Women Fiqh

Author: Mahdi Shajarian

• Abstract

Women Fiqh (in Persian: فقه زنان) is a sub-branch of Fiqh (Fiqh al-Mudaf) and a newly emerged branch in Fiqh that examines the rights and rulings related to women in various chapters of Fiqh taking a social, problem-oriented, and critical approach. Although the roots of Women Fiqh go back to traditional Shia Fiqh, its contemporary formulation is basically different from the traditional versions. In the past, issues of women were mainly concerned in terms of compiling their specific edicts with the aim of facilitating the education of religious duties. Despite their historical importance, these works have no analytical approach to the reasons of distinctions between men and women, their social consequences, and the relation between these rulings and the developments in the times.

The fundamental transformation of Women Fiqh in the contemporary period has occurred in the context of Fiqh's encounter with modernity and profound social changes. In this period, Fiqhi distinctions between men and women have turned into a social issue with legal, cultural, and political effects, whereas it was previously just a question without notable consequences. Rulings related to women became problematic due to 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, to bring up newly emerged 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 Fiqh is closely linked to Family Fiqh, it focuses on different aspect. Based on a holistic view, Family Fiqh deals with the family institution as a whole and its goal is preservation and strengthening of this institution, whereas Women Fiqh, with a micro-level approach, regards women as independent individuals having rights, and mostly engages in reviewing famous rulings about women. The scope of women's issues has been redefined in Contemporary Fiqh and so it covers some other areas, in addition to traditional discussions, such as family law (e.g. Inheritance, Divorce, Custody, taking care of women), women's social and political participation (e.g. Judgeship, Religious Authority, Government positions, Blood money, and Testimony), some worship rulings with social functions, and the absolutely emerged issues such as Artificial Insemination, Surrogacy, Therapeutic Abortion, and Gender Reassignment.

Fiqhi approaches to issues of women can be categorized into a five-level spectrum. First approach, at the one end of the spectrum, is "devotional acceptance of the distinctions," which solely takes the appearances of jurisprudential evidence without addressing the reason of the rulings. Next level is "justification of the distinctions," which attempts to explain the wisdom and rationality of these differences through theological and philosophical analyses while it accepts and maintains the famous Fatwas. The third approach also does not change fatwas but believes in "modifying the effects of distinctions in the execution stage" through legislation and government measures. In contrast, the fourth approach directly leads to changes in the fatwa and achieves similar rulings for men and women 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 Fiqh is a sub-branch of Fiqh that deals with the explanation of rights and rulings related to women in various chapters of Islamic jurisprudence with a social and problem-oriented approach. Attention to women's issues has a long history in Shia Fiqh. In addition to discussing issues related to women in Fiqhi books, some works have been written independently by ancient jurists with the aim of compiling women's religious rulings; such as the book "Ahkam al-Nisa" (Rulings of Women) authored by Sheikh Mufid (d. 413 AH/1022 CE), which was compiled with the aim of gathering a brief collection to facilitate women's access to their special rulings. Afterward, this authorship tradition continued to works such as "Aqd al-Kisa fi Fiqh al-Nisa" by Ali b. Hussein Karbala'i (d. 1136 AH/1723 CE), 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 examine these rulings as social challenges.

In the contemporary era and under the influence of Fiqh's encounter with modernity, this area has fallen under "social Fiqh" and is no longer simply an "individual Fiqhi area." Fiqhi distinctions between men and women, which have always been "questions" since the time of The Legislator, have now turned into "problem." The difference between these two concepts is crucial. A "question" is a personal and simple inquiry regarding an unknown matter, the end of which is transforming ignorance into knowledge. But a "problem" is a social, complex matter; namely "an event or a situation which will lead to damage if it is ignored and will lead to benefits it is paid attention to." A problem is arised in the context of social life, and failure to address it will have extensive consequences.

This substantive transformation from individual nature to the social sphere was due to multiple factors:

• First, the failure of traditional Fiqhi answers to rationally convince the new generation and their inconsistency with the "lived" situations of activists 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 Fiqh

Women Fiqh and Family Fiqh are two close yet distinct categories. The main distinction between the two leis in their focus. Based on a holistic view, Family Fiqh considers the "family institution" as a single system and its ultimate goal is the stability of this institution. In contrast, Women Fiqh, with a micro-level approach, regards "women" as independent individuals and, based on critical and rethinking approach, seeks to discover and explain their individual and social rights and to revise famous rulings.

Scope and Main Issues of Contemporary Women Fiqh

In the traditional approach, issues related to women are discussed in a numerous chapters of Fiqh, such as chapters of purity (Taharah), menstruation (Hayd), and Lochia (Nifas), as well as chapters of marriage (Nikah), divorce (Talaq), retaliation (Qisas), and blood money (Diyat). However, Contemporary Fiqh mainly focuses on topics have become social challenges as well as newly emerged issues that have not raised in the past, while it still pays attention to the traditional issues. Therefore the scope of Women Fiqh is redefined and the most important areas include:

Family Rights

The topic of women’s rights and duties in the family is one of the most widely discussed topics in contemporary Women Fiqh. Issues such as Unequal inheritance, right to custody of children after divorce, unilateral right to divorce for men, the concepts of Nushuz (disobedience) and Tamkin (submission) and their limits, men's maintenance of the family (Qawamiyyah), and permissibility or impermissibility for women to leave the house without their husband's permission are all central topics in contemporary Fiqhi research regarding women's issues.

Social and Political Issues

Women’s widespread presence in public spheres and taking up socio-political jobs is one of the most important challenges to 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 for a woman to be a religious authority, taking up the position of judgeship, possibility of presidency and other high government positions, and even more minor issues such as women attending sport games 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 scholars think the worship rulings in Women Fiqh does not require as much discussion as other topics, this does not mean this area is absolutely ignored. For instance, the worship rulings with social functions that have been challenged in the contemporary world are addressed in Women Fiqh. For example, a number of researchers critique the traditional claims on desirability of women avoiding presence in gatherings and subsequently in collective worship, arguing that these acts of worship have important social, cultural, and political functions in the contemporary world, and therefore it might be a "double deprivation" for women deproved of this capacity. They also challenge the prohibition of women's Imamate for men and, citing the opinion of some contemporary jurists such as Ayatollah Montazeri, claim that there is no valid evidence based on hadiths for this prohibition.

Emerged Issues

Significant scientific and technological advancements have placed completely new issues before Women Fiqh, for which no precedent is found in previous 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 gender reassignment and Cosmetic surgeries constitute an important and growing part of research in contemporary Women Fiqh.

Fiqhi Approaches to Women's Issues

There are different approaches to Fiqhi issues related to women Fiqhi. Generally these approaches are divided into two categories: traditional and revisionist. Apart from the traditional approach, which emphasizes inferring and implementing the famous rulings that are different for men and women, there is a rival intellectual approach which believes that many Fiqhi differences between men and women are not religiously permanent and intrinsic 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 opinions, this approach focuses on "reviewing the religious sources" in order to "change the famous opinions." The most important representatives of this current include jurists such as Yousef Saanei, Mohammad-Ebrahim Jannati Shahroudi, and Mohammad Mahdi Shams al-Din.

In more details, these approaches are explained more precisely. In practice, Fiqhi efforts of contemporary jurists and thinkers in the field of women's issues can be categorized into a five-level spectrum of methods and approaches. This five-level model shows the wide range of this field, and mentioning a person in one approach does not mean that he/she solely adheres to that approach, because someone may adopt an integrated approach in their way of Fiqhi macro-thinking. The approaches and the figures who comment in accordance with each approach in the field of women's issues are as follows:

Devotional Acceptance of Distinctions

This approach, which is the majority opinion of traditional jurists, takes the appearance of evidence and issues fatwas based on common distinctions between men and women, without any discussion of the why and wherefores of the rulings. For them, the different rulings for men and women is not problematic per se, rather the problem is an accurate understanding 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 fatwas on it devotionally (Ta'abbudi).

Nasser Makarem Shirazi, a Shia Marja, explains the specific edict of 'Iddah (period of waiting) for women expressly on this idea. He believes that one cannot certainly understand the wisdom of divine rulings, and what is said in this regard is merely to facilitate reasonable acceptance. The fundamental point, in his opinion, is that the All-Wise God with absolute knowledge and wisdom have issued these commends, hence these are to be accepted "devotionally" without question and it must be believed that they are the most complete commands could be issued.

Fariba Alasvand, a researcher in Women Fiqh, also considers the main solution in facing women's Fiqhi rulings to be strengthening the foundations of theology and "the devotion principle." According to her, since many rulings have been found in hadiths and sira of the Ahl al-Bayt without mentioning any cause or wisdom, the right way is to strengthen the belief in the All-Knowing, All-Wise, and Omnibenevolent 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 trust the source of the revelation and submit to the unseen news that has been notified as rulings and they should not torment themselves with trivial matters.

Effort to Justify Distinctions

Accepting all famous fatwas, this approach goes a step further and makes a theological and philosophical effort to reasonably justify distinctions and persuade public opinion, considering itself obliged to provide a rational and wisdom-based support for Fiqhi rulings. This approach is followed by of some scholars such as Allameh Tabatabai, Motahhari, Misbah Yazdi, and Javadi Amoli. In this approach, jurists followed this approach accept and adhere to famous Fiqhi rulings, but 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 the concept of Qawwamiyyah in the Quran 4:34, Morteza Motahhari offers an interpretation of this verse to demonstrate that man's guardianship is not due to his absolute superiority, but it refers to the sum of the man's relative advantages in the family structure. In his belief, the expression "bima faddala Allahu ba'dahum ala ba'd" (with [the bounties] God has given to some more than others) indicates that each man and woman has their own specific advantages and superiority is mutual. In justifying inequality of blood money, Abdullah Javadi Amoli is of the opinion that this ruling has nothing to do with anyone’s spiritual, intellectual, or practical worth, but rather looks at the economic consequences of murder and men's economic role in the family, and just as, he emphasizes, the blood money of a scientist and an illiterate person is the same, this difference is not mean the women’s status is lower than men. 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 since they are less dominated by emotions, their testimony is less influenced by feelings. The Legislator recognizes women's testimony in principle but, as a precautionary measure, considers the testimony of another woman necessary to complete and confirm the testimony of the first one.

Reducing Distinctions in the Execution Phase of Sharia Rulings

In this approach, the jurist, when inferring edicts and issuing fatwas, does not offer an opinion contrary to the famous one, but, in certain social circumstances, considers expediency in implementing some of these rulings and uses executive modifications via governmental and legal means. 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 of Iran, according to which the difference of women's blood money has to be paid by the Fund for Bodily Damages and so this distinction practically disappears while the law still adheres to the famous fatwa on inequality of blood money. Also, while Nasser Katouzian accepts the Sharia ruling of difference in women's inheritance as an unalterable edict, according to which they do not inherit from land, considers its execution in nowadays society "unjust" because of social changes. From his perspective, taking into account factors such as families becoming less populated, the significant increase in property value, and women's economic role in modern society, this distinction has 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. To apply this proposal into practice, the lawgiver, for example, can encourage men to use the right of bequeathing up to one-third of their property to compensate for their wives' small share.

According to Hassanali Ali-Akbariyan, in addition to implementing Sharia, the Islamic ruler is also obliged to establish justice, and a conflict occurs between these two duties when the observant believers generally perceived the execution of a Sharia ruling as "tyrannical". For example, the wisdom of the difference in inheritance between men and women is tied to rulings such as the obligation of men to pay dower (Mahr) and alimony (Nafaqah) and the exemption for women from Jihad. Therefore, if these supporting rulings are not properly implemented and lose their function in the general culture of society, the execution of the ruling of difference in inheritance can be regarded as an "oppressive situation" by the observant believers. The primary fatwa remains unchanged due to Sharia evidence, however in such situations, and to ensure justice, the lawmaker is obliged to establish a secondary ruling that differs from the primary fatwa. This action should be taken solely in an executive and legislative capacity, rather than through the inference of a new fatwa.

Reducing Distinctions by Rethinking Fiqhi Evidence

Unlike the three previous approaches, this one directly intervenes in the issuing fatwa phase and achieves similar fatwas for men and women by critical reviewing of the evidence, namely objections to the indication of hadith (Dalalah) or chain of narratives (Sanad). Along this line Mohammad-Ebrahim Jannati Shahroudi says: "Holding the position of judgeship by a woman, provided she has the conditions, is not impeded. Also, holding other positions such as social, political, scientific, cultural, artistic, managerial positions, presidencies, etc. is permissible for women provided they have the capability to perform them and maintain Sharia standards regarding covering and otherwise." This approach is committed to common usuli methods among jurists and holds that new opinions could be derived from the same common methods by rethinking the evidence.

The usuli rule of "priority of Quran over hadiths in case of conflict" was also cited by Yousef Saanei in the issue of unequal retaliation (Qisas) of a man against a woman. He believes that some Quranic verses explicitly implies equality of retaliation for men and women. Consequently, it is difficult to act upon hadiths that rule on 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, because this is explicitly opposite to the Quran. Regarding the inequality of blood money for men and women, he examines, in detail, three categories of hadiths that are the basis of the famous fatwa on this ruling and objects to the indication or chain of narratives of all these hadiths and tries to reject the validity of these hadiths using the same accepted Fiqhi rules. Finally, citing absolute and general verses of Quranic, he issues a fatwa on equality of blood money for men and women.

Reducing Distinctions by Rethinking Usuli Rules

This approach seeks transformation in the process of inference by rethinking the foundations and methodological principles of Fiqh. According to this attitude, some common principles may not be efficient for meeting the needs of our time. Citing new foundations such as the Authority of speculative reason (Hujjiyyah of Aql-e Zanni) alongside verbal religious evidence, or revising the authority of the hadith narrated by a single trustworthy person only (Khabar Wahid) are examples of this efforts that can lead to completely different results in women's issues.

In this context, Muhammad Sadeqi Tehrani does not consider Tradition (Sunnah) to be even a uncertain proof due to problems such as objections in the chain of narratives the (Rijal), lack of Tawatur (abundant transmission), contradiction and conflict of them, possibility of fabrication, possibility of Taqiyyah (prudence and dissimulation), quotation of the content of words, and possibility of fragmentation. He believes that the Quran, i.e. its appearances and explicitly texts, is the main reference for inferring rulings, and it is at the highest level because it does not have the problems mentioned. For example, in the issue of blood money, based on strong opposition to the famous hadith of Aban he cites the absoluteness of two verses "So if anyone commits aggression against you, attack him as he attacked you" (Quran 2:134) and "an equal wound for a wound" (Quran 5:45) and attempts to prove the excess of blood money for 4 fingers of a woman over her 3 fingers, in opposition to the mentioned hadith and the famous opinion.