above,
corrupt young men would harrass and, at times, assault
women at night as these women headed to the wild to relieve
themselves. Apparently, when confronted, these men would
claim that they did not realize that these women were Muslim
but thought them non-Muslim slave-girls, and, therefore, not
under the protection of the Muslim community. In Medina
society any individual was under the protection of either a
clan or, if the individual was Muslim, under the protection of
Muslims. Therefore, these verses seem to address a very
specific, and even peculiar, historical social dynamic. The
interaction between the text and the text’s social context is not
easily transferable or projectable to other contexts.125
Thirdly, as
noted above, Muslim jurists consistently argued that the laws
mandating the covering of the full body did not apply to
slave-girls.126 In fact, it is reported that ‘Umar b. al-Khaṭṭāb
prohibited slave-girls from imitating free women by covering
their hair. Apparently, Muslim jurists channelled the
historical context of the verses into legal determinations that
promulgated a particular social stratification. However, it is
not clear whether the social stratification addressed by the
Qur’ān is the same as that endorsed by the jurists. Fourthly,
the jurists often argued that what could be lawfully exposed in
a woman’s body was what would ordinarily appear according
to custom (‘ādah), nature (jibillah), and necessity (ḍarūrah).
Relying on this, they argued that slave-girls do not have to
cover their hair, face, or arms because they live an active
economic life that requires mobility, and because by nature
and custom slave-girls do not ordinarily cover these parts of
their bodies. This makes the focal point of the law custom and
functionality. Arguably, however, women in the modern age
live an economically active life that requires mobility and,
arguably, custom varies with time and place.127 In other
words, if the rules prescribing veiling were mandated to deal
with a specific type of harm, and slave-girls were exempted
because of the nature of their social role and function,
arguably, this means that the rules of veiling are contingent
and contextual in nature. Fifthly, several reports state that
women, Muslim or non-Muslim, in Medina, normally would
wear long head-covers – the cloth usually would be thrown
behind ears and shoulders. They would also wear vests open
in the front, leaving their chests exposed. Reportedly, the
practice of exposing the breasts was common until late into
Islam. Several early authorities state that the Qur’ānic verse
primarily sought to have women cover their chests up to the
beginning of the cleavage area. Sixthly, there is a sharp
disjunction between the veiling verses and the notion of
seduction. Seduction could be caused by slave-girls, or could
483
be between woman and man, woman and woman, or man and
man.128 A man could be seduced by a slave-girl, and a
woman could be seduced by a good looking man, yet neither
slave-girls nor men are required to cover their hair or faces.
Does the fact that a particular man might be sexually enticing
to women affect the obligations of concealment as to this
man?
For the six points above see, al-Ṭabarī, Jāmī‘ al-Bayān,
18:93–95, 22:33–34 (mentions a variety of early opinions
including the up to the elbow and the beginning of cleavage
area determinations; also mentions the distinction between
free and slave girls; mentions the historical practice);
al-Nasafī, Tafsīr al-Nasafī (Cairo: Dār Iḥyā’ al-Kutub
al-‘Arabiyya, n.d.), 3:140, 313, (mentions ‘ādah, jibillah, and
ḥājah; women need to reveal their faces, hands, and feet by
custom, nature, and need; mentions the distinction applicable
to slave-girls; mentions the historical practice); al-Jaṣṣāṣ,
Aḥkām, 3:409–410, 486, mentions that slave-girls do not have
to cover their hair; mentions the historical practice); al-Kiyyā
al-Harrāsī, Aḥkām al-Qur’ān (1974), 4:288, 354 (notes
slave-girls do not have to cover their faces or hair); Ibn
al-‘Arabī’, Aḥkām al-Qur’ān (n.d.), 3:1368–78, 1586–87
527
(mentions a variety of details to adornments; discusses the
rule as to slave-girls); al-Qurṭubī, al-Jāmī(1993), 12:152–153,
157; 14:156–157 (mentions that the verse was revealed to
address the harassment of women, and to differentiate
slave-girls from Muslim women; notes the opinion that held
that the verse called for the covering of the bosom area); Ibn
Kathīr, Mukhtaṣar Tafsīr Ibn Kathīr, 2:600; 3:114–115,
(mentions determinations as to the bosom; also notes that free
Muslim women must cover their faces); Abū Ḥayyān
al-Andalusī, Tafsīr al-Baḥr al-Muḥīṭ, 6:412; 7:240–241
(mentions custom, nature, necessity; mentions the historical
practice as to revealing the bosom; mentions the distinction as
to slave-girls); al-Zamakhsharī, al-Kashshāf 3:60–62, 274
(mentions the historical practice, distinction as to slave-girls,
the rules as to functionality and custom, mentions that
covering ought not cause hardship); Ibn al-Jawzī, Zād
al-Masīr fī ‘Ilm al-Tafsīr, 5:377–378; 6:224 (mentions
mashaqqah – hardship); al-Māwardī, al-Nukat wa al-‘Uyūn,
4:90–93, 424–425, (notes the opinion that the purpose of
revelation was to instruct women to cover their bosoms;
mentions the differentiation as to slave-girls); al-Shinqīṭī,
Aḍwā’ al-Bayān, 6:192–203, 586–600 (mentions a variety of
positions; mentions determinations as to revealing the arm up
to the elbow and the view that the point is to cover the bosom;
mentions the historical practice and differentiation as to
slave-girls; author supports covering the face); Ibn Taymiyya,
al-Tafsīr, 6:23, (notes that the law of veiling does not apply to
slave-girls); Fakhr al-Dīn Muḥammad al-Rāzī, al-Tafsīr
al-Kabīr (a.k.a Mafātīḥ al-Ghayb), 23:176–179; 25:198–199,
(mentions al-‘ādah al-jāriyah (the habitual custom) and
functionality as the focal issues in determining what women
ought to cover; mentions the historical practice and the
distinction as to slave-girls); Ibn ‘Aṭiyya, al-Muḥarrar
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al-Wajīz, 4:178, 399 (mentions the determinations as to the
bosom and arm up to the elbow; mentions the rule of
functionality and custom; mentions the historical practice and
the distinction as to slave-girls); al-Suyūṭī, al-Durr
al-Manthūr, 5:45–46, 239–241 (mentions the determinations
as to the arm up to the elbow and the bosom; notes the
discussion regarding the beginning of the cleavage area;
mentions the historical practice and the distinction as to
slave-girls); al-Burūsī, Tanwīr al-Adhhān, 3:57–59, 254–255,
(mentions the determinations as to the arm up to the elbow
and the bosom; mentions the historical practice and
distinction as to slave-girls); Abū Ḥafṣ ‘Umar b. ‘Alī Ibn
‘Ādil al-Dimashqī, al-Lubāb fī ‘Ulūm al-Kitāb, 14:355–358;
15:588–590 (mentions that according to some reports the
verse was revealed to vindicate ‘Alī’s family. Also mentions
that other reports contend that hypocrites of Medina would
solicit women at night. Girls who practiced prostitution would
respond to their solicitation. The verse was revealed partly to
end this practice. Mentions the rule of practice and custom
(mā u’tīda kashfuh), and functionality and rule of necessity;
mentions the distinction as to slave-girls); al-Alūsī, Rūḥ
al-Ma’ānī (1985), 18:140–142; 22:89, (mentions the issue of
functionality and that slave-girls lead an active economic life;
mentions custom, habit, and
nature; mentions the historical practice); al-Ṣāwī, Ḥāshiyat
al-Allāmah, 3:136–137, 288–289 (mentions various
positions).
ON WOMEN’S AWRAH
-it is not used in the early discussion on
women’s attire in prayer. The traditions instead address the
kinds of clothing a woman must wear in prayer, and
distinguishes between the appropriate attire for free and slave
women. Specifically, al-Ṣan‘ānī relates traditions on two
issues. The first issue concerns what a free woman must wear
when praying. Generally, the items for consideration are a
khimār, jilbāb, dir‘ sābigh, and milḥaf Al-Ṣan‘ānī,
al-Muṣannaf 3:128–129, 131, 135; Ibn Abī Shayba,
al-Muṣannaf 2:36–37. See also, al-Māwardī, al-Ḥāwī
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al-Kabīr, 2:169; Ibn Mufliḥ, al-Mubdi’ 1:366; al-Ramlī,
Nihāyat al-Muḥtāj (1992), 2:13–14; al-Bahūtī, Kashshāf
al-Qinā‘, 1:318; Ibn Ḥazm, al-Muḥallā, 2:2:249–250. The
second issues concerns whether a slave woman must also
wear a khimār for prayer? The khimār is generally a garment
that covers a woman’s head. Ibn Manẓūr, Lisān al-‘Arab,
4:257; Ibn Mufliḥ, al-Mubdi’ 1:366; al-Bahūtī, Kashshāf
al-Qinā‘ 1:318. The meaning of dir’ sābigh generally
suggests some type of loose-fitting garment that extends to
one’s feet. The relevant distinction is that a dir‘ does not
necessarily cover a woman’s head. Ibn Manẓūr, Lisān
al-’Arab, 8:81–82; Ibn Muflih, al-Mubdi’ 1:366; Lane,
Arabic-English Lexicon 1:871–872. Jilbāb refers to a garment
that is larger than a khimār and generally covers a womans
head and chest area, but may also cover her entire body. In
some cases it is used as a synonym for khimār; and in others
for an izār. Ibn Manẓūr, Lisān al-‘Arab, 1:272–273. And a
milḥaf is a blanket (dithār) or cover which is wrapped over
other clothes. Ibn Manẓūr, Lisān al-’Arab, 9:314. Al-Ṣan‘ānī
reports that the Prophet said that menstruating free women
must wear a khimār, otherwise their prayer will not be
accepted. Al-Ṣan‘ānī, al-Muṣannaf 3:130, 131; Ibn Abī
Shayba, Kitāb al-Muṣannaf 2:39–40. The reference to
menstruation is generally regarded as a reference to adulthood
or the age of majority. Al-Marghīnānī, al-Hidāya, 1:43.
Women who are not adults are not necessarily subject to this
requirement. Al-Ṣan‘ānī, al-Muṣannaf 3:132. In another
tradition, a woman is supposed to wear a khimār, a dir’ and
an izār, although there is some countervailing traditions
against this position. Ibn Muflih, al-Mubdi’ 1:366. Some
traditions suggest that an acceptable dir‘ must be long and
loose enough to cover the appearance of a woman’s feet,
although without a khimār, it is insufficient. Al-Ṣan‘ānī,
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al-Muṣannaf 3:128; Ibn Abī Shayba, Kitāb al-Muṣannaf 2:36.
One tradition relates that ‘āisha was seen wearing during
prayer a garment around her waist (mu’tazirah), a dir‘ and a
thick khimār. Al-Ṣan‘ānī, al-Muṣannaf p. 129. On the other
hand, Umm Ḥabībah, a wife of the Prophet, is reported to
have worn a dir‘ and an izār that was large enough to drape
around her and reach the ground. Notably, she did not wear a
khimār. Id. Yet another tradition relates that the Prophet’s
wives Maymūna and Umm Salamh would wear a khimār and
a dir‘ sābigh. Ibn Abī Shayba, Kitāb al-Muṣannaf 2:36.
The issue of ‘awrah is complex partly because it is
extremely difficult to retrace and reclaim the historical
process that produced the determinations as to ‘awrah. The
conventional wisdom maintains that early on, Muslim jurists
held that what should be covered in prayer should be covered
outside of prayer. This, however, is not entirely true. The
dominant juristic schools of thought argued that the ‘awrah of
men is what is between the knee and navel. A man ought to
cover what is between the knee and navel inside and outside
of prayer. A minority view, however, argued that the ‘awrah
of men is limited to the groin and buttocks only; the thighs are
not ‘awrah. The ‘awrah of women was a more complex
matter. As noted below, the majority argued that all of a
woman’s body except the hands and face is ‘awrah. Abū
Hanifa held that the feet are not ‘awrah, and some argued that
half the arm up to the elbow, or the full arm, is not a ‘awrah.
A minority view held that even the face and hands are ‘awrah
and therefore, must be covered as well. An early minority
view held that the hair and calves are not ‘awrah. In addition,
some argued that women must cover their hair at prayer, but
not outside of prayer. Importantly, the jurists disgreed on
whether the covering of the ‘awrah is a condition precedent
519
for the validity of prayer. The majority held that covering the
‘awrah is a fard (basic and necessary requirement) so that the
failure to cover the ‘awrah would invalidate a person’s
prayers. The minority view (mostly but not exclusively
Mālikí jurists) held that covering the ‘awrah is not a condition
precedent for prayer – accordingly, this school argued that
covering the ‘awrah is among the sunan of prayer (the
recommended acts in prayer), and the failure to cover the
‘awrah would not void a person’s prayers. A large number of
Hanafī jurists argued that as long as three-fourth of the body
is covered the prayer is valid. Interestingly, Mālik reportedly
allowed people to pray naked (‘urāh), if they were unable to
procure dressing garments. However he suggested that such
people should pray alone so as not to see each other’s ‘awrah,
and remain standing throughout. However if they are praying
in the dark of night (layl muẓlim), they may pray in
congregation with an imām leading them. Saḥnūn b. Sa‘īd,
al-Mudawwana al-Kubrā (Beirut: Dār Ṣadr, n.d.), 1:95–96.
See also, al-Qarāfī, al-Dhakhīrah, 2:106–107; Ibn Mufliḥ,
al-Mubdi‘, 1:370–374. The Shi‘ī al-Tūsī adopts the same
view and also allows them to pray in congregation during
daylight hours, as long as they pray in only one line and in a
sitting position. al-Ṭūsī, al-Mabsūt, 1:87. Al-Bahūtī goes so
far as to say that even in this case, congregational prayer
remains obligatory. Al-Bahūti, Kashshāf al-Qinā’, 1:324. See
also, Ibn Ḥazm, al-Muḥallā, 2:255–257. Being unclothed for
prayers does not allow one to steal clothes out of necessity,
according to al-Ramlī. Since one can pray naked, there is no
necessity as in the case of stealing clothes to protect oneself
from heat or freezing temperatures, or stealing food to prevent
death by starvation. Al-Ramlī, Nihāyat al-Muḥtāj (1992),
2:12. See also, al-Bahūtī, Kashshāf al-Qinā‘ 1:322–324, who
addresses the various means by which those without sufficient
520
clothes can pray. The overwhelming majority of jurists held
that the ‘awrah of a slave-girl, or even a female servant girl,
is different. Some jurists argued that the ‘awrah of such a
woman is between the knee and navel – the same as a man.
The other jurists held that the ‘awrah of such a woman is
from the beginning of the chest area to the knees and down to
the elbows. Therefore, the majority agreed that a slave-girl or
servant-giri may pray with her hair exposed. A minority view
argued that slave-girls should cover their hair in prayer, but
do not have to do so outside of prayer. In short, it seems to me
that the conventional wisdom is not exactly correct; there
seems to be sufficient grounds for differentiating between the
‘awrah in prayer and outside of prayer. Furthermore, as noted
below, the ‘awrah of slave-girls or servant-girls, inside and
outside of prayer, raise serious questions about the basis for
the historical juristic determinations regarding the ‘awrah of
women. See, on the law of ‘awrah: al-Ṣan‘ānī, al-Muṣannaf
3:128–136 (documents some of the early opinions). For
Mālikī school, see: Ibn Rushd (II), Bidāyat al-Mujtahid,
1:156–158; Ibn Rushd (I), al-Muqaddimāt al-Mumahhtdāt,
1:183–185; Sahnūn, al-Mudawwana (Dār
Ṣadr), 1:94; al-Ḥaṭṭāb al-Ra‘īnī, Mawāhīb al-Jalīl,
2:177–187; al-Qarāfī, al-Dhakhīrah, 2:101–105. For Shāfi‘ī
school, see: al-Shāfi’ī, al-Umm (Beirut: Dār al-Fikr, n.d.),
1:109; al-Ramlī, Nihāyat al-Muhtāj (1992), 2:7–8, 13;
al-Māwardī, al-Ḥāwī al-Kabīr, 2:165–171. For Ḥanafī
school, see Ibn Nujaym, al-Baḥr al-Rā’iq, 1:467, 469–476;
Ibn ‘ābidīn, Hāshiyat Radd (1966), 1:405; al-Kāsānī, Badā’ī
al-Ṣanā’ī, pp. 543–546. For Hanbalī school, see Ibn
Qudāmah, al-Mughnī (Dār Iḥyā’ al-Turāth al-’Arabī), 1:601;
Ibn Mufliḥ, al-Mubdī, 1:361–367; al-Bahūtī, Kashshāf
al-Qinā‘, 1:315–317. For Ja‘farī school, see al-Ṭūsī,
al-Mabsùṭ, 1:87–88.
ON AWARAH OF SLAVES:
Some of the late jurists argued that if a slave-girl will
cause a fitnah she must cover her breasts or hair. Al-Ḥaṭṭāb
relates that although a slave womans ‘awrah is the same as a
man’s, some have said that it is reprehensible for someone
who is not her owner to view what is under her garments, or
to view her breasts, chest, or whatever else “leads to fitnah”
(wa mā yad’ū al-fitnah minhā). Consequently, despite having
the same ‘awrah as men, it is preferred that she bare her head
but cover her body. Al-Ḥaṭṭāb, Mawāhib al-Jalīl, 2:180, 184.
See also, al-Qarāfī, al-Dhakhīrah, 2:103–104. Al-Bahūtī
relates views suggesting that as a matter of caution (iḥtiyāṭ), it
is preferrable that the slave-girl cover herself in the same
fashion as an adult free woman, including covering her head
during prayer. Al-Bahūtī, Kashshāf al-Qinā‘ 1:316. Ibn
‘Ābidīn also argues that most of the scholars of the Ḥanafī
school do not permit a slave woman to have her breasts,
chest, or back exposed; however it is said that a slave
woman’s chest is part of her ‘awrah only in prayer but not
otherwise. Nevertheless, Ibn Abidin finds this latter view
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unconvincing. Ibn ‘Ābidīn, Hūshiya Radd (1966), 1:405. See
also, Ibn Nujaym, al-Baḥr al-Rā’iq, 1:474; al-Marghīnāī,
al-Hidāya, 1:44