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The Political Competence of Women in Islamic Law

By:
Ahmed Zaki Yamani
Document type:
Articles and Essays

The Political Competence of Women in Islamic Law

Ahmed Zaki Yamani

Commentary

Born in Mecca, Saudi Arabia, he was educated at Cairo University and at New York University Law School; he received his LL.M. from Harvard University School of Law. He serves as Minister of State and was Saudi Arabia's Minister of Petroleum from 1962 to 1986 and subsequently OPEC's first Secretary General. A specialist in law and Islamic law, he is regarded as the founder of many of the kingdom's modern laws and regulations.

Yamani here posits God’s intention to treat men and women as equal partners on earth. The only distinctions permitted between people, including between men and women, are those drawn in terms of their piety. Yamani says that texts that appear to do otherwise, such as Qurānic verses mandating a lesser share of inheritance for women, are to be seen as exceptional. Distinctions regarding inheritance “have obvious financial reasons,” although he does not state what these are. Yamani asserts that women’s political participation is a legal duty in Islam but that it requires “a major juristic interpretive effort” to change the social climate that has obstructed such participation in reality.

One of the most controversial topics in our Arab and Islamic societies is the question of women participating in public life and, particularly, working in the political arena. The opinions pro and con are generally based upon texts that are interpreted in different ways according to local custom, the social environment and the particular jurist's willingness to respond to changing circumstances.

There are people who look at the question of women's political activity with a western eye and who attempt to force Islamic texts into a semblance of agreement with the western point of view; but while the political emancipation of women in the West was due to secular development the Muslim position on reform and progress actually stems from the sacred texts of both the Qur'an and the Sunnah, illuminated by the maqasid [purposes and objectives] of Shari’ah, prevailing circumstances, and customs which do not clash with the texts but rather move companionably alongside them.

Perhaps one of the most important distinctions between the Islamic point of view and the western point of view, whether it be secular or re-ligious, is that Islam is based on the concept of tawhid [oneness] in belief and in life. God is one and unique, humanity is one.

The idea of oneness for Muslims derives basically from their belief in one God, one universe and one humanity. Muslims therefore do not conceive of duality or trinitarianism in their religious belief, their pattern of life or their view of the universe.

Another important concept in Islamic philosophy is the khalifah vested by God in man. For when God created Adam and before He breathed His spirit into him He said to the angels: “I am putting on earth a khalifah.” The khalifah here was not for Adam alone but for Adam and Eve and their offspring male and female.

The Qur'an is repeatedly inclusive as in “And their Lord responded I do not allow your deeds—be you male or female—to go to waste. You are of each other.” “Whosoever, male or female, does good deeds and is a believer We will give unto them a good life and their reward shall be yet better than their deeds.” “O people we have created you of male and female and made you into nations and tribes that you may get to know one another. The most honored amongst you in the eyes of God is the one who heeds Him most, for God is knowing of all things.”

The concept of the khalifah rests on the oneness of women and men within a relationship expressed in the Qur'an as “. . . and the believers, men and women, guardians over each other. . . .” This is a common and mutual guardianship, governed by a bond of faith within the framework of one nation. So it is proved that equality between men and women is the orig-inal condition, an equality between partners in God, and so it is that the Prophet said “Women are an equal part of men.”

Men and women are equal in their human value, their social rights, their responsibilities and their subjection to reward and punishment. This equality, in turn, is built upon the oneness of their origin and their destiny: their accountability on the Day of Judgment.

Some may put forward the rules specific to woman such as her liber-ation from some economic burdens or her different portion of inheritance. But these are exceptions to be seen against the backdrop of the general rule of equality. They have obvious financial reasons and cannot in any way affect the general principle of equality.

Al-Imam Ibn Hazm says “As the messenger of God was sent equally to men and to women, and as the speech of both God and His Prophet was addressed to men and women, it is not permissible to exclude women from any part of this except on the evidence of a clear text or unanimous opinion as this would be takhsis al-zahir [qualifying the obvious] which is not permissible.”

This position is not weakened by the attempts of some jurists in the past to exclude women from Qur'anic discourse except where there is clear evidence to the contrary, for other jurists insisted that women cannot in fact be excluded from Qur'anic discourse except where the evidence for such exclusion is clear. It is to the latter school that the opinion of Ibn Hazm quoted above belongs.

Work or action [‘amal] is an essential component of Islamic belief and Shari’ah as proclaimed by the Qur'an. [In the classification of actions], politi-cal action falls into the category of wajib [duty] . . . a duty which—although obligatory—does not have to be performed by every individual as long as enough individuals perform it, the rest are relieved of it. . . .

There is a clear difference here between political rights as a western concept, and the Islamic view which sees political action as a duty stemming naturally from the concepts of oneness and stewardship working for the good of the nation as defined by Shari’ah.

This duty, known in the West as political rights, falls upon every Muslim individual whether male or female in accordance with their ability, com-petence and resources. It is both an individual political duty and a communal co-operative duty; individuals are required to assist those who perform the communal duty and to assist the State in carrying out its obligations.

The difference between seeing political action as a right and seeing it as a duty is, of course, that a duty has to be performed while a right may or may not be used.

The Islamic concept is flexible, vital, dynamic. The imposition of a duty is in harmony with its own freedom of movement, with the legitimate interests of the individual and her/his ability to perform the action, for no-one may be commissioned to perform an action which they are unable to perform and God requires of each person only what that person is capable of.

When we study the question of woman's right to the offices of State, therefore, we ask: Which woman? What are her abilities? What is her degree of competence? We do not speak of “woman” in general and thus exclude her from the legal discourse describing a Muslim's duties.

Women's Political Competence

Although many Muslim writers love to hold forth on the rights gained by women under Islam, many of them have also adopted the concept of the social division of work: a woman's work is in the home looking after the family, while a man's work is out in the public realm earning money for the family. These writers admit that equality between men and women in both rights and duties is the base line in Islam, and yet some of them see that women should not push themselves into political affairs and that the political participation of women at the time of the Prophet and the four khalifahs following him was a matter of individual cases.

No Muslim man or woman is required to perform legal duties or obligations—including political duties—unless they are competent to perform them. Jurists divide competence into a “competence of duty” and a “competence of performance.” The first describes a person's suitability for a legal requirement (or right) to fall upon her/him. The second is a person's suitability to act in a manner that is recognized legally.

Books of jurisdiction and civil law are full of explanations and detailing of competence in various areas—but not the political. The political competence of a woman is her suitability to participate in every activity in an Islamic society. Muslim jurists have affirmed women's competence in all civil matters—although their opinions vary on some details—but many of them have reservations regarding her political competence and have considered it deficient. They have employed evidence such as the hadith “deficient in mind and in religion” and considered deficiency a corollary of femaleness. This led to the removal of some duties from Muslim women such as jihad and attending public meetings, and from non-Muslim women such as payment of the jizyah [the tax payable by non-Muslims in lieu of the zakah tax paid by Muslims]. In this the jurists took no account of the different levels of political competence which fall into:

a. The “general competence” of all Muslims to take part in, for example, the bay’ah and the shurah

b. The “general competence in a specific area” such as the communal duties which may become—in certain circumstances—individual duties, e.g. jihad, where preparation and training are needed.

c. The competence specific to duties that can only be communal such as the holding of office: this is the competence that requires innate or natural abilities but which may also benefit from acquired skills.

So much for the political competence of woman, it remains to be said that her actual practice of her duties in this field has to be related to her degree of political awareness and know-how; she should have attained a level of education, knowledge and experience which enables her to exercise her political competence. In this she is no different from man.

There is no doubt that the social conditions prevailing in Muslim society have a crucial role to play in enabling women to play their part in political life—or in rendering them unfit to perform this duty. I will come to this later.

In the early days of Islam God lightened women's load and did not oblige them to attend public meetings. But they were obliged to attend communal prayers for the two major festivals: ‘Id al-Fitr [the festival marking the end of Ramadan], and ‘Id al-Adha [the festival, during the pilgrimage, celebrating Abraham's sacrifice of a sheep instead of his son].

The attendance of women at the ‘Id prayers is not simply permissible; it is obligatory, as is their attendance at communal prayers called to discuss important matters or make known important news.

Participating in communal prayers where important public matters are discussed is one of the duties of women.

But the weakness which afflicted Islamic progress after the age of the Prophet gradually had a negative effect on the status of women. And it was helped by the pressure of custom; legislating texts started to be used in a manner that reflected custom and ignored the overall vision of those texts and the purposes of Shari’ah.

We have seen the importance of the level of a woman's awareness in her performing her political duties. We should now examine the influence of the social conditions that encourage or deter this political participation.

Social conditions were changing from the start, and the change was to the advantage of the society of Madinah rather than that of Makkah. The female Companions, particularly from the Ansar, took part in various activities. They attended prayers at the mosque and listened to the sermon. Some of them opened their houses to guests and hosted the immigrant Companions.

This development in the social conditions of Madinah took place under the aegis of Islamic Shari’ah and not in conflict with it. It is an example of social change that can now be broadened and extended. But it needs an effort from women to raise themselves to the task, and it needs juristic endeavor to support them in this—all within the framework of the definite texts of the Qur'an and the Sunnah and taking into account their purposes and their occasions.

In the West, woman's participation in politics is built on the bond of citizenship. It is a right that woman demands, a goal she works towards, a social status she desires. In the Islamic view this participation is a legal duty and a responsibility a woman has to prepare herself to fulfill. A major jur-istic interpretative effort should support her with the aim of effecting change in the social climate so that it accepts this participation and approves it.

The political participation of women in the West generally begins with the vote. This participation is then channeled through institutions and is aimed at influencing the decision-makers and promoting political stability. The Islamic view of the political participation of women starts with the idea of the religious-legal good, maslahah. The ummah, the nation, is the prime mover; institutions are merely instruments to bring about this maslahah. Women's political action therefore is in harmony with the rules and purposes of Shari’ah and with maslahah, the public interest. Bay’ah, wilayah and shurah are the means by which the main purpose—al-maslahah—is attained.

In Islam bay’ah is the most prominent political act. It is bay’ah that legitimizes a government, it is the contract of loyalty to that government and it is the right of every Muslim male or female.

The bay’ah has more or less disappeared from the political life of most Islamic states (except for some who cling to its form) but it is important for understanding the Islamic basis of our research on the public wilayah of women, or women and the offices of state.

It is difficult to find in the books or religious-legal politics or the works of jurisprudence generally a specific definition for public wilayah. In books that appeared in the later ages there are definitions—but they vary. We can say that wilayah is a legal authority that derives its power from religious law, Shari’ah. In this it differs from a post or an office which derives its power from the State and conforms to its rules and laws.

Public wilayah includes the Supreme Wilayah which is the khilafah, the leadership itself, followed by the judiciary, the hisbah and the shurah. These are all communal wilayahs, they are not posts but responsibilities.

Jurists are unanimous in that woman is not eligible for the khilafah because it includes religious duties which she cannot perform—even though she might be competent to perform its worldly or temporal duties. This opinion therefore does not affect her right to be Head of State or Prime Minister if that falls within her competence in a democratic state based on shurah.

With regard to the judiciary some jurists have seen that a woman may be a judge of matters in which she can bear witness, others have said simply that she may be a judge. Among those is Ibn Jarir al-Tabari who allowed that a woman may be an absolute judge of anything. He was followed by many jurists, among them Ibn Rushd (Averroes), Ibn Qudamah, Ibn Hazm and al-Shukani. We note here that women have become judges in the Islamic Republic of Iran.

As for hisbah, Ibn al-Khattab, appointed al-Shaffa’—a woman—for the judicial hisbah of the markets in Madinah.

We know also that women performed the duty of shurah and gave their opinion on many occasions in the time of the Prophet and the khilafah immediately following. Women perform their consultative duties in various ways: for example, to interpret the texts and give an opinion is a communal duty, jurists are unanimous therefore in allowing women's participation in discussions in jurisprudence of a legislative nature. Women also take part in consultation on specialized or technical matters where the criterion is professional competence. This too is a communal duty. They participate too in the general shurah as members of the ummah. This is an individual and binding duty.

It is true that women's actual practice of public wilayah only appeared intermittently during the Madinah years, but the fact that it appeared at all indicates its obligatory nature under different social conditions. The original condition for this wilayah is that it is obligatory but it was not possible to impose it on a society that was not yet ready to accept it in its fullest form. It was necessary to implement the idea gradually taking into account customs and the social environment, for we have seen how custom affected the position of women in Makkah, then in Madinah and so on.

The gradual introduction of rules is a known and accepted process in Islam; if the complete prohibition of alcohol had been suddenly announced Muslims might not have obeyed it.

I have restricted this paper on the public wilayah of woman to the opinions that have allowed it and their evidence for it on the basis of the Qur'an, the Sunnah, al-ijma’, al-qiyas and al-maslahah.

Today, all Muslims should look at the activities in which woman takes part on the basis of her political competence in the Islamic system, we should look at them from an usuli perspective; that is the perspective of what was practiced originally (in the time of the Prophet). I have presented this as an example that can be followed and applied to our political life today in standing for parliament, the right to vote, the right to hold political office such as ministerial posts, or to hold posts in the judiciary. These should all be determined by the ability of a woman and her knowledge, adapted to social conditions and within the framework of the texts and purposes of Shari’ah.

I should point out that the Muslim woman has practiced her political competence with distinction. Biographies speak of the many women who spoke publicly against Mu’awiyah and supported the Imam ‘Ali ibn Abi Talib. And even after Mu’ awiyah took power the books speak of the women's debates and disputations with him. We mention Sawdah bint ‘Imarah ibn al-Ashtar, Bakkarah al-Hilaliyyah, al-Zarqa’ bint ‘Udayy ibn Ghalib ibn Qais al-Hamadhaniyyah, ‘Akrashah bint al-Atrash, Darmiyyah al-Hajuniyyah and Arwa bint al-Harith ibn ‘Abd al-Muttalib. Looking through the history books one wonders at their eloquence, their rhetoric and their personalities. One admires their political astuteness. Note Hind bint Yazid al-Ansariyyah who opened her house in Iraq to become a politi-cal club for those opposed to Mu’awiyah. Men went there to consult with each other and Hind herself was eloquent, logical and persuasive. Ibn Jarir has written of her work and her rhetorical skill.

In the vanguard of women who distinguished themselves through effective and powerful political action is Umm Kulthum bint ‘Ali ibn Abi Talib. It was she who accompanied (her nephew) ‘Ali ibn al-Husayn ibn ‘Ali to Kufah in the year 61 of the hijra where her speeches moved people to such an extent that al-Imam Khaddam al-Asadi wrote of her: “I have never seen a more eloquent woman . . . as though she spoke with the tongue of the Prince of the faithful, ‘Ali. She gestured to the people to stop and their very breathing ceased, then she spoke and their tears ran into their beards.”

In the fields of religious studies and hadith narrative (riwayah) women distinguished themselves over men in that there is not one known case of a woman accused of inaccuracy in her riwayah. But this is a topic which is far too large to go into here.

It is also important to remember that the history of Islam is full of Muslim women rulers and administrators. We mention Lubna who was appointed by the khalifah, al-Hakam ibn ‘Abd al-Rahman al-Nasir, to head his office. She wrote his letters to the governors and those in authority, she administered his affairs and kept his secrets. We mention also Queen Arwa bint Ahmad, the wife of King al-Akram. She reigned in Yemen for 40 years at the end of the 5th century hijrah (the 11th century AD) and many books have been written documenting and analyzing her scientific, political and administrative achievements. Then there is Safiyyah Khatun (the niece of the Sultan Salah al-Din al-Ayyubi) who took the throne in Aleppo in the year 643 of the hijrah after the death of her father, Kung al-‘Aziz, and ruled for six years. And Fatimah bint al-Hasan ibn Muhammad ‘Ali, the Queen of San’a’ in the Yemen, who annexed Sa’da and Najran. And Safwat al-Din Banishah bint Qutb al-Din (daughter of the sixth king of the Qatghali dynasty), Queen of Karman. Two queens ruled in India in Islamic times: Skandar Begum and Shah Jihan, besides the Empress Nur Jihan who ruled Northern India in 1620 AD and had Indian coinage struck in her name. She was famous for her resolution, her wisdom and her good management of her country's political and military affairs. In Indonesia several women ruled between the years 1641 and 1688 AD, among them Safiyyat al-Din Taj al-‘Alam, Naqiyyah Shah, ‘Inayet Shah and Kemalet Shah.

These shining examples in the chronicles of Muslim women fulfilling their political duties fill us with pride. They also fill us with sorrow at the condition of women in some of our Islamic societies, at the way they are treated and at their being deprived of their God-given rights.

I end this paper by saying that Islam does not minimize the political competence of woman or deny it. That a woman's execution of her communal duties in this field is contingent on her abilities—and these are clearly developing and maturing—and on the social conditions of her society. The view that Islam prohibits men and women from mixing and holds that women should therefore refrain from taking part in any political activity (since that necessitates mixing) is a view to be rejected. The society of Madinah at the time of the Prophet saw men and women mixing in the markets and the mosque. What is prohibited in Islam is for a man and a woman to be alone illegitimately. The example we can give of this is a man visiting a woman in the absence of her husband [mughibah]. In this case the Prophet's instructions were that one man could not visit her alone but with one or two other to prevent suspicion. So is the visit of two or three men to the wife of a friend not mixing?

Then there is the case of Fatimah bin Shurayk whom the Prophet described as a women of many guests—to the extent that he forbade Fatimah bin Qays from spending her ‘iddah in her home as it was a house full of men.

It is the duty of Muslim jurists, whose minds God has illuminated so that they have understood Islam,—its Shari’ah and the purposes of this Shari’ah, and who have at heart the religious-legal interest of the nation—it is their duty to use their interpretative abilities to the full and to declare their opinions frankly and clearly, so that the status of women in our Islamic societies is not made to develop outside the framework of Islam.

It is the duty of Muslim rulers in societies controlled by the rigid, fossilized, narrow-minded rules which are ascribed to Islam to carry the banner of a true and developed Muslim campaign.

I am not a jurist and I do not carry the responsibility of declaring juristic opinions, but the rapid plunge towards a terrible abyss has alarmed me. I have offered this contribution as an appeal to be heard by specialists who understand the Shari’ah and its purposes, and who are as concerned as I about our current circumstances and what our future seems to be. Perhaps others will step forward to research and write and give their contributions, but God alone is our support and it is He who will guide us to the righteous path.

Bibliography references:

Reprinted by permission of the author.

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