Women in traditional Sharīʾa: a list of differences between men and women in Islamic tradition

Abstract

This article surveys early Islamic legal opinions concerning differences between women and men related to law, politics, and personal conduct. Contained in a 2nd/8th century tract, a list distinguishing features of the sexes reflects notions held by the very young Muslim community–both Shī܂ī and Sunnī–on gender. It represents one of the earliest examples of what remains a common stance of Muslim modernists who espouse the idea of “equality but not uniformity” in discussing the status of women and women's rights in Muslim contexts.

Keywords:

• women
• gender
• ḣadīth
• equality/uniformity
• Muṭahharī
• Jābir b. Yazīd al‐Ju܂fī

Notes

¹Murtaḍā Muṭahharī, The Rights of Women in Islam (World Organisation for Islamic Services [WOFIS], Tehran, 1998), 124. In the same chapter Muṭahharī goes to some length to explain on a natural law basis how those dissimilarities do not necessarily mean discrimination (see also his Islām va muqtaḍayāt‐i zamān (Adrā, Tehran, 1370 [1991]) 1, 305–11). While some of his arguments have been criticized, his theory of “equality but not uniformity” has generally been accepted and remained as the standard answer by many Muslim modernists down to our time.

²For example, Muḥammad al‐Raḍī al‐Raḍawī, Fawāriq bayna al‐rajul wa‐al‐marʾa (Tehran, 1392/1971–72); ܃Abd al‐Karīm Zaydān, al‐Mufaṣṣal fī aḥkām al‐marʾa (11 vols, al‐Risalah, Beirut, 1993); and Murtaḍā al‐Mīlānī, Aḥkām al‐marʾa fi ʿ‘l‐Islām (Qum, 2003).

³For example, Maryam Sāvijī, Ikhtilāf‐i ḥuqūqi‐i zan va mard dar Islām va qavānīn‐i Irān (܃Alī Akbar ܃Ilmi, Tehran, 1958); Ibrāhīm Shāfiʾī Sarvistānī, Tāfawut‐i zan va mard dar diyah va qiṣāṣ (Safir‐i Ṣubḥ, Tehran, 2001); and Muḥsin Jahāngīrī, Barrasī‐yi tamāyuz‐hā‐yi fiqhi‐yi zan va mard (Būstān‐i Kitāb Qum, 2006).

⁴On him and his works, see Wilfred Madelung, ‘Jabir al‐Djuʾfi’ in The Encyclopaedia of Islam (2nd edn), XII (Suppl., Brill, Leiden, London, 1960–2005) 232–3; and Hossein Modarressi, Tradition and Survival: A Bibliographical Survey of Early Shiʾite Literature (Oneworld, Oxford, 2003), 86–103.

⁵On him, see Martin McDermott, ‘Ebn Babawayh’ in Encyclopaedia Iranica, VIII, 2–4.

⁶The work has been repeatedly translated into Persian. My English translation is based on two different Persian translations by Muḥammad Bāqir Kamarahʾī (Islamiyyah, Tehran, 1375/1956) and Murtaḍā Mudarris Gīlānī (Javiidān, Tehran, 1350 1971).

⁷Ibn Bābawayh, Kitāb al‐Khiṣal, Persian trs Muḥammad Bāqir Kamarahʾī, II, 373–6, and Murtaḍā Mudarris Gīlānī, II, 208–11.

⁸Al‐Ḥākim al‐Naysābūrī, al‐Mustadrak ܃ala ‘l‐Sahihayn (Hyderabad, 1334/1915), II, 396. The reference against teaching women how to write is so deeply engraved in traditionalists’ minds that an Indian Muslim author wrote a monograph arguing for its legality: Muḥammad Shams al‐Ḥaqq al‐‘Aẓīmābādī, ‘Uqūd al‐jumān fī jawāz taʾlīm al‐kitābah li ʿ‘l‐niswān (Pakistan, 1988).

⁹For instance, Ibn Rushd, The Distinguished Jurist’s Primer, trs Ikram Ahsan Khan Nyazee (Garnet, UK Reading, 1994), I, 174 (women are not required to pray Friday prayer), 272 (what part of the woman’s body the one who performs the funeral prayer stands at), 398 (a woman does not raise her voice with the talbiyah in pilgrimage to Mecca), 455 (women do not participate in jihād), 483 (women do not pay jizyah), 546 (a woman does not slaughter an animal); and II, 553 (women do not act as judges).

¹⁰For a discussion, see Mahdī Mihrīzī, Zan va farhang‐i dīnī (Hast‐namā, Tehran, 2003), 89–102.

¹¹The best‐known among them being IV, 33: “Men are the managers of the affairs of women for that God has preferred one of them over another, and for that they have expended of their property. Righteous women are therefore obedient …” and II, 282: “When you contract a debt … call to witness two witnesses from among your men, and if there are not two men, then a man and two women … so that if one of the two women gets confused, the other one can remind her.”

¹²Modarressi, Tradition and Survival, 94.

¹³Examples were mentioned above in notes 2 and 3.