Antecedentes de Investigación

There are four sources of law that result in rulings that depend on the circumstances that surround them. The first three are recognized as sources of legislation in the Mālikī and Ḥanbalī schools. These are juristic preference (istiḥsān) as conceived by the Mālikī and Ḥanbalī schools, preventing legal loopholes (sadd al-dharā’iʿ), and considerations of general welfare (al-māṣāliḥ al-mursalah). Local Customs (ʿurf) is recognized by all four schools, but in various limited capacities.

268 _{Elewa and Silvers, “I Am One of the People”, 156.}

A. Juristic Preference (Istiḥsān)

Istiḥsān, in the Mālikī and Ḥanbalī schools of law, is conceived of differently than in

the Ḥanafī school. Istiḥsān means to make an exception to a general legal precept where applying that precept would be contrary to the welfare of those who are subject to the resultant ruling.269 Due to the stress Ḥanbalī scholars place on direct textual evidence, it has very limited use to them, since it can never contradict specific textual evidence. Indeed, Ibn Qudāmah argues that the ruling relied upon by way of istiḥsān must itself be established by the Qur’an and Sunnah.270 Abd-Allah argues that it is one of the least authoritative sources of evidence in the Ḥanbalī school. 271 This particular source of law is not cited for questions of women’s leadership by any of the Mālikī and Ḥanbalī texts in the survey.

B. Preventing Legal Loopholes (Sadd al-Dharā’iʿ)

This source of law provides for the prohibition of acts that are in and of themselves permissible under circumstances where it is feared that those acts are being used as means for illegitimate ends. It is used primarily to prevent legal loopholes that undermine the intent of Islamic laws. Al-Qarāfī says: “Whenever a practice that is free from harm becomes a means to harm, we forbid that practice, and this is Mālik’s school of thought.”272 _{Like istiḥsān, the purpose of sadd al-dharā’iʿ is to prevent} harm and secure the welfare of the people. Its implementing requires a suspicion that the act is being engaged in for illicit reasons. It is not necessary to determine the true intention of the actor, which is impossible, but the circumstances surrounding the act itself must invoke suspicion.273

269 _{Al-Shāṭibī says: “Istiḥsān in Mālik’s school of thought is to adopt a particular consideration of}

welfare in contrast to evidence of a universal scope. It entails resorting to the evidence of such a consideration in preference to qiyās. The one who applies istiḥsān is not resorting to his mere personal tastes and preferences; but rather to what he knows to be the Lawgiver’s overall purpose.” Ibrāhīm b. Mūsā al-Shāṭibī, al-Muwāfaqāt. ed. Abū ʿUbaydah Mash-hur b. Ḥasan Āl Salmān. (Cairo: Dār Ibn ʿAffān: 1997), 5:193.

270 _{Ibn Qudāmah, Rawḍah al-Nāẓir, 2, 531.} 271 _{Abd-Allah, “Mālik’s Concept”, 246.} 272 _{al-Qarāfī, Sharḥ Tanqīḥ al-Fuṣūl, 436.} 273 _{Abd-Allah, “Mālik’s Concept”, 263.}

An illustrative example of the application of sadd al-dharā’iʿ is where the Mālikī Law prohibits a father to revoke a gift to a child if that child has used that gift in a subsequent transaction. The normal ruling in Mālikī Law is that a father can demand his child return the gift at any time. However, if that child has used the gift as collateral for a debt, or has used the gift as an enticement to secure a marriage suit, then the revocation of the gift becomes unlawful. This is to prevent fathers and their children colluding to use the father’s option to revoke a child’s gift as a means to cheat other people.

Al-Rajrājī makes reference to sadd al-dharā’iʿ as a formal legal principle in Manāhij

al-Taḥṣīl while discussing women leading other women in prayer. He argues that

Mālikī jurists prohibit women-only congregations by applying a general legal axiom that “whenever means are prevented, the category of rulings involved are to be taken as a unit.” What this means is that preventing women from leading men in prayer is a case of preventing the means to harm, and since means are being prevented, it should be done in all relevant instances. Al-Rajrājī differs with his school’s ruling on women-only congregations, so he then goes on to argue that women-only congregations are not a relevant instance, since the harm which the ruling seeks to prevent is entirely absent. This illustrates how impermanent rulings based on sadd al-

dharā’iʿ are, due to their dependence on circumstances, and it is this impermanence

that al-Rajrājī is exploiting to refute the ruling. It must be noted, however, that al- Rajrājī is the only Mālikī jurist in the survey presenting the prohibition of prayer leadership as an application of sadd al-dharā’iʿ, and he does so to refute an established Mālikī ruling. Therefore, his claim should be taken with caution, as a possible straw-man argument.

C. Considerations of the General Welfare (al-Maṣāliḥ al-Mursalah)

This refers to the application of general considerations of welfare that are not specified by any textual evidence. It allows for the establishment of new legal rulings and the suspension of earlier rulings in consideration of society’s general welfare. This principle is also based on the belief that all of the rulings of Islam exist to realize

the welfare of human beings in this world and the next. 274 Some Ḥanbalī legal theorists reject this principle outright.275 Others, like Ibn al-Qayyim, have a more favourable attitude towards it.276 Still, Abd-Allah discerns a difference in the Mālikī and Ḥanbalī application of this principle in that Mālikī Law allows for such considerations to specify or temporarily suspend rulings established by textual evidence, where Ḥanbalī Law does not.277 For Mālikī Law, this means that general statements in the Qur’an and ḥadīth can be specified under any circumstance where applying the general meaning would result in negating the realization of human welfare intended by the text’s ruling, or in cases where doing would brings about an unintended harm.

Since the considerations of welfare that this source of legal reasoning is concerned with are those which are not expressly established by the sacred texts278, the legal theorists who recognise it have set down strict conditions for their validity. The most commonly cited of these conditions is that the resulting ruling does not bring about harm greater than the good it achieves. Also, according to al-Shāṭibī, considerations of the general welfare are never applicable in legal questions pertaining to matters of worship.279

Abd-Allah identifies two types of results that can be obtained from applying this form of legal reasoning.280 _{The first are those that introduce rulings having no precedent. A} clear example of this is Abū Bakr’s decision when he was Caliph to have the Qur’an compiled in a single volume. The second type of result is that which brings about a

274 _{Al-Qarāfī says: “God only sent the Messengers to secure the ongoing welfare of the servants. So}

whenever we find a consideration of welfare, it becomes our overwhelming belief that it is desired by the Law.” al-Qarāfī, Sharḥ Tanqīḥ al-Fuṣūl, 424.

275 _{Ibn Qudāmah says: “If a ruling is established on the basis of one of these considerations of welfare}

without knowing that the Law safeguards that consideration of welfare by establishing that ruling, then this is legislating on the basis of opinion, and giving legal verdicts on the basis of mere rationalisation.” Ibn Qudāmah, Rawḍah al-Nāẓir, 2:541.

276 _{See: Ibn al-Qayyim, Iʿlām al-Muwaqqiʿīn, vol. 3 for an extensive treatment of this subject.} 277 _{Abd-Allah, “Mālik’s Concept”, 269.}

278 _{Al-Qarāfī identifies three kinds of considerations: “Considerations of welfare, with reference to how}

they are recognized by the Law, are three categories: [1] what the Law attests to as being considered, which is the qiyās we have already discussed, [2] what the law attests to as being disregarded, like [the idea of] prohibiting the cultivation of grapes to curtail wine production, and [3] what it neither attests to as being considered or as being disregarded, which are the presumed considerations of the general welfare that Mālik recognises as evidence.” al-Qarāfī, Sharḥ Tanqīḥ al-Fuṣūl, 423-424.

279 _{He also mentions that istiḥsān does not apply to acts of worship. Ibrāhīm b. Mūsā al-Shāṭibī, al-}

Iʿtiṣām. ed. Saʿd b. ʿAbd Allah Āl Ḥumayd et al. (Saudi Arabia:Dār Ibn al-Jawzī, 2008), 2:72.

280 _{Abd-Allah, “Mālik’s Concept”, 276.}

ruling that suspends an earlier one, like the Caliph ʿUmar’s decision to suspend the practice of distributing lands of conquered territories among the soldiers.

D. Differentiating between these Three Sources of Legislation

The primary difference between istiḥsān and sadd al-dharā’iʿ is in their effect.

Istiḥsān makes allowances for acts that are otherwise prohibited, while sadd al- dharā’iʿ prohibits acts that are generally permissible.

Istiḥsān and sadd al-dharā’iʿ are clearly distinct from the applications of al-maṣāliḥ al-mursalah that introduce an unprecedented ruling. As for applications of al-maṣāliḥ al-mursalah which suspend pre-existing rulings, they bring about similar

consequences to the applications of istiḥsān and sadd al-dharā’iʿ. Abd-Allah identifies two differences. 281 The first is that al-maṣāliḥ al-mursalah relates to the welfare of society at large, while the other two legal sources deal with rulings that operate on the individual level. The second is that there is a sense of emergency in applying maṣāliḥ al-mursalah that is not needed for the application of the other two methods of legal reasoning.

An important feature that all three sources of legislation have in common is the impermanence of the rulings that result from them.282 _{Since these rulings are regarded} as means to an end and not an end in themselves, they are subject to change whenever their intended ends are no longer being realised.

281 _{Abd-Allah, “Mālik’s Concept”, 277.}

282 _{Al-Qarāfī says: “Rulings in their origins are two categories, [1] those which are intended in their}

own right (maqāṣid) for how they directly pertain to benefit and harm, and [2] those which lead to (wasā’il) those ends through their consequences. They are conferred with the same ruling as what their consequences bring about, whenter it be prohibition or permissibility, but they have a lower status than the rulings which are intended in their own right.” He then elaborates: “The principle is: Whenever the ruling intended in its own right ceases to be an issue, the ruling of what leads to it ceases to be considered, because it is subsidiary to it.” al-Qarāfī, Sharḥ Tanqīḥ al-Fuṣūl, 426-427.

E. Local Customs (ʿUrf)

Custom is recognised by all four schools of law, but it is presented in the legal theory works as having a very limited scope. Among other things, it has a crucial role to play in the practical application of Islamic legislation with respect to defining the intended meanings of terms under various circumstances. This is especially important for resolving the meaning of clauses in commercial and social contracts and determining what conditions are to be assumed to be in effect in a contract in the absence of an explicit contractual clause.283 Another use of local custom is to define the requirements of textually established Islamic laws where the sacred texts leave certain culture-dependent terms undefined. For instance, the ruling that men should not wear women’s clothing is established by textual evidence. However, what constitutes women’s clothing depends on the norms of the society where the law is to be enforced. Likewise it is used to define the parameters of customary usage (maʿrūf) when the sacred texts call towards observing it.284 Jurists might identify an effective cause for a ruling that depends on custom for its precise definition or for identifying its presence in a particular case.285

Rulings based on local custom are even more highly susceptible to change than the three forms of legal reasoning described above. They are very sensitive to changes in practice from one place to another and from one point in time to the next. They have no semblance of permanence. The limited formal recognition of custom as a source of law in works of legal theory and its contingent nature explains why custom is never formally invoked in the post-formative legal literature regarding questions of women’s leadership.

283 _{A-Sarakhsī gives the following example: “The specification [of meaning] is according to the}

indications of custom, but only when there is no explicit statement of intent for another [meaning]. In the event there is an explicit statement, custom ceases to be considered. This is like when someone makes a purchase in dirhams without specifying [the currency’s country]; the local country’s currency is specified by way of custom. If he explicitely makes the condition that another country’s currency is to be used for the purchase, custom ceases to be considered and the contract is binding according to what is explicitely stated. al-Sarakhsī, Uṣūl, 1:61.

284 _{For instance, Qur’an 2:233: “Mothers may breastfeed their children for two complete years for}

whoever wishes to complete the full period of nursing. Their support and clothing are incumbent upon the father in accordance with customary usage.”

285 _{Al-Qarāfī gives the example of high and low social status. He says regarding using a custom-}

dependent factor as an effective causes: “The condition is that it is consistently applicable [to the ruling] and easily discerned from other [attributes].” al-Qarāfī, Sharḥ Tanqīḥ al-Fuṣūl, 381.

F. Summary

These circumstance-dependent sources of law are not cited in the legal literature as evidence for the rulings under examination. The scholars understood questions of women’s leadership to be essential ones – conditions for the validity of the appointment – permanent rulings that do not change in response to the situation from one place or time to another. This is especially clear with the rulings on prayer leadership. The conditions of validity for the prescribed prayers are intrinsic to the prayers themselves. The prayer is either valid or invalid. Questions of women’s suitability for political and judicial appointment can easily be imagined as circumstantially dependent, but this is not how the legal scholars conceived of them. Had they placed any of these questions under one of the four rubrics discussed above, it would have been an admission to the transient nature of the rulings themselves; that they are subject to change at any time.

This means that post-formative jurists did not see these sources of law as furnishing evidence for these particular rulings. All the same, we can discern a marked impact that this form of legal reasoning has, especially on the schools of law that emphasise it. When we look at the works under survey, we find that the Mālikī and Ḥanbalī works often justify and defend their rulings by invoking the potential harms they avoid or benefits they secure. These justifications are less frequent in the Shāfiʿī and Ḥanafī works, as would be expected, but not entirely absent. This implies that these approaches to legal reasoning are more far-reaching in their effect on law than what their formal representation in legal theory indicates. They bear upon the rulings found in the post-formative legal literature, but not in a formally codified, systemantic way. The arguments invoked include the temptation women cause for men, the ineffectiveness of women in carrying out public duties, and the neglect of their proper domain of activity. Since all of these considerations deal directly with how women and their social roles are perceived, these arguments will be examined in greater detail in the next chapter.