Woman’s Jurisprudence (Fiqh al-Mar’ah) – Sayyid Kamāl al-Ḥaydari | Lesson 14

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We were discussing verse [49:13] and said that the criterion for nobility towards Allah (swt) is Taqwa. In other words, with respect to reward and punishment, and with respect to heaven and hell, the criterion is Taqwa. We said that Taqwa needs to be based in evidence, in which case even if it is against what is the case in reality, the person will still be considered noble and will be rewarded, not just escape punishment.

Imagine a person comes across a woman, who he sincerely believes to be a stranger after researching, and he has no evidence to suggest it is his sister or another relative. He proposes to her and gets married – this person will receive the rewards that have been ordained for the union of marriage, even if in real life it happened to be his long-lost sister. In an opposite scenario, if a person knows that the drink in front of him is alcohol, and thus impermissible, and he goes and drinks it – even if this drink in real life just happened to have been water, he will be punished for it.

‘Allāmah Ṭabāṭabā’ī in his Risālah al-Wilāyah, on page 243 writes:

فمن المسلّم المحصل منهما المعاصي حتى الكبائر الموبقة، لا توجب عقاباً إذا صدر ممن لا يشعر بها وأن الطاعات لا توجب ثواباً إذا صدرت من غير تقرب وانقياد

وكذلك صدور المعصية ممن لا يشعر بكونه معصية إذا قصد الإطاعة لا يخلوا من حسن لأنه انقياد وصدور الطاعة بقصد العناد لا يخلوا من قبح

This is what ‘Allāmah is saying. You may ask, what about the fact that rulings are in accordance to ontological Maṣāliḥ and Mafāsid. This is a nonsense – although note that this view is nonsensical according to me, otherwise there is an academic argument for it, so don’t presume I am making a mockery out of the scholars. This was a view that crept into our theology from the Mu’tazalīs and some theologians in the 4th and 5th century Hijri simply stuck on to it. Otherwise, what evidence do we have for this?

Otherwise, if I were to believe that meat in front of me is slaughtered, but in reality, it was not, why would there be hardening of my heart? What was my fault, what was my mistake? This is of course a lengthy discussion, but we have tens of reasons to show that law is not in accordance of Maṣāliḥ and Mafāsid, rather they are in accordance to what you have knowledge of. The best example is the principle of Ilzām and you see the scholars going left and right trying to justify why this principle is allowed. Or when taking tax from a non-Muslim, if we know that the money they have earned is from selling alcohol and pork, we are still allowed to take this money as tax even though it is illegal according to our law.

Returning back to our discussion on the verse of al-Ḥujarāt, I want to look at a series of verses in Sūrah al-Furqān, from 62 to 74 and particularly verse 74: And those who say, “Our Lord, grant us from among our wives and offspring comfort to our eyes and make us an Imām for the righteous (Muttaqīn).”

This is a supplication that men are making. Is it possible for a woman to make this supplication? My discussion isn’t in politics, in becoming a judge or a prime minister, rather simply on the topic of becoming an Imām for the Muttaqīn. We know the Imām is greater than a Ma’mum (one who follows).

The narrations make it clear that religion is the basis of taqwa – someone who doesn’t have religion cannot be a muttaqi (righteous). The basis of religion however, is the intellect (‘aql).

Quotes 2nd & 3rd tradition from al-Kāfi’s Kitab al-‘Aql. You can refer to Mizān al-Ḥikmah on the merits of the intellect as well. Now if a woman is deficient in intellect, can her religion be perfect? It is not possible, because the basis of religion is intellect. If she is deficient in religion, can she reach the highest level of Taqwa or not? No, because the basis of Taqwa is religion. Therefore, it is not possible for a woman to become an Imām for the Muttaqīn.

According to the ḥadīth corpus this is what is proven. However, if we go back to the verse of al-Ḥujarāt:

[49:13] O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted.

Over here the verse explicitly says male and females – we don’t need external evidence to say this verse is also inclusive of females or not. Then it says, both from male and female can be the noblest in the sight of Allah (swt) if they have taqwa. This view does not reconcile with the ḥadīth corpus – unless we really say that the narrations are fabricated, because they contradict the Qur’ān, or we say that the deficiency in the intellect is not ontological, rather societal. If it is societal, then it can be addressed and improved.

When Ibn ‘Āshūr arrives at this verse, in his Tafsīr work, volume 16 he writes:

انا خلقناكم من ذكر وانثى مستعمل كناية عن المساوات في اصل النوع الإنساني ليتوصل من ذلك إلى ارادة اكتساب الفضائل والمزايا التي ترفع بعض الناس على بعض والمعنى المقصود من ذلك هو مضمون جملة أن اكرمكم عند الله اتقاكم منزلة المقصد من قوله خلقناكم من ذكر منزلة المقصد من المقدمة والنتيجة من القياس. جملة مستأنفة ابتدائية وإنما أخرت في النظم عن جملة أن خلقناكم كذا لتكون تلك الجملة السابقة كالتوطئة لهذه وتتنزل منها منزلة المقدمة لأنهم لما تساوو في أصل الخلقة من اب واحد وام واحدة كان الشأن أن لا يفضل بعضهم بعضا إلا بالكمال الإنساني وهو الكمال الذي يرضاه الله وهو التقوى الإلهي 

Let us now look at ‘Allāmah’s words in al-Mizān:

واعترض عليه وقوله مبين لما فيه الكرامة عند الله سبحانه وذلك أنه نبّههم في صدر الآية على أن الناس بما هم ناسٌ يساوي بعضهم بعضا  

وقيل بما أن مسوق لالغاء مطلق التفاضل بالطبقات من هم؟ كالابيض والاسود والعرب والعجم والغني والفقير والمولى والعبد والرجل والمرأة 

This shows that the general Qur’ānic principle is that both male and females are the same as far as they are both human, and their greatness is only measured through Taqwa. Now don’t turn around and say, well look at women today in society, they way they are today in society is evidence that they are not on par with men. This is the problem within society, not a problem with what the Qur’ān is saying. The problem in society is to such an extent that women come to believe that they cannot reach the same levels as men, even though the Qur’ān makes no such indication. You have to realize how much patriarchy has played a role in everything for thousands of years, in our societies, in our cultures, in our thoughts, in our interactions etc.

Now let us look at an explicit verse in the Qur’ān, where it cites a female as an example for both men and women. In al-Taḥrīm, verse 10 and 11:

ضَرَبَ اللَّهُ مَثَلًا لِّلَّذِينَ كَفَرُوا امْرَأَتَ نُوحٍ وَامْرَأَتَ لُوطٍ ۖ كَانَتَا تَحْتَ عَبْدَيْنِ مِنْ عِبَادِنَا صَالِحَيْنِ فَخَانَتَاهُمَا فَلَمْ يُغْنِيَا عَنْهُمَا مِنَ اللَّهِ شَيْئًا وَقِيلَ ادْخُلَا النَّارَ مَعَ الدَّاخِلِينَ

وَضَرَبَ اللَّهُ مَثَلًا لِّلَّذِينَ آمَنُوا امْرَأَتَ فِرْعَوْنَ إِذْ قَالَتْ رَبِّ ابْنِ لِي عِندَكَ بَيْتًا فِي الْجَنَّةِ وَنَجِّنِي مِن فِرْعَوْنَ وَعَمَلِهِ وَنَجِّنِي مِنَ الْقَوْمِ الظَّالِمِينَ

[66:10] Allah presents an example of those who disbelieved: the wife of Noah and the wife of Lot. They were under two of Our righteous servants but betrayed them, so those prophets did not avail them from Allah at all, and it was said, “Enter the Fire with those who enter.”

[66:11] And Allah presents an example of those who believed: the wife of Pharaoh, when she said, “My Lord, build for me near You a house in Paradise and save me from Pharaoh and his deeds and save me from the wrongdoing people.”

The Qur’ān tells us, to look at the wife of Pharaoh. You were thinking she is weak, but here is a case where a woman is standing up against the greatest tyrant of the time. Dr. ‘Abdul Karīm Khaṭīb in his al-Tafsīr al-Qur’āni lil-Qur’ān, volume 14, on page 1038:

فهذه ثلاثة امثال تحتوي النساء جميعاً في ثلاث مجموعات

In another work written under the supervision of Dr. Muṣṭafa Muslim, al-Tafsīr al-Mawḍū’ī li-Su’war al-Qur’ān al-Karīm, volume 8, he writes on page 258:

من الاساليب التربوية سوق النماذج الإنسانية التي تمثل فيها المبادئ والقيم فالقضايا الفكرية إذا ذكرت بشكل نظري تأتي باهتة لا تثير الاحاسيس ولا تطلق المشاعر وقد يظن أنها غير قابلة للتطبيق في واقع الحياة ولكن إذا عرضت من خلال سيرة اناس تمثلوها في حياتهم وعاشوها واقعاً عملياً لا شك أنهم سيكونون قدوة لمن بعدهم

Finally, what do the terms male and female in the verse of al-Ḥujarāt mean? There are three views: 1) Ādam and Ḥawwa, 2) All males and females, 3) Some scholars say that in some cases women are created through males only – Ḥawwa from Ādam, and in some cases males were created through females only – ‘Īsa from Maryam, and the verse has not alluded to the third category which is from both male and female, and fourth category which is from neither male nor female – Ādam. This fourth category will not work for those who believe that Ādam was also created through the union of some previous, yet different, created beings.

Tomorrow’s lecture will discuss, why is it that the scholars did not get the same understanding from the Qur’ān that we have established, and instead went towards the perspective the ḥadīth paints of women.

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