Women's Fiqh

Author: Mahdi Shajarian

• Abstract

Women's Fiqh (Fiqh al-Nisa) is one of the genitive Fiqhs (Fiqh al-Mudaf) and a newly emerged branch in the knowledge of Fiqh that examines the rights and rulings related to women in various chapters of Islamic Fiqh with a social, problem-oriented, and critical approach. Although the roots of Women's Fiqh go back to traditional Shia Fiqh, its contemporary formulation is fundamentally different from the past tradition. In previous eras, attention to women's issues mainly took place in the form of compiling their specific rulings with the aim of facilitating the education of religious duties. These works, despite their historical importance, lacked an analytical perspective on the reasons for distinctions, their social consequences, and the relationship of these rulings with the developments of the times.

The fundamental transformation of Women's Fiqh in the contemporary era has occurred in the context of Fiqh's encounter with modernity and profound social changes. In this period, Fiqhi distinctions between men and women, which previously remained at the level of a question, have turned into a social issue with legal, cultural, and political effects. The problematization of women's rulings stems from several key factors: first, the reduced persuasive power of some traditional Fiqhi answers for the new generation and their inconsistency with the lived experience of women in the new world; second, the emergence of new issues in areas such as modern medicine, reproductive technologies, and economic developments; and third, the role of media and the public sphere in highlighting these issues and turning them into a social concern.

Although Women's Fiqh is closely linked to Family Fiqh, it differs from it in terms of focus. Family Fiqh, with a holistic view, considers the institution of the family as the unit of analysis and its goal is the preservation and strengthening of this institution, whereas Women's Fiqh, with a micro-level approach, examines the woman as an independent individual and a subject of rights, and often engages in a critical re-reading of famous rulings. In Contemporary Jurisprudence, the scope of women's issues has been redefined and, in addition to traditional discussions, covers areas such as family law (Inheritance, Divorce, Custody, Qawamiyyah), women's social and political participation (Judgeship, Religious Authority, Governmental positions, Blood money, and Testimony), some worship rulings with social functions, and completely newly emerged issues such as Artificial insemination, Surrogacy, Therapeutic abortion, and Sex reassignment.

Fiqhi approaches to women's issues can be categorized into a five-fold spectrum. At one end of the spectrum lies the approach of "Devotional acceptance of distinctions," which relies solely on the apparent indication of evidence without entering into the why of the rulings. The next step is the approach of "Justification of distinctions," which, while maintaining the famous Fatwas, attempts to explain the wisdom and rationality of these differences through theological and philosophical analyses. The third approach, without changing the Fatwa, deals with "Modifying the effects of distinctions in the execution stage" through legislation and governmental measures. In contrast, the fourth approach directly leads to changing the Fatwa and achieving egalitarian results by "Rethinking Fiqhi evidence." Finally, the fifth approach, by "Revising Usuli rules and methodological foundations of Ijtihad," calls for a deeper transformation in the process of inferring rulings.

Nature

Women's Fiqh is among the genitive Fiqhs that deals with the explanation of rights and rulings related to women in various chapters of Islamic Fiqh with a social and problem-oriented approach. Attention to women's issues has a long history in Shia Fiqh. In addition to raising related discussions in general Fiqhi books, independent works have been written among the ancients with the aim of compiling women's religious rulings; such as the book "Ahkam al-Nisa" (Rulings of Women) authored by Sheikh Mufid (died 413 AH), which was compiled with the aim of gathering a brief collection to facilitate women's access to their special rulings. This authorship tradition continued in later periods with works such as "Aqd al-Kisa fi Fiqh al-Nisa" by Ali b. Hussein Karbala'i (died 1136 AH), who wrote it at the command of the king of the time. These works usually had common characteristics: their subject was the specific rulings of women, their goal was to facilitate the learning of these rulings, they did not address the philosophy and reasons for the distinctions, and they did not analyze these rulings as a social challenge.

In the contemporary era and under the influence of Fiqh's encounter with modernity, this field has transformed from "Individual Fiqh" to "Social Fiqh." Fiqhi distinctions between men and women, which have always been "questions" since the time of the Lawgiver, have now turned into "issues." The difference between these two concepts is key; a "question" is a personal and simple inquiry regarding an unknown matter, the end of which is transforming ignorance into knowledge. But an "issue" is a social, complex matter and "an incident or situation where ignoring it can pave the way for a loss, and attending to it can pave the way for gaining a benefit." An issue forms in social life, and failure to address it will have extensive consequences.

This substantive transformation has been due to multiple factors:

First, the inability of some traditional Fiqhi answers to rationally persuade the new generation and their inconsistency with the "lived" situations of actors in the modern world;

Second, the emergence of new issues in medical, social, and economic fields;

Third, the role of media and modern technologies in highlighting these issues and turning them into a social concern.

Difference between Family Fiqh and Women's Fiqh

Women's Fiqh and Family Fiqh are two close yet distinct categories. The main distinction between the two lies in their center of focus. Family Fiqh, with a holistic view, considers the "institution of the family" as a single system and its ultimate goal is the stability of this institution. In contrast, Women's Fiqh focuses on the "woman" as an independent individual with a micro-level view and, with an often critical and rethinking approach, seeks to discover and explain her individual and social rights and to re-read famous rulings.

Scope and Main Issues of Contemporary Women's Fiqh

In the traditional approach, Women's Fiqh covered a wide range of Fiqhi chapters, from purity (Taharah), menstruation (Hayd), and Lochia (Nifas) to chapters on marriage (Nikah), divorce (Talaq), retaliation (Qisas), and blood money (Diyat). However, in Contemporary Jurisprudence, while maintaining attention to traditional issues, the main focus is on topics that have become a social challenge as well as newly emerged issues that had no precedent in the past. This has redefined the scope of Women's Fiqh. The most important of these areas are:

Family Rights

The rights and duties of women within the family environment are one of the extensive axes of contemporary Women's Fiqh. Issues such as Inequality in inheritance, Right to custody of children after divorce, the man's unilateral right to divorce, the concepts of Nushuz (disobedience) and Tamkin (submission) and their limits, Men's headship over the family (Qawamiyyah), and Permissibility or impermissibility of a woman leaving the house without the husband's permission are all central topics in contemporary Fiqhi research regarding women's issues.

Social and Political Issues

The extensive presence of women in public spheres and holding socio-political jobs is one of the most important challenges of contemporary Fiqh. While traditional Fiqh mostly emphasized women's role in housekeeping, contemporary Fiqh faces the question of what the limits and boundaries of women's social and political participation are. Issues such as Equality of blood money for men and women, Women's testimony in court, Permissibility or impermissibility of women's religious authority, Holding the position of judgeship, Possibility of presidency and other high governmental positions, and even more minor issues such as women's presence in stadiums and their motorcycle and bicycle riding in public passages are among the topics that have received attention in contemporary Fiqhi research.

Acts of Worship

Although some have considered worship rulings in Women's Fiqh less debatable; this does not mean completely ignoring this area. For instance, worship rulings possessing social functions that have been challenged in the contemporary world are addressed in Women's Fiqh. For example, a number of researchers critique the traditional approach based on the desirability of women avoiding presence in gatherings and consequently collective worship, believing that these acts of worship have gained important social, cultural, and political functions in the contemporary world, and depriving women of this capacity is considered a type of "double deprivation" for them. They also challenge the prohibition of women's Imamate for men and, citing the opinion of some contemporary jurists such as Ayatollah Montazeri, state that there is no valid narrational evidence for this prohibition.

Emerging Issues

Significant scientific and technological advancements have placed completely new issues before Women's Fiqh, for which no precedent is found in past Fiqhi texts. Topics such as modern reproductive technologies like In vitro fertilization, Surrogacy, Egg donation, and Embryo, the permissibility or impermissibility of Abortion during treatment in cases of hardship or incurable diseases of the fetus, rulings related to Sex reassignment and Cosmetic surgeries constitute an important and growing part of contemporary research in Women's Fiqh.

Fiqhi Approaches to Women's Issues

Fiqhi efforts in the field of Women's Fiqh have been carried out with different approaches. From one perspective, these approaches are divided into two macro categories: traditional and revisionist. Disregarding the traditional approach which emphasizes inferring and implementing the same famous rulings and distinctions between men and women, a rival intellectual approach believes that many Fiqhi differences between men and women are not permanent and intrinsic rulings of religion and emphasizes the necessity of reviewing the evidence and even the foundations of Ijtihad to reach different results appropriate for the times. Instead of defending the famous opinion, this approach focuses on "re-reading religious sources" to "change the famous opinion." The most important representatives of this current include jurists such as Yusef Saanei, Muhammad Ibrahim Jannati, and Muhammad Mahdi Shams al-Din.

From another detailed perspective, these approaches are explained more specifically. Based on what has occurred in practice by contemporary jurists and thinkers in the field of women's issues, Fiqhi efforts can be categorized into a five-fold spectrum of methods and approaches. This five-fold model indicates the breadth existing in this field, and mentioning a person in one approach does not mean their exclusive presence in it; because a single person may have a combined approach in their macro Fiqhi thought. The approaches and also the figures who have expressed opinions under each approach in the field of women's issues are as follows:

Devotional Acceptance of Distinctions

This approach, which is dominant among most traditional jurists, follows the apparent indication of evidence and issues Fatwas on existing distinctions without entering into the why and wisdom of the rulings. For them, the distinction between rulings for men and women is not problematic per se; rather, the main issue is the precise discovery of the indication of evidence based on the common methodology of Fiqh. The jurist is not obligated to understand the "cause" (Illah) of these distinctions and only seeks the "reason" (Dalil), and when the evidence guides to distinct rulings, they will issue a Fatwa on it devotionally (Ta'abbudi).

Nasser Makarem Shirazi, one of the Shia Marja's, clearly employs this approach in explaining the specific ruling of 'Iddah (waiting period) for women. He believes that one cannot definitively access the wisdom of divine rulings, and what is said in this regard is merely to facilitate rational acceptance. From his viewpoint, the fundamental point is that since these commands have been issued by the Wise God based on His absolute knowledge and wisdom, instead of questioning them, they must be accepted "devotionally," believing that they are the most complete commands possible.

Fariba Alasvand, a researcher in Women's Fiqh, also considers the main solution in facing women's Fiqhi rulings to be strengthening the foundations of theology and the principle of "devotion." In her belief, since no cause or wisdom has been stated for many rulings in the lifestyle of the Ahl al-Bayt either, the correct way is to strengthen the belief in the All-Knowing, Wise, and Benevolent God. She likens this approach to the trust of the Prophet's (PBUH) companions in his trustworthiness and believes that just as they were certain of the truthfulness of his speech, believers must also submit to the unseen news that has arrived in the form of rulings by trusting the source of revelation and not trouble their souls with low-benefit questions.

Effort to Justify Distinctions

This approach, while fully accepting the famous Fatwas, goes a step further and employs a theological and philosophical effort to rationally justify distinctions and persuade public opinion, considering itself obliged to provide a rational and wisdom-based support for Fiqhi rulings. This approach is crystallized in the works of individuals such as Allameh Tabatabai, Motahhari, Misbah Yazdi, and Javadi Amoli. In this approach, jurists, while accepting and adhering to famous Fiqhi rulings, try to explain the wisdom and basis of these legal distinctions using rational and theological foundations and answer the doubts and criticisms raised in the modern world.

For example, Morteza Motahhari, by analyzing Men's headship over the family (Qawamiyyah) in the Quran (Nisa: 34), does not consider man's guardianship as his absolute superiority, but relates it to the aggregate of the man's relative advantages in the family structure. In his belief, the expression "bima faddala Allahu ba'dahum ala ba'd" (by what Allah has given one over the other) indicates that each man and woman has their own specific advantages and superiority is mutual. Abdullah Javadi Amoli, in justifying inequality of blood money, believes this ruling has no relation to the spiritual, scientific, or practical value of individuals, but rather looks at the economic consequences of murder and the man's economic role in the family, emphasizing that just as the blood money of a scientist and an illiterate person is the same, this matter does not indicate a reduction in the woman's status. Also, Muhammad Taqi Misbah Yazdi considers the wisdom of the difference in accepting women's testimony to be related to preserving the rights of individuals. Men, due to difference in creation, are more alert in recording events precisely, and due to less dominance of emotions, are less influenced by feelings in the position of giving testimony. The Lawgiver has accepted the principle of women's testimony but, as a precautionary measure, has considered the testimony of a second woman necessary to complete and confirm the testimony of the first woman.

Reducing Distinctions in the Execution Stage of Shari'a Rulings

In this approach, the jurist does not issue an opinion contrary to the famous one in the stage of inference and Fatwa, but does not consider the execution of some of these rulings expedient in specific social conditions and modifies their effects in the execution stage through governmental and legal solutions. This approach is based on the separation between "Fatwa" and "Law." A clear example of this approach is the note to Article 551 of the Islamic Penal Code in Iran, which, despite the persistence of the famous Fatwa on inequality of blood money, stipulates that the difference in women's blood money be paid from the Fund for Bodily Damages, practically compensating for this distinction. Or Nasser Katouzian, although accepting the Shari'a ruling of difference in women's inheritance and not inheriting from land as a fixed ruling, considers its execution in today's society "unjust" due to social changes. From his point of view, factors such as families becoming less populated, the significant increase in property value, and women's economic role in modern society have caused this distinction to entail oppressive consequences. However, he believes that the Shari'a ruling cannot be set aside due to this perception. His proposed solution is not a change in Fatwa, but the use of "executive and legal measures" to reduce the effects of this distinction; for example, the legislator can encourage men to use the right of bequeathing up to one-third of their property to compensate for their wives' small share, giving this solution a practical and general aspect.

From the viewpoint of Hassanali Ali-Akbariyan, the Islamic ruler, in addition to implementing Shari'a, is obliged to establish justice, and in conditions where the execution of a Shari'a ruling in a specific time is perceived as "tyrannical" by the general religious public, a conflict occurs between these two duties. For example, the wisdom of the difference in inheritance between men and women is tied to rulings such as the obligation of paying dower (Mahr) and alimony (Nafaqah) by the man and the woman's exemption from Jihad. Now, if in the general culture of society, these supporting rulings are not properly implemented and lose their function, the execution of the ruling of difference in inheritance can lead to a "perception of oppression" among the religious people. in such a situation, although the primary Fatwa does not change due to reliance on Shari'a evidence, the legislator is obliged to establish a secondary ruling different from the primary Fatwa in the position of execution and Legislation for the realization of justice, without having changed the principle of that Fatwa.

Reducing Distinctions by Rethinking Fiqhi Evidence

This approach, unlike the three previous approaches, directly intervenes in the Fatwa stage and achieves egalitarian Fatwas by critical re-reading of evidence and disputing the chain of transmission (Sanad) or indication (Dalalah) of narrations. For example, Muhammad Ibrahim Jannati, in this very line, believes: "Holding the position of judgeship by a woman, provided she possesses the conditions, is not impeded. For women, holding other positions such as social, political, scientific, cultural, artistic, managerial positions, presidencies, etc., provided they have the capability to perform them and maintain Shari'a standards regarding covering and otherwise, is not problematic." This approach is committed to following the common Usuli method among jurists and believes that even with the same common methods, rethinking the evidence can lead to new opinions.

Yusef Saanei has also utilized the common Usuli rule of "priority of Quranic texts over narrational texts in the assumption of divergence" in the issue of unequal retaliation (Qisas) for men and women. He cites some Quranic verses and believes that their indication of equality of retaliation for men and women is explicit. Consequently, acting upon narrations that look at inequality and make the retaliation of a woman against a man contingent upon paying half the man's blood money to his next of kin is difficult due to explicit opposition to the Quran. In another example, by detailed examination of three categories of narrations that are the documentation of the famous Fatwa on the inequality of blood money for men and women, he disputes the indication or document of all these narrations and tries to reject the validity of these narrations using the same accepted Fiqhi rules, and finally issues a Fatwa on equality of blood money for men and women by citing Quranic generalities and absolutes.

Reducing Distinctions by Rethinking Usuli Rules

This approach seeks transformation in the process of inference by rethinking the foundations and methodological principles of Fiqh. This attitude believes that some common principles may not be efficient for answering today's needs. Citing new foundations such as the Authority of speculative reason (Hujjiyyah of Aql-e Zanni) alongside tradition or revising the authority of the single report (Khabar Wahid) are examples of this approach that can lead to completely different results in women's issues.

Muhammad Sadeqi Tehrani, in this vein, does not consider Tradition (Sunnah) to be even a speculative proof due to problems such as the men of the chain (Rijal), lack of Tawatur (mass transmission), contradiction and conflict, possibility of fabrication, possibility of Taqiyyah (dissimulation), transmission by meaning, and possibility of fragmentation, and believes that the appearances and texts of the Quran, due to being free from all these problems, exist in a much stronger rank and must be the main reference in inferring rulings. For example, in the issue of blood money, based on strong opposition to the famous narration of Aban he cites the absoluteness of two verses "So whoever has assaulted you, then assault him in the same way that he has assaulted you" (Baqarah: 194) and "Wounds equal for equal" (Ma'idah: 45) and attempts to prove the excess of blood money for 4 fingers of a woman over her 3 fingers, in opposition to the mentioned narration and the famous opinion.