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Women's Participation in Majlis ash-Shura

Sherman Abd al-Hakim Jackson

Editor: This essay was originally a private communication sent by Dr. Jackson some four years ago following a MANA meeting. It was drafted in a single sitting and not written as an article to be placed in the public. We felt, however, that it spoke to issues of importance and usefulness to the community. We are thankful to Dr. Jackson for his permission to print this piece.

15 May 2001

As-salamu alaykum wa rahmatullah
Pursuant to the request to record my preliminary view on the issue of women's participation in and serving on a Majlis ash-Shura. I am sending the following. Please note that this is neither a fatwa nor an attempt to treat this topic exhaustively. It is, again, my preliminary reaction to the question based on insights gained from my limited training here and abroad over the past two decades.

 

Let me begin by stating that the issue of women's competency, particularly their mental competency, has been debated among the fuqaha, from virtually the beginning. I am sure most of you are aware of the debates on issues like woman's testimony and women serving as judges. Some of this debate has been based purely on the jurists' interpretations of Quran and or Sunnah. Other views, unfortunately, have been overly and unjustly influenced by individual jurists', (or that of the cultures out of which they operated) views about and biases towards women. This is an unfortunate tendency that MANA -and any other organization that purports to be Islamic -must take every precaution to avoid. We must remember the words of Allah "And if you differ regarding a matter, refer it to Allah and His Messenger, if you believe in Allah and the Last Day."

 

Many brothers may take exception with the claim that some of the fuqaha of the past allowed their personal views to got the better of them. They may see this as being disrespectful of the ulama and the tradition of the Pious Ancestors. Let me just say that the greatest scholars of the past recognized that this was a problem and saw it as precisely their duty to rid the shari`ah of all such personal biases. This was in part what al-Shafi`i was claiming in his criticisms of Malik (and I am a Maliki); this is what ibn Taymiyah sought to do throughout his life; this is what al-Shatibi sought to do; and the list goes on and on.

 

With regard to the issue of women, however, I would like to give one example of how the ulama of the past lived up to their responsibility to serve as a check on each other's biases. In his masterful work, Nafa'is al-usul, the great Egyptian Maliki jurist, Shihab al-Din al-Qarafi (d.684/1285) cites an opinion of the great Shafi`i mufassir and legal scholar, Fakhr Al-Din al-Razi (d. 606), regarding the mental competency of women. Now, al-Qarafi was a great fan of al-Razi and considered him to be the imam of usul al-fiqh (legal theory). In fact, al-Qarafi's work, Nafa'is al-usul was a commentary on al-Razi's al-Mahsul. Anyway, the view of al-Razi ran as follows: Women, he said, unlike men, were not required by God to know the meaning of the Quran. Rather, they were only supposed to seek their knowledge and understanding of revelation from male ulama. Al-Qarafi takes exception with this view and states the following:

 

This claim in its unqualified form is baseless. Rather, women are like man in every aspect of the shari`ah, except those in which there is proof to the contrary. Just as it is not incumbent upon women who are mentally incapable of understanding the details of revelation to try to understand such details, it is not incumbent upon men who are mentally incapable of doing so. And, just as it is incumbent upon men who are mentally capable of understanding revelation to apply themselves to doing so, so it is incumbent upon mentally capable women. Would it be permissible for us to say that Aishah (R) was not required to understand revelation, despite the Prophet having stated about her, "Take half your religion from this woman"? Indeed, how many great and noble women has this ummah of Muhammad (s) known whose accomplishments in knowledge and deeds outweighed those of the greatest scholars. Thus, the bottom line is that men and women are equal in their responsibility toward gaining knowledge and understanding of revelation. This does not negate the fact that the number of women who are excused from this obligation, due their incapacity, is greater than the number of men who are excused for this reason. For this is simply a function of women's nature. And these are the women to whom revelation must be explained. But the same holds for men who are incapable. Thus, this particular distinction (cited by al-Razi) between men and women is baseless, unless we quality it by saying that incapable men are equally excused. In this case, the distinction would be between those who are weak-minded and those who are not, not between men and women, in which case the principle (cited by al-Razi) would stand on solid ground. But I am shocked at how so many scholars could agree with al-Razi on this principle as he stated it and at how they proceed as if it were sound, e.g., the author of "al-Mu`tamad," and al-`Alami, the Hanafi, and the author of "al-'Umad," and Qadi Abu Ya`la, the Hanbalite, and numerous other authors. And this obtains despite the fact that this principle regarding women is clearly baseless, as you have seen me prove. (Nafa'is, 5: 2387)

 

Having established this, all of us -- men and women -- need to take extra-special care to ensure that we are not being overly influenced by our biases or prejudices or even traditions. With this said, let me turn to the specific issue of women serving as Majlis Shura members.

 

This issue was actually addressed directly by Shaykh Muhammad Sa`id Ramadan al-Buti of Syria in a small-collection of fatwas, Qadaya Fiqhiyah Mu'asirah (pp. 165-179). Shaykh al-Buti begins by stating that shura is a basic Islamic institution. He then notes that many have raised the question of whether gender, specifically maleness, is a qualification that those who serve on a majlis shura must meet. Before entering into his answer, he notes that this issue has suffered from two tendencies 1) weak attributions of opinions to the ulama of old; and 2) carelessness with regard to observing all of the shari`ah proofs and the rules of legal interpretation.

 

As for his specific answer, Shaykh al-Buti states that there is no precedent that he knows of among any of the schools of law for considering gender as a precondition for serving on a majlis shura (p. 168). He goes on to indicate that the view holding gender as a precondition is a modern development and that, to his knowledge, the first jurist to advocate this view was Shaykh Abu A`ala al-Mawdudi (H). Shaykh al-Buti rejects the view of al-Mawdudi andShaykh al-Buti begins by noting that the practice of seeking advise from female Muslims goes back to the Prophet and continued through the Khulafa Rashidin and down through the ages. The Prophet (s) sought the advise of Umm Salamah; the Companions sought the advise of 'Aishah; 'Umar sought the advise of Hafsah; and so forth and so on. He quotes the opinion of al-Mawardi, on the correctness of which he implies there is consensus, to the effect that everyone who may give a fatwa may also be sought out for advise. He cites several other scholars who echo this rule and states explicitly that women can be muftis, even if the majority, excluding the Hanafis, says that women cannot be judges.

 

From here Shaykh al-Buti moves on to discuss the opinion of al-Mawdudi. Al-Mawdudi based his view, according to Shaykh al-Buti, on two main proofs: 1) the verses from Surat al-Nisa' "al-rijal qawwamuna `ala al-nisa' (men are the caretakers of women)" and 2) the hadith of the Prophet (S) in which he stated, "No community who hands their affairs over to a woman will prosper." Shaykh al-Buti adds that in his book, al-Hijab al-Mawdudi had added that allowing women to be members of a majlis shura would lead to mixing of the sexes and violate the protocol of Islamic modesty.

 

In a nutshell, Shaykh al-Buti argues that al-Mawdudi wrongly equated the office and function of "caretaker" as it applies to a man in his capacity as husband and head of household with the broader function of "caretaker" in society at large. He states that the verses in Surat al-Nisa', are speaking about managing the household and that this in no way preempts women in general from contributing to the welfare of the community at large, even as advisors. He cites as proof in this context the verse, "Wa al-mu'minuna wa al-mu'minat ba`duhum awliya' ba`d (and the believing men and women are caretakers one of another)." Thus the verse, al-rijal qawwamuna `ala al-nisa' cannot serve as proof to support Shaykh al-Mawdudi's position.

 

As for the hadith, "No community who hands their affairs over to a women shall prosper," Shaykh al-Buti simply indicates that it may be a valid proof for denying women the executive position of head of state, but the discussion is about shura, i.e., giving advise to the holders of power, not about seizing power itself.

 

This leads to another point that al-Mawdudi had made, namely that a majlis shura effectively goes beyond merely giving advise and actually functions as an executive power, inasmuch as its collective decisions are typically binding on the community as a whole. As such, it effectively functions as a head of state and thus falls under the hadith, "No community who hands their affairs over to a women shall prosper."

 

Shaykh al-Buti responds. First, this is not the only way in which a majlis shura can function. The fact that a majlis may function like this cannot be a justification for attributing this quality to all of them. Second, even if we concede that a majlis shura has an executive function, this does not mean that each individual woman who serves on the shura is assuming ultimate authority over the community, e.g., as would a caliph. Rather, the majlis enjoys this executive power as a whole, and it cannot be said that any individual member is acting as executive. Third, even if we assume the hadith (and the ayat) to be speaking about executive authority in general, we cannot argue on the basis of these proofs without first making sure that there are not other proofs that might qualify them. In other words, though the verse and hadith may speak in general terms, they may mean something very specific. They may mean some forms of executive power but not necessarily all forms. As proof in this regard, Shaykh al-Buti notes that there is unanimous consensus that women can serve as executors of waqfs or of the estates of orphans and that Hafsah (R) even undertook the task of collecting and distributing sadaqah. All of these are executive functions. Thus, even if they had understood the verse and hadith to ban women from executive functions in general, the Companions and the ulama' after them understood certain executive offices such as these to be exempted from that ban.

 

Shaykh al-Buti ends his discussion by stating: "There can be no doubt that denying women this or any other right that Islam has conferred upon them, on the argument that women are capricious and emotional or that their exercise of this right will lead to mixing of the sexes -- this will not devolve upon women or the community at large with any good in these times of ours. Rather, all good will come from our acting with integrity as trustees over this Sacred Law, by not changing anything or substituting any one ruling for another, and by giving everyone their due right. At the same time, we remind our sisters of the duty that Allah has imposed upon them, as an honor and a protection, that they guard and not expose themselves, so that their contributions to the community will be free of counterfeit and flawed deeds and far removed from slippery slopes and avenues to corruption.

 

In light of this and other considerations that I do not have time to go into now, in my view, there is absolutely no shari`ah reason from excluding women from the majlis shura nor for limiting the number who might serve (i.e., on any basis different from that by virtue of which we limit the number of men). I am aware that there are numerous sisters out there, who, because of frustration and having been ignored and rebuffed by brothers, are presently in the grips of secular feminism without even knowing it. I am just as troubled by this problem as any of the other brothers. In my view, however, inclusion is the antidote to this problem, not exclusion. And I personally will hold our sisters to very high standards in terms of pursuing their rights and preferences on the basis of what Allah and His messenger have left us, not Gloria Steinam, Mary Daly or the secular trends of American pop-culture. But again, our sisters should be allowed to contribute to the welfare of the community to the extent that their knowledge and or experience allows. And I don't think they should have to beg us to exercise rights that have been given them by God. I pray that Allah will guide us all to that which is most pleasing to Him. And I pray that whatever mistakes or excesses may have crept into this missive He will forgive and you will overlook and correct. I hope what I have written helps and does not make matters worse. Please keep me in your du`a.

Your brother in Islam,
`Abd al-Hakim Jackson

Thus, have We made of you an Ummat justly balanced, that ye might be witnesses over the nations, and the Messenger a witness over yourselves; and We appointed the Qibla to which thou wast used, only to test those who followed the Messenger from those who would turn on their heels (From the Faith). Indeed it was (A change) momentous, except to those guided by Allah. And never would Allah Make your faith of no effect. For Allah is to all people Most surely full of kindness, Most Merciful.

Quran: 2:143
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