Woman’s Jurisprudence (Fiqh al-Mar’ah) – Sayyid Kamāl al-Ḥaydari | Lesson 2

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We were in the middle of answering our second question, which was, why do we need to have a discussion on the topic of women’s jurisprudence? What is the necessity? We said, there are two premises for it. First of them was the attention that the religious worldview has given to it. We also explained that by the term Fiqh, we do not mean technical jurisprudence which concerns only her actions, rather we are taking a general meaning of Fiqh which encompasses all religious aspects pertaining women. So, our discussion concerns the view of religion regarding women in society, in jurisprudence, in ethics, in her very existence and so on. We also pointed out that the Qur’ān has numerous verses pertaining women, on various different topics. Within traditions, there are hundreds, if not thousands of narrations that concern women.

This also tells us that this discussion cannot be concluded in one year. In the seminaries, Kitāb al-Ṭahārah can take up to twenty-years to finish, and if this discussion is not more expansive than Kitāb al-Ṭahārah, it is definitely not less than it. Kitāb al-Ṣalat can take up to thirty-years. Kiṭab al-Ḥajj can take even longer. Thus, we should not expect this discussion to be concluded and wrapped up within a year or two. What is important to know is that the subject-matter is also not one, rather there are hundreds of topics within this discussion alone.

What is the general take of Islam regarding women, and what is the Shi’ī view on women? What do we generally understand from the texts – Qur’ān and Ḥadīth that have come down to us.

In the Qur’ān, if we were to take a cursory glance, we would say women are being placed beneath men. If we were to compare women and men in light of the Qur’ān, we may conclude that women are not on par with men, rather they are lower – and by this we do not mean just in jurisprudential rulings, rather we mean in their very creation they are lower. Jurisprudential rulings are all rooted in what we make of their position ontologically speaking.

Let us now being looking at the first theme. This is a theme that is popular everywhere, within the seminaries, in classes, off the pulpits, amongst the general population, and that is: Women are deficient in intellect. It is as if this is from the most-accepted matters of religion (which does not need to be investigated).

A Side Point – Dīn is Other Than Sharī’ah

The term Dīn al-Islām is a metaphorical term. We do not have anything in real that is Dīn al-Islāmī as far as the Qur’ān is concerned. What we do find in the Qur’ān is the Sharī’ah, and this Sharī’ah can at times be Jewish, Christian, or Islamic. Otherwise, according to Allah there is only one Dīn, and that is: [3:19] Indeed, the religion in the sight of Allah is Islam.

This Islām isn’t a reference to the Sharī’ah, rather it is inclusive of all Divine Sharī’ah, from the time of Noah, Moses, Abraham, Jesus and the greatest of them all the last Messenger (p). So when the Qur’ān says: [3:19] Indeed, the religion in the sight of Allah is Islam, [3:85] And whoever desires other than Islam as religion – people may commit a fallacy here and say, this Islam is a synonym for Sharī’ah of Islam. This is a famous fallacy – and someone might say, how can Sayyid al-Ḥaydari say following the Sharī’ah of all religions is valid, while the Qur’ān says one should not desire other than Islam as a religion, then they are ignorant, because this Islam is not a reference to the Sharī’ah, rather it is Islam of Dīn. The Qur’ān has not used the word Islam in the meaning of Sharī’ah. The biggest problem that we have is ignorance – guide me towards one verse where the Qur’ān uses the word Islam and intended the Sharī’ah (of Muhammad) from it.

For all prophets where was a Sharī’ah, [42:13] He has ordained (shara’a) for you of religion (dīn) what He enjoined upon Noah…

So Dīn is only one, and that is Islam, and it is on this basis we say Noah was a Muslim, Abaraham was a Muslim, Solomon was a Muslim. Which Islam is this – is this the Islam of Sharī’ah or the Islam of Dīn? This is Islam as a Dīn, not that of the Sharī’ah.

So when the Qur’ān says [3:85] And whoever desires other than Islam as religion – never will it be accepted from him – the word Dīn in this verse is not a reference to the Sharī’ah.

[5:3] and I have approved for you Islam as religion, this verse was revealed after the declaration of Wilayāh (of Imām ‘Ali), and has nothing to do with the Sharī’ah. So go and reconsider this verse, [5:3] This day I have perfected for you your religion – what is this religion that the verse is referring to? Religion as a Sharī’ah, or something general? You can go and investigate this in ‘Ilm al-Kalām.

[2:62] Indeed, those who believed and those who were Jews or Christians or Sabeans [before Prophet Muhammad] – those [among them] who believed in Allah and the Last Day and did righteousness – will have their reward with their Lord, and no fear will there be concerning them, nor will they grieve.

This is evidence. Those who have reached the conclusion that their way is correct, they are excused – in fact not just excused, rather they are rewarded according to this verse. They cannot be punished if there is no evidence against them. It is for this reason why we say in the discussion of Ḥajj that if someone performs their Ḥajj according to a school of thought which they do not agree with – even if it is the true and correct method – their Ḥajj is invalidated.

Now some might go and say, according to Sayyid al-Ḥaydari, Dā’esh will enter heaven – this is layman’s logic. Like someone previously spread a rumour saying Sayyid believes all narrations on ‘Āshūra are fabrications and Isrāīliyyat.

Qur’ān

Let us get back to our discussion. The first verse we will look at is:

[2:282] And bring to witness two witnesses from among your men. And if there are not two men [available], then a man and two women from those whom you accept as witnesses – so that if one of the women errs, then the other can remind her.

We will ignore the cause given in this verse for why there are two women required, that is, they will err (taḍilla). What this verse does show us is that the testimony of a woman is half of that of a man’s. This is directly from the Qur’ān, so do not go and say that the narrations are fabricated, or they are naql bil ma’na, or that they are taqtī’ (i.e. part of the narration is cut off).

The verse of the Qur’ān says that the testimony of a woman is equal to a man’s, or half of a man’s? Half of a man’s.

Second verse: [2:228] But the men have a degree over them

This verse simply uses the word degree (darajah) and is silent on its quantity. How many degrees? 10%, 20%, 50% 90%? Nevertheless, the Qur’ānic principle says that men are a degree over women. Can we doubt this principle? No, because it is in the Qur’ān, it is certain and it is the Word of God.

Third verse: [4:34] Men are in charge of women

This is an explicit verse of the Qur’ān. Please note, the verse doesn’t say that husbands are in charge of their wives, rather it says men are in charge of women. Meaning, wherever you see men and women, the charge is given to men. Why are they in charge? The verse continues: [4:34] by [right of] what Allah has given one over the other

Then it continues [4:34] But those from whom you fear desertion – [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them.

No one here can say this is the understanding of the narrator. This is the Qur’ān. The verse of hitting is one of most important issues when it comes to the rights of women. What is the ruling for a man from whom a woman fears desertion, or does not provide her sustenance, or he does not follow the law? Nothing? Does this fit well with the justice Islam speaks of? What happens if a man leaves his wife for ten years, what can the wife do?

Fourth verse: [43:16-18] Or has He taken, out of what He has created, daughters and chosen you for [having] sons? And when one of them is given news of that of which he sets up as a likeness for the Beneficent Allah, his face becomes black and he is full of rage. What! that which is made in ornaments and which in contention is unable to make plain speech!

Question – who are the narrations in our corpus from? From men or from women? As for verse 18, majority of the exegetes have said, this verse is referring to women. If her intellect is deficient, then of course she is unable to make even plain speech and has no ability to argue regarding anything. In fact, she is for no other reason but for ornaments.

From just these four verses, what can we say about the position of women – is it a positive outlook or a negative? Now you believe that the Qur’ān was revealed by God, on the heart of the Prophet (p) who himself does not speak out of his lowly desires. If you took out the presumption that Qur’ān is the word of Allah (swt), and you were to find these words in any other book, whose author you did not know, what would you think the position of women is? Positive or Negative? But as soon as I say these are the words of Allah (swt), then you will quickly resort to justifications and explanations of all sorts, why? This is a discussion in epistemology, how much significance an author has in the text we are reading and we will not be able to get into it in detail.

Even if we say that this view towards women is not negative, then at the very least we cannot say that men and women are on the same level, rather women are lower than men. Even with our methodology, where we argue that the Qur’ān needs to be centric, we say that the Qur’ān seemingly has a lowly view of women. Now when we approach the narrations which say similar things, are these now in accordance to the view of the Qur’ān or against the view of the Qur’ān? If you were to present these narrations to the Qur’ān, you will not find them contradicting it, rather they are in line with it.

The Prophet (p) was reciting these verses to laymen, not to exegetes. Did the laymen understand the Qur’ān or not? Of course, they understood it, and understood it completely. The Qur’ān repeatedly says, Hadha Bayānun lil-Naas, Hadha Mubīn, Hadah Tibyān, Hadha Nūr. What is Nūr, you have studied this in philosophy. Something that is apparent itself and at the same time makes things apparent for others. If something else other than the Qur’ān was needed to understand it, one would become dependent on something else to understand the Qur’ān and it would no longer be something that makes things apparent for others. Some might say, that its own apparent nature is only for the Ahl al-Bayt. In this case, is the Qur’ān only a miracle for the Ahl al-Bayt? This is not the case.

Hadith

We want to now look at what the traditions have to say about women. We will not be able to go through all the themes, but we will look at a few of them.

In Wasā’il al-Shī’a, we find the following tradition[1]:

مر رسول الله (صلى الله عليه وآله) على نسوة فوقف عليهن ثم قال: يا معشر النساء، ما رأيت نواقص عقول ودين أذهب بعقول ذوي الالباب منكنّ، إنّي قد رأيت انكن أكثر أهل النار عذابا فتقربن إلى الله ما استطعتن ، فقالت امرأة منهن : يا رسول الله ، ما نقصان ديننا وعقولنا ؟ فقال أما نقصان دينكن فالحيض الذى يصيبكنّ ، فتمكث إحداكن ما شاء الله لا تصلي ولا تصوم ، وأما نقصان عقولكن فشهادتكنّ ، إنّما شهادة المرأة نصف شهادة الرجل

The Messenger of Allah passed by a group of women and stopped near them and said, O women, I have not seen someone other than you, deficient in their intellects and religion, who does away with the intellects of the intellectuals. I have seen that you make up the majority of those being punished in hell-fire. So try your utmost to seek nearness towards Allah. Then a woman from them said: O Messenger of Allah, what is the deficiency in our religion and intellects? So he (p) replied: As for the deficiency in your religion, then it is the menstruation which you go through, and so when one of you bleeds you are unable to pray or fast. As for the deficiency of your intellects, then it is due to your testimonies, because a testimony of a woman is half of a testimony of a man.

We are not investigating their chains right now, in fact later on we will see that we do not even need to investigate their chains because there are so many similar traditions that if they don’t reach the state of Tawātur, they are definitely Mustafīḍ.

We will need to clarify these traditions in the future, because if this is the criterion to determine whose Dīn is deficient or not, then if we were to travel right now and our prayers become shortened – is our Dīn deficient? If we were to travel and we are unable to fast, does our Dīn become deficient? If someone is ill and is unable to perform his religious duties, he is deficient in their Dīn? This is the criterion that the narration seems to convey. This is a negative view towards women, and instead of a positive view which would have simply said this is a favour from Allah (swt), we look at it as a deficiency. If this is the criterion, then there are hundreds of cases where men will also be deficient in their Dīn, but for men we justify it by saying this is the law of Allah (swt) – why don’t we say the same for women.

Now let us look at a narration from Saḥih al-Bukhārī[2]:

عَنْ أَبِي سَعِيدٍ الْخُدْرِيِّ، قَالَ خَرَجَ رَسُولُ اللَّهِ صلى الله عليه وسلم فِي أَضْحًى ـ أَوْ فِطْرٍ ـ إِلَى الْمُصَلَّى، فَمَرَّ عَلَى النِّسَاءِ فَقَالَ ‏”‏ يَا مَعْشَرَ النِّسَاءِ تَصَدَّقْنَ، فَإِنِّي أُرِيتُكُنَّ أَكْثَرَ أَهْلِ النَّارِ ‏”‏‏.‏ فَقُلْنَ وَبِمَ يَا رَسُولَ اللَّهِ قَالَ ‏”‏ تُكْثِرْنَ اللَّعْنَ، وَتَكْفُرْنَ الْعَشِيرَ، مَا رَأَيْتُ مِنْ نَاقِصَاتِ عَقْلٍ وَدِينٍ أَذْهَبَ لِلُبِّ الرَّجُلِ الْحَازِمِ مِنْ إِحْدَاكُنَّ ‏”‏‏.‏ قُلْنَ وَمَا نُقْصَانُ دِينِنَا وَعَقْلِنَا يَا رَسُولَ اللَّهِ قَالَ ‏”‏ أَلَيْسَ شَهَادَةُ الْمَرْأَةِ مِثْلَ نِصْفِ شَهَادَةِ الرَّجُلِ ‏”‏‏.‏ قُلْنَ بَلَى‏.‏ قَالَ ‏”‏ فَذَلِكَ مِنْ نُقْصَانِ عَقْلِهَا، أَلَيْسَ إِذَا حَاضَتْ لَمْ تُصَلِّ وَلَمْ تَصُمْ ‏”‏‏.‏ قُلْنَ بَلَى‏.‏ قَالَ ‏فَذَلِكَ مِنْ نُقْصَانِ دِينِهَا

Narrated Abū Sa’īd Al-Khudri: Once Allah’s Messenger (p) went out to the Muṣalla on the day of `Īd al-Adha or al-Fiṭr prayer. Then he passed by the women and said, “O women! Give alms, as I have seen that the majority of the dwellers of Hell-fire were you (women).” They asked, “Why is it so, O Allah’s Messenger? He replied, “You curse frequently and are ungrateful to your husbands. I have not seen anyone more deficient in intelligence and religion than you. A cautious sensible man could be led astray by some of you.” The women asked, “O Allah’s Messenger! What is deficient in our intelligence and religion?” He said, “Is not the evidence of two women equal to the witness of one man?” They replied in the affirmative. He said, “This is the deficiency in her intelligence. Isn’t it true that a woman can neither pray nor fast during her menses?” The women replied in the affirmative. He said, “This is the deficiency in her religion.”

God Willing in later lessons we will show how people have mixed their understanding between the terms Īmān and Dīn, and that which should be seen as negative is the deficiency in Īman, not Dīn.

[1] https://alkafeel.net/islamiclibrary/hadith/wasael-20/wasael-20/v01.html

[2] https://sunnah.com/bukhari/6/9

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