Chapter 9: Islamic authority
By Khaled Abou El Fadl
In formulating Islamic law, it has become common in the modern age to use the authority of the Author (God) to justify the despotism of the reader. In effect, by claiming that the only relevant consideration is the Will of the Author, the reader is able to displace the Author and set himself as the sole voice of authority: the reader becomes God, as it were. The replacement of God’s authority with that of the reader is an act of despotism and a corruption of the logic of Islamic law.
Islamic law is founded on the logic of a Principal who guides through the instructions set out in texts. Those instructions are issued to the agents who have inherited the earth and who are bound to the Principal by a covenant. The point of the covenant is not to live according to the instructions, but to attempt to do so. Searching the instructions is a core value in itself – regardless of the results, searching the instructions is a moral virtue. This is not because the instructions are pointless, but because the instructions must remain vibrant, dynamic, open and relevant. It is impossible for a human being to represent God’s Truth – a human being can only represent his or her efforts in search of this truth. The ultimate and unwavering value in the relationship between human beings and God is summarised in the Islamic statement, “And, God knows best”.
Deferring to God and honouring the text requires a human being to exercise self-restraint in speaking for God and the text. But discharging the obligations of human agency mandates that the reader (agent) take his or her role very seriously by aggressively and vigorously investigating both God and God’s instructions. “God knows best” is not an invitation to intellectual complacency and smugness, but, as the Qur'an states, to realise that “over every knowledgeable person is One more knowledgeable” (12:76). Submission to God is at the core of the Islamic creed, but it does not mean blind submission to those who claim to represent God’s law, and it does not mean submitting to the contentment and comfort of arrogant self-reference. Submission to God means the will and act of engaging the intellect and body in the pursuit of God, but also the humility of knowing that no intellect or body can ever fully represent God. The Qur'an sums up this point by reminding the Prophet that even he has not been sent to control or dominate people, but to admonish and teach (88:21–2).
This reminder is particularly pertinent to those who place themselves in the position of the devoted sages of the Divine instructions. As special agents, they accept the responsibility of doing what is not feasible for everyone to do: they devote a lifetime to the study of the instructions. As the Qur'an states, the task of these special agents is to study the instructions and to share the results of their search with the common agents who ultimately bear the responsibility of acting according to the dictates of their conscience (9:122). The authority of these special agents is not inherent or institutional – it is persuasive. The common agents will and should defer to the determinations of these special agents, but only to the extent that the special agents are honestly and diligently representing what the special agents believe to be the Will of the instructions.
There are implied conditions that define the authoritativeness of the special agents. These serve as the basis for the deferential relationship between the special agents and common agents. They are: honesty, diligence, self-restraint, comprehensiveness and reasonableness. Violating these contingencies is a breach of responsibility and a betrayal of the trust that the common agents have placed in the special agents. These conditions act as constraints on the special agents, and as controls against possible abuses of authority and, ultimately, despotism. A violation of one of the enumerated conditions is an abuse that threatens to become a usurpation of the Principal’s authority. Authoritarianism of the special agent takes place when such an agent speaks for God without being authorised by the instructions to do so. This is well-represented by the Qur'anic concept of idhn, according to which it is a grave violation to speak for God’s law without proper authorisation (10:59, 42:21). At least when it comes to law, the primary form of authorisation is the instructions contained in texts. This necessarily means that the five conditions do not only apply to determining the meaning of the text, but also to verifying that the text has legal competency, which means verifying that the text is qualified to act as part of God’s instructions.
Special agents, like all readers, work within the context of interpretive communities. Interpretive communities develop habits, and these habits could be a line of precedents that are considered dispositive of an issue, or factual beliefs about social practices or propensities, or the method by which an interpretive community analyses an issue. The existence of assumptions within an interpretive community, in itself, is not authoritarian. However, these assumptions could lead to a breach of the conditions of authority pursuant to which the common agent defers to the determination of the special agent. If the special agent dogmatically treats these assumptions as part of the Principal’s instructions, or considers such assumptions to be indisputable or immutable, this is likely to lead to the corruption of the process and to authoritarianism. This is especially the case when the special agent refuses to acknowledge that assumptions are merely enabling or efficient tools and treats them as sacrosanct, or when the special agent fails to disclose the existence and the nature of these assumptions to the common agents.
Faith-based assumptions are always the most challenging and the most dangerous. By nature they are not accessible or sufficiently accountable to others. Faith-based assumptions are like saying, “I love God”, “God is most merciful”, or “God loves all people”. Such statements must be believed and felt to mean anything. They could be engaged and debated, and one can attempt to refute them, but fundamentally, they rely on what I call a collateral relationship with God. If, for example, I believe that God cannot and will not command anything that is immoral and ugly, there is no doubt that this will affect all my interpretive activities and legal determinations. I am not arguing that it is inappropriate or futile to argue about faith-based matters – far from it. Faith-based assumptions are influenced by a variety of human experiences including textual evidence, sociological experience, human temper and individual dialectics, but they are not determined by any of them. As such, faith-based assumptions do run the very high risk of becoming authoritarian. We witness this particularly in sectarian debates. Historically, Sunni scholars have rejected the determinations of Shi'i narrators of hadith and vice versa. In addition, the scholars known as ahl al-hadith dismissed the transmissions of the Mu'tazila, Khawarij and Shi'a as palpably false. Yet, faith-based assumptions are a matter of conscience and conviction, and so they cannot be dismissed as irrelevant.
The question becomes: what does a special agent do with faith-based assumptions? At a minimum, they must be honestly disclosed so that common agents may decide whether they share these assumptions or not. Moreover, it is important to remember that faith-based assumptions have a rather limited scope. If something is established in an interpretive community through rational analysis, factual determination or methodological choices, in most circumstances it is impeachable on the same grounds. Since faith-based assumptions are always at risk of being whimsical, they should be utilised sparingly. The reliance on whimsical beliefs or determinations is treated in the Qur'an as an abomination and a sin. Therefore, a cautious and wise agent will not hastily claim a faith-based determination, but will first pause and then honestly, diligently, comprehensively, reasonably and humbly scrutinise the evidence before deciding to reach an opinion. If the evidence reasonably supports his or her claim, then there is no issue, but if it does not, the agent may be forced to revise his or her beliefs or decide to become a conscientious objector. This becomes the case especially when deciding the competence of instructions that warrant a conscientious pause.
A person develops a relationship with God perhaps through prayer and supplication, by reflecting upon creation, or by reflecting upon history. These various avenues to the knowledge of God exist apart from the indicators of the text, but they work in conjunction with the text to formulate a conviction about the nature and normativities of the Divine. Although the text plays a role in forming these convictions, one cannot exclude the possibility that the conviction which has been formulated might come into friction with certain determinations of the text. A person can read a text that seems to go against everything that he or she believes about God and will feel a sense of incredulous disbelief, and might even exclaim, “This cannot be from God, the God that I know!”
What does one do in such a case? The appropriate response is to exercise what I call a conscientious pause. Having experienced this fundamental conflict between a conscientious conviction and a textual determination, a responsible and reflective person ought to pause. The point of the pause is not to simply dismiss the text or the determination, but to reflect and investigate further. It is akin to flagging an issue for further study and suspending judgment until such study is complete. After due reflection, a person might conclude that the conflict is more apparent than real, or that this determination does not do justice to the text, or might conclude that in good conscience, he or she ought to yield and defer to the textual determination. All of these and other ways of resolving the conflict are possible. But it is also possible that an adequate resolution would not be found, and that the individual conscience and the textual determination continue to be pitted in an irresolvable conflict. I argue that as long as a person has exhausted all the possible avenues towards resolving the conflict, in the final analysis, Islamic theology requires that a person abide by the dictates of his or her conscience. A faith-based objection to the determination might be necessary. Faith-based objections are founded on one’s sense of iman (conviction and belief in and about God), and it seems to me that a& er all is said and done, it is this sense that ought to be given deference.1 But a faith-based objection that is not preceded by a diligent and exhaustive investigation runs the serious risk of being a simple exercise of capricious whimsy.
Determinations and traditions demeaning to women
I fear that Islamic jurisprudence, as an epistemology and as a methodology of inquiry, has become dominated by authoritarian discourses. If Islamic jurisprudence basically consists of rules (ahkam), then one must conclude that Islamic law is thriving in the modern age. I do not believe there is a shortage of individuals, organisations, or countries willing to enter into a mass production of ahkam, and even live by them. However, if Islamic jurisprudence is about a methodology for a reflective life that searches for the Divine, and about a process of weighing and balancing the core values of Shari'a in pursuit of a moral life, then I think one would have to concede that it has disintegrated and disappeared in the last three centuries, but particularly in the second half of the twentieth century. I think that the results can be clearly observed when one considers the impact of contemporary Islamic rules on women.
I will take as examples certain traditions (hadith) cited by the Permanent Council for Scientific Research and Legal Opinions (hereafter: CRLO), the official institution in Saudi Arabia entrusted with issuing Islamic legal opinions. This is not because I wish to discredit the CRLO or its long list of affiliated jurists, but because it is my belief that the methodology utilised by the CRLO has become very widespread in the Muslim world today. Their responsa on women both have wide impact in Muslim societies and provide powerful demonstrative case studies in the construction of authoritarian discourses.
As a means of being conscientious about our reliance and presentation of the instructions of the Principal, I argue for a relationship of proportionality between our assessment of the instructions (mostly Sunna and hadith) and their theological, legal and sociological impact. The greater the anticipated impact of a tradition, the more assured and confident should we be of its competence.
Pleasing husbands and entering heaven
One set of traditions cited by the CRLO makes a wife’s religious salvation explicitly contingent on her husband’s pleasure. For example, a tradition narrated by Abu Dawud, al-Tirmidhi, Ibn Maja, Ibn Hibban and al-Hakim claims that Umm Salama, the Prophet’s wife, reported that the Prophet said, “Any woman who dies while her husband is pleased with her enters Heaven.”2 Even if we say, like some commentators, that the tradition only applies to pious women, it is still problematic because God’s pleasure is still contingent on the husband’s pleasure, regardless of how impious the husband might be. This is a revolutionary concept with profound theological and social implications. Before it can be recognised as setting a theological foundational principle, it must be of the highest degree of authenticity, which it is not.
Other traditions relied upon for the same obedience determination include one that claims that the Prophet stated, “A woman’s prayers or good deeds will not be accepted (by God) as long as her husband is upset with her.”3 Another tradition reportedly transmitted by 'Abd Allah b. 'Umar claims that the Prophet proclaimed, “God will not look at a woman who is not grateful to her husband despite her reliance on him.”4 Yet another report claims that the Prophet said, “If a woman upsets her husband, his angelic wife in Heaven (hur al-'ayn) will say, ‘May God confound you! Do not upset him [the husband]! He is but a visitor with you who is about to leave you and join us.’”5
These traditions should invoke a conscientious pause – they trouble the conscience, contradict other portrayals of the Prophet’s character and conflict with the Qur'anic spirit. With a minimal amount of reflection, one can see a conflict between the fundamental principles set by the Qur'an and the traditions of subservience and obedience. The Qur'an talks of love, compassion, friendship and virtuous women who are obedient to God – not to husbands (33:35, 4:34). In my view, the Qur'anic conception of marriage is not based on servitude, but on compassion and cooperation; and the Qur'anic conception of virtue is not conditioned on the pleasure of another human being, but on piety and obedience to God.
Classical and modern jurists argue that if there is a conflict between the sources, one must reconcile them – not use one source to trump the other. This is a well-established principle in Islamic jurisprudence, so consequently the obedience traditions would serve to specify or particularise the broader discourses in the Qur'an and Sunna about friendship and companionship. This is the logic that the CRLO uses. According to this reasoning, Islam requires the establishment of friendship and companionship, but through obedience. However, one should ask the following methodological question: Should traditions of divergent versions, of singular (ahadi) transmissions, which do not reach the highest level of authenticity and which have suspect theological logic and profound social implications, be allowed to conflict with the Qur'an in the first place? In fact, and more importantly, should such traditions be recognised as establishing laws, let alone foundational principles, for something as essential as marriage? I propose that a rationale of proportionality must be adopted, which would necessarily require only those traditions of the highest degree of authenticity to be recognised as foundational in matters of crucial religious or social implications.
The CRLO, and those who follow their school of thought, agree with the group of scholars known as ahl al-hadith in allowing ahadi traditions to be dispositive in all fields of law as well as in matters of faith and conviction. To a large extent, this position justifies the majority of their determinations, especially on issues related to women. Furthermore, this position seems to have gained widespread currency. However, it is important to note that, other than ahl al-hadith, the vast majority of classical Muslim jurists wanted to limit the scope of ahadi traditions. Since ahadi traditions cannot lead to certain knowledge of the Prophet’s utterances, they cannot be relied upon to the same extent as mutawatir traditions (hadith reported by a large number of people and considered of certain attribution). Ahadi traditions, the majority argued, could be used to establish branches (furu') of the religion, but not the fundamentals (usul). Although the majority of jurists struggled with the distinction between fundamentals and branches, the fact remains that they did not consider ahadi traditions of sufficient probative value to establish matters that are essential to religion. Therefore, it makes perfect sense to argue for a proportional relationship between the authenticity of traditions and their effective scope. I cannot claim that the logic of proportionality is explicitly endorsed by the discourses of the classical jurists, but I believe that proportionality is the clear import of their debates on ahadi traditions. However, to limit the logic of proportionality to the dichotomy between usul and furu' is not plausible. The distinction between usul and furu' is itself problematic. More importantly, the issue is not whether a problem could be technically classified as part of usul or furu'. Rather, the issue is the existence of proportionality between our knowledge of the source of a text, and the impact of the text. The greater the potential impact of a textual source, the more one should insist on its authenticity.
By the same token, the analysis should not simply be limited to whether a tradition is mutawatir or ahadi. Especially in cases of the conscientious pause, whether a tradition is mutawatir or ahadi is only the beginning of the inquiry. The point in question is not only how many people from the first generation of Muslims transmitted a particular tradition. Rather, when a tradition has serious social, theological or political implications, the inquiry should be whether the totality of the evidence could provide us with a clear sense of the role of the Prophet in what is attributed to him. The totality of the evidence would include the authenticity and trustworthiness of the transmitters, the number of transmitters from the early generations, the number of versions of the traditions, the factual contradictions between the different versions, the substance of the tradition, the relation between the tradition and more authentic or less authentic reports from the Sunna, the Qur'anic evidence (in terms of contradictions or consistencies), the historical context of the tradition, and the practices of the Prophet and Companions in related contexts. By their very nature, mutawatir traditions will be able to withstand greater scrutiny than their ahadi counterparts. Ultimately, however, even after evaluating the totality of the evidence, one might have to take a faith-based stand in rejecting a particular position. Importantly, if this stand is taken by a special agent who has fulfilled the five contingencies, including disclosing his or her conscientious objection, one cannot describe the special agent’s behaviour as authoritarian. After all, the special agent has shown humility, self-restraint and diligence in exploring all the possibilities, and, after disclosure, the common agents are free to affirm or withdraw their trust and deference.
The fitna traditions
The issue at the core of most juristic determinations mandating the exclusion of women from public places is the issue of fitna (seduction or seductive acts). The problem of fitna overlaps in important respects with the issue of the veil (al-hijab), but conceptually it remains a separate field of inquiry. Fitna connotes the notion that certain things or acts produce the type of sexual arousal that is conducive to the commission of sin. Certain acts, such as khalwa (privacy and seclusion between a foreign man and woman) are presumed to be inherently dangerous because they produce the type of fitna that is conducive to the commission of unlawful sexual acts.
The most pronounced feature of the legal determinations that exclude women from public life is their obsessive reliance on the idea of fitna. In these determinations, women are persistently seen as a walking, breathing bundle of fitna. One can hardly find a responsum that deals with women without the insertion of some language about the seductions of womanhood. So, for instance, according to the CRLO, women may attend mosques only if it does not lead to fitna; women may listen to a man reciting the Qur'an or give a lecture, only if it does not lead to fitna; women may go to the marketplace only if it does not lead to fitna; women may not visit graveyards because of the fear of fitna; women may not do tasbih or say amen aloud in prayer because of the fear of fitna; a woman praying by herself may not raise her voice in prayer if it leads to fitna; a woman may not even greet a man if it leads to fitna; and every item and colour of clothing is analysed under the doctrine of fitna. 6 It does not seem to occur to the jurists who make these determinations that this presumed fitna that accompanies women in whatever they do or wherever they go is not an inherent quality of womanhood, but is a projection of male promiscuities. By artificially constructing womanhood into the embodiment of seductions, these jurists do not promote a norm of modesty, but, in reality, promote a norm of immodesty. Instead of turning the gaze away from the physical attributes of women, they obsessively turn the gaze of attention to women as a mere physicality. In essence, these jurists objectify women into items for male consumption, and in that is the height of immodesty.
The challenge, however, is that the jurists who make these determinations find support in a range of traditions that position women as an inexhaustible source of seduction and temptation for men. The CRLO jurists unfailingly cite these traditions in arguing for the seclusion of women and in prohibiting the mixing of the sexes in public forums (ikhtilat). There is a plethora of traditions that convey the same basic message: women are an unadulterated fitna. In some of the most common versions of this genre of traditions, we encounter the following: Abu Sa'id al-Khudri reports that the Prophet said,
This earth is lush and pretty, and God has entrusted you (in this earth) to see what you will do. When it comes to (the temptations of) this world be cautious, and as to women be cautious (as well) for the first fitna that befell the Israelites was (the fitna of) women.7
In another oft-quoted version, the Prophet reportedly said, “I have not left in my people a fitna more harmful to men than women”.8 In a report from a related genre of traditions, the Prophet reportedly said, “Women are the snares of the devil.”9 In a tradition that draws a connection between 'awra (private parts that must be covered) and fitna, it is transmitted that 'Abd Allah b. 'Umar narrated that the Prophet said: “[The whole of] a woman is a 'awra and so if she goes out, the devil makes her the source of seduction.”10 A particular genre of reports takes the message of these traditions to its logical extreme. This genre effectively declares that women ought to be either married or dead. In a version transmitted through Ibn al-Abbas, the Prophet reportedly said, “A woman has ten 'awras; when she marries, her husband covers one of her 'awras, and when she dies, the grave covers the rest.”11
Not surprisingly, these traditions lay the foundations for most of the determinations regulating a woman’s appearance and conduct, regardless of whether a particular woman has covered her private parts. Therefore, even if a woman has covered her private parts, she may still not mix with men in all public forums and some private forums. Importantly, these traditions become the vehicle for symbolisms placing women in the role of the distrusted or treacherous, and for associating them with the construct of a menace that must be restrained. Consequently, in classical commentaries on these traditions, it is not unusual to find the following language:
Since God has made men desire women, and desire looking at them, and enjoying them, women are like the devil in that they seduce men towards the commission of evil, while making evil look attractive (to men). We deduce from this that women should not go out in the midst of men except for a necessity, and that men should not look at their cloth and should stay away from women altogether.12
One serious conceptual and moral difficulty with the idea of fitna concerns the principle that no one can be called to answer for the sins of another, which is a core Shari'a value. In Qur'anic discourses, one person or set of people cannot be made to suffer because of the indiscretions, sins, or faults of others – each individual is responsible and accountable only for his or her own behaviour.13 In fact, when addressing issues of modesty, the Qur'an is quite careful to place the blame on those it labels the hypocrites, who harass or molest the innocent (33:58–60).14 The jurisprudence of fitna, however, runs the risk of violating this principle. For example, assume that the reason we are confronted with a fitna situation is because of men with an overactive libido, or who are impious or ill-mannered. Demanding that women should suffer exclusion or limitations would violate the principle that the innocent should not pay for the indiscretions of the culpable, yet most fitna determinations rely on the dubious logic that women should pay the price for the impious failures of men. Furthermore, in these determinations, as far as women are concerned, fitna emerges as the core value of Islam. " erefore, women’s education, mobility, safety and even religious liberty should be restricted in order to avoid fitna. Hence, we observe that women can be banned from driving, working, serving in the military, or appearing in public life on the pretext of averting fitna.
The first point of inquiry is to ask, do the fitna traditions make an empirical claim or a normative claim? Are these traditions saying that as an empirical matter women will always have this effect on men? If the answer is yes, then the question is, what if the empirical reality contradicts the claim of the tradition? In the science of hadith, any tradition that contravenes human experience cannot be accepted as valid. So, for instance, if a tradition says that the people of Yemen walk on three legs, since the tradition is empirically incorrect it cannot be relied upon in legal determinations. Therefore, if human experience reveals that men are the sources of as much evil as women, how do we then deal with these traditions? Arguably, the fitna traditions are not describing an empirical state of affairs, but are setting a normative principle. The normative principle is that women are dangerous – whether you can empirically verify this or not, you must accept it, believe it and act on it. This, of course, takes us full circle through the construction of reality – by prophesying that women are dangerous and treating them as dangerous, we are never able to realise any reality other than that women are dangerous.
As argued earlier, however, traditions of singular transmissions should not support determinations of faith. Because of this, it is important to ask – if these traditions cannot establish points of conviction or faith, then what claims do remain? Once we disqualify these traditions from establishing points of faith ('aqida), what remains of the tradition? What remains is the empirical claim – what remains is sociology. Since under a proportionality analysis, these traditions only qualify to make empirical claims, they become empirically verifiable. Human experience can either confirm or completely refute their credibility. If the tradition is empirically unbelievable, then it cannot be relied on and cannot be enforced either. But even assuming that we are able to empirically verify that women are the source of fitna, that is not the only consideration. The ending of seduction must be weighed against the principles of Islamic justice. Consequently, if the core of the problem is the promiscuities of men, then women should not be made to suffer for the faults of men. Furthermore, in all cases higher values, such as education or health, cannot be sacrificed in order to guard against dangers of fitna.
The hadith literature should properly be seen as the product of an authorial enterprise. It is an authorial enterprise because of the widespread participation of so many individuals from a variety of socio-historical contexts, with their own sense of values, levels of consciousness, and memories, who engage in the process of selecting, remembering and transmitting the memory of the Prophet and the Companions.
We should assess the issue of the authorial enterprise as it relates to the fitna traditions. I start the analysis with the following speculation: Is it possible that the Prophet in one or more contexts warned against sexual promiscuities and immodesty, and that this warning was remembered and reconstructed into a warning against women? This speculation is warranted because it is entirely possible that the Prophet would counsel modesty and virtue, and it is also plausible that the patriarchal society receiving the Prophet’s counsel redirected this counsel into a statement against women.
One of the most problematic aspects of the fitna traditions and their determinations is that they make a good part of the Islamic historical experience in Medina appear a corruption. It is difficult to reconcile the traditions of fitna and exclusion with the numerous reports about the active participation of women in public life during the life of the Prophet and after his death as well. In fact, the reports that document incidents of seclusion of women are few in comparison with the reports documenting the opposite. The reports of public participation are too numerous to report here.15 In none of these reports about the historical practice is there a hint of obsession about fitna. Conversely, the overwhelming majority of the traditions of the fitna genre do not purport to describe a historical practice. Rather, they present declarations, aspirations, claims, or normative prescriptions. If these traditions are to be believed, then there was an enormous disparity between the normative declarations of the Prophet and the actual historical practice in Medina. Seen differently, either the reports that describe the historical practice are exaggerated or the traditions of fitna are exaggerated. It is implausible that the Companions and the Prophet, himself, consistently chose to ignore the Prophet’s normative injunctions about fitna in actual practice.
The typical CRLO response to this type of argument is to claim that all such incidents took place before the imposition of the hijab. Once the hijab was imposed, all such incidents became irrelevant. However, considering that the hijab was introduced in the very last years before the death of the Prophet, we end up with the peculiar result that most of the Islamic historical experience, as far as gender relations are concerned, becomes an utter nullity. In addition, most Qur'anic commentaries explicitly state that the hijab was imposed only on the Prophet’s wives. In fact, the verse explicitly addresses itself to the wives of the Prophet and comments that the wives of the Prophet are unlike other women in the Muslim community (33:32, 33:53).16 Furthermore, many of the reports about the historical practice describe numerous incidents of public participation by women in the last years of the Prophet’s life and after his death.
Moreover, even assuming that the law of 'awra was revealed in the last year or two of the Prophet’s life, the issue of 'awra is separate from the issue of fitna. Although the issue of 'awra needs a separate treatment, it is significant that according to the authorial enterprise that conveyed the laws of 'awra, the 'awra of female slaves are different from the 'awra of free women. A female slave does not require the covering of the hair, the arms, or part of the legs. If the discourse of 'awra was related to the discourse of the fitna, there would be no grounds for distinguishing the two. In my view, the mere fact that the authorial enterprise distinguished between the 'awra of free and non-free women is sufficient in itself to warrant a complete re-examination of the 'awra laws.
There are six main elements that, I believe, warrant careful examination in trying to analyse the laws of 'awra, and that invite us to re-examine the relationship between 'awra and fitna. First, early jurists disagreed on the meaning of zina (adornments) that women are commanded to cover. Secondly, the jurists frequently repeated that the veiling verse was revealed in response to a very specific situation. Corrupt young men would harass and, at times, assault women at night as these women headed to the wild to relieve themselves. Apparently, when confronted, these men would claim that they did not realise that these women were Muslim but thought them non-Muslim slave girls, and, therefore, not under the protection of the Muslim community. Thirdly, as noted above, Muslims jurists consistently argued that the laws mandating the covering of the full body did not apply to slave girls. Fourthly, the jurists o& en argued that what could be lawfully exposed in a woman’s body was what would ordinarily appear according to custom ('ada), nature (jibilla), and necessity (darura). Relying on this, they argued that slave girls do not have to cover their hair, face, or arms because they live an active economic life that requires mobility, and because by nature and custom slave girls do not ordinarily cover these parts of their bodies. Arguably, women in the modern age too live an economically active life that requires mobility and, arguably, custom varies with time and place. Fifthly, several early authorities state that the Qur'anic verse primarily sought to have women cover their chests up to the beginning of the cleavage area. Sixthly, there is a sharp disjunction between the veiling verses and the notion of seduction. A man could be seduced by a slave girl, and a woman could be seduced by a good-looking man, yet neither slave girls nor men are required to cover their hair or faces.17
In order to evaluate the authorial enterprise behind the fitna traditions, we need to examine the totality of the evidence including the rhetorical dynamics of these traditions along with their functions and potentialities. For instance, in one of the traditions that the CRLO jurists frequently cite in support of their argument for the exclusion of women, Ibn 'Umar narrates that the Prophet said: “Do not forbid your women from going to the mosque, but praying at home is better for them.” A version of this report purportedly transmitted from the Prophet by 'Abd Allah b. 'Umar, becomes more extreme. It states: “ The prayer of a woman in her room is better than her prayer house and her prayer in a dark closet is better than her prayer in her room.”18 These reports coexist with other traditions that assert that the mosque of the Prophet was full of rows of women lining up for prayers. At times, men arriving late for prayer would pray behind women and their prayers were considered valid.19 Furthermore, there are reports that some women would stay for long periods and even sleep in the mosque.20 Of course, reports of widespread attendance of prayers by women in mosques create a rather untenable situation. One would have to conclude that all these women ignored the Prophet’s advice to pray in dark closets. In response to this tension, we find reports that try to rehabilitate the situation, somewhat. For instance, a report attributed to 'A'isha asserts that 'A'isha said, “If the Prophet had seen what women are doing in mosques today, he would have prohibited them [from attending the mosque] as the women of Israel were prohibited [presumably, by Jewish law].” The importance of this tradition is the fact that it is attributed to 'A'isha, who led an active political life and continued to pray and teach in the mosque in Medina after the Prophet’s death.
Such various traditions allow us to observe a vibrant historical dynamic in which a social issue is being negotiated through the subtleties of language. Observing this social dynamic allows us to assess the authorial enterprise behind the fitna traditions in a more reasonable, comprehensive, diligent and honest assessment.
Part of the historical negotiation process was the co-option and redirecting of reports that described a historical practice into reports of normative warnings against the fitna of women. In several traditions, 'A'isha reports that women of the time of the Prophet would attend morning prayers wearing their cloaks. The women would attend and leave without being recognised because of the darkness. 'A'isha reportedly says this in the context of arguing that morning congregational prayers should be performed early, at dawn, when it is still dark. Her point is technical and related to the proper timing of prayer.21 Remarkably, however, this tradition becomes co-opted by some early and modern authorities into a statement against fitna. According to these sources, and according to the CRLO, the lesson of these traditions is that women should not be seen going to and coming from the mosque, or that if they go to the mosque, they should thoroughly wrap themselves in clothing so that no one will recognise them.
The issue is not simply who said what, or who said what about whom, the relevant issue is to investigate thoroughly, comprehensively and diligently the totality of contextual evidence that might enlighten us about the motives, dynamics, values, memory and the construction of reality. For example, noticing that many of the reports that demean, and sometimes honour, women are consistently attributed to Abu Hurayra, 'Abd Allah b. 'Umar, and Abu Sa'id al-Khudri, a diligent agent must ask, why? Is it possible that these traditions were the legal opinions of these Companions, and that these individual legal opinions were misremembered by later generations, and attributed to the Prophet? Is it possible that people tended to attribute opinions that expressed a conservative view about women to these particular Companions who were collectively remembered as conservative men? Someone like Abu Sa'id al-Khudri was an honoured and revered Companion of the Prophet, and we find that 1,170 traditions were attributed to him. Out of these, al-Bukhari accepted only sixteen traditions as authentic, and Muslim accepted fifty-two.22 For someone to come in the contemporary age and argue that perhaps al-Bukhari and Muslim could have included some or excluded others of the traditions attributed to al-Khudri, is not heresy – it is simply a diligent discharging of the burdens of special agency.
In my view, these traditions are not only demeaning to women, but are also demeaning to men. The often graphic and repulsive nature of these reports is evidence of the fact that they were produced in the context of highly contentious social dynamics. Their wording and style seem intended to shock, challenge and frustrate a particular social strata or set of interests. Quite aside from the issue of the technical, chain-of-transmission-focused authenticity of these traditions, they are indicative of a dynamic and highly negotiative historical process. If one adopts the faith-based conviction that the Prophet was not sent by God to affirm and legitimate conservative and oppressive power structures, traditions that affirm the hegemony of patriarchy would have to pass the strictest level of scrutiny. However, applying this level of scrutiny to these traditions would reveal that there were too many patriarchal vested interests circulating, advocating and embellishing these types of reports. Consequently, one would have to conclude that the voice of the Prophet in the authorial enterprise behind these traditions has been hopelessly drowned out.
Serving justice
What is problematic about such determinations as the responsa of the CRLO on women is not only that they are often blatantly result-oriented, nor that they are remarkably careless and uncritical in handling the evidence, nor that they are not clear or forthright about their sociological and factual assumptions, but also, and even more importantly, that they fail to integrate or give due weight to moral assessments. I realise that in the contemporary age it is not fashionable to speak about morality when discussing Islamic law, except to adopt a vulgar form of legal positivism which declares that whatever the rule of law, therein lies the moral imperative. It is also not fashionable to speak of intuitive morality or the application of reason to God’s law. Very few contemporary Muslim authors attempt to rekindle and develop the classical discourses on the role of 'aql (intellect), fitra (intuition), or husn and qubh (the moral and the immoral) in the process of developing God’s law.23 Even rudimentary notions of moral awareness, such as being aware of the value of fairness, dignity, and truthfulness, are hardly given any weight by bodies such as the CRLO, especially in determinations that deal with women. Since no legal system functions in a moral vacuum, serious thought needs to be given to the visions of morality that might guide Islamic law in the contemporary age.
I am painfully aware that the reactions of some fellow Muslims to these ideas are going to be somewhat unpleasant. However, I feel that Muslims in the present age are going through their intellectual dark ages, and this creates an added burden on Muslim intellectuals. In the same way that Muslims of previous generations reached the awareness that slavery is immoral and unlawful, as a matter of conscience, I confess that I find the virtual slavery imposed on women by the CRLO and like-minded special agents to be painfully offensive and unworthy of Shari'a. To claim that a woman visiting her husband’s grave, a woman raising her voice in prayer, a woman driving a car, or a woman traveling unaccompanied by a male is bound to create intolerable fitna, strikes me as morally problematic. If men are so morally weak, why should women suffer? Besides, doesn’t this assumed moral weakness run contrary to the assumption that men should be the heads of the family and the leaders of society because they are of a stronger and more enduring constitution? Doesn’t this also contradict the assumption that men are more rational and less emotional than women? Furthermore, arguing that women should pray in the most inaccessible area in a home, or should walk next to a wall to the point of rubbing against it, or should physically submit whenever it fits the husband’s whimsy, or that women’s salvation is contingent on the pleasure of their husbands, or that women will form most of hell’s population, or that a woman is a walking, talking bundle of seduction, again, strikes me as morally offensive.
Because of the drastic normative consequences of traditions such as this, they require a conscientious pause. If by the standards of age and place, or the standards of human moral development, traditions lead to wakhdh al-damir (the unsettling or disturbing of the conscience), the least a Muslim can do is to pause to reflect about the place and implications of these traditions. If a Muslim’s conscience is disturbed, the least that would be theologically expected from thinking beings who carry the burden of free will, accountability and God’s trust, is to take a reflective pause, and ask: To what extent did the Prophet really play a role in the authorial enterprise that produced this tradition? Can I, consistently with my faith and understanding of God and God’s message, believe that God’s Prophet is primarily responsible for this tradition?
If my analysis is correct, the evidence, itself, does not warrant these misogynistic determinations. The question remains: what solicits or generates these types of determinations? If one apologetically says that culture is the culprit – that these determinations have nothing to do with the religion, but are the product of highly patriarchal cultural settings – I would politely have to say, I agree. However, I agree in a different way, and with a different claim. It would be dishonest to claim that these determinations find no support in Islamic sources, for they clearly find support in a variety of traditions and precedents. However, one can justifiably argue that these determinations are inconsistent with Qur'anic morality, and that other Islamic sources challenge these determinations, at least as much as they lend them support.
In my view, herein is the true Divine test and challenge. One of the most fascinating, and understudied, aspects of the Qur'anic text is its discourse on the idea of justice.24 The Qur'an connects the idea of bearing witness upon humanity with the idea of balance. For instance, the Qur'an states in part: “Thus, We have made you Muslims a nation that must be justly balanced, so that you may bear witness over humanity” (2:143; cf. 22:78). Elsewhere, the Qur'an interchanges the obligations towards justice with the obligations towards God. For instance, it states, “O you who believe, stand firmly for God as witnesses for justice, and let not the hatred of others to you make you swerve to wrong and depart from justice” (5:8), and then, “O you who believe, stand firmly for justice as witnesses for God, even as against yourselves, or your parents, or your kin, and whether it be against rich or poor” (4:135).25 It seems to me that standing firmly for God or standing firmly for justice are one and the same, or, at least, coexist in the same moral plane. Furthermore, without being themselves morally balanced, Muslims cannot discharge their obligation to bear witness upon humanity, let alone to bear witness upon themselves. It strikes me as unjust to bear witness upon others according to a balance that is neither accessible, nor understandable, nor accountable to those others. If Islam is a universal message, its language of morality and justice ought to make sense beyond the limited confines of a particular juristic culture in a particular cultural setting. I am not advocating a universal law, and I am not advocating the abolition of all cultural participation, but, at a minimum, it seems that serving God means serving justice, and serving justice necessarily means engaging in the search for the just, moral and humane. The test and the challenge to our sense of balance and equanimity is, regardless of the socio-historical circumstances, or textual and doctrinal indicators, to try always to pose the questions: Is it fair? Is it just? – and, at the end of every conscientious and diligent process, to close with, “And, God knows best”.
NOTES
1 In this context, I take note of the tradition attributed to the Prophet that states: “Defer to your heart even if others advise you, advise you and advise you.”
2 On the authenticity of this report, see Ibn Qayyim al-Jawziyya ('Abd al-Rahman Muhammad 'Uthman, ed.), 'Awn al-Ma'bud Sharh Sunan Abi Dawud, 2nd ed. (Medina: al-Maktaba al-Salafiyya, 1968/1969), vol. 6, pp. 177–8.
3 Ibn Hajar al-'Asqalani, Fath al-Bari: Sharh Sahih al-Bukhari (Beirut: Dar al-Ma'rifa, n.d.), vol. 9, p. 294.
4 Ibn Qayyim al-Jawziyya, op. cit., vol. 6, p. 179.
5 Al-Mubarakfuri, Tuhfat al-Ahwadhi bi Sharh Jami' al-Tirmidhi (Beirut: Dar al-Kutub al-'Ilmiyya, n.d.), vol. 4, pp. 283–4.
6 Ibn Fawzan ('Adil b. 'Ali b. Ahmad al-Faridan, ed.) Al-Muntaqa min Fatawa Fadilat al-Shaykh Salih b. Fawzan b. 'Abd Allah Ibn Fawzan, 2nd ed. (Medina: Maktabat al-Ghurban al-Athariyya, 1997), vol. 3, pp. 14–15, 40, 56, 294, 300, 307, 308, 309–10, vol. 5, pp. 123–35; al-'Uthaymin (Ashraf b. 'Abd al-Maqsud 'Abd al-Rahim, ed.), Fatawa al-Shaykh Muhammad al-Sali) al-'Uthaymin (Riyad: Dar 'Alam al-Kutub, 1991), vol. 1, pp 352–3, 362–3, vol. 2, pp. 825–8; Ibn Baz et al. (Qasim al-Shama'i al-Rifa'i, ed.), Fatawa Islamiyya (Beirut: Dar al-Qalam, 1988), vol. 3, pp. 182, 183–4, 189, 204–5; Ibn Baz, (Muhammad b. Sa'd al-Shawi', ed.), Majmu' Fatawa wa Maqalat Mutanawwi'a (Cairo: Maktabat Ibn Taymiyya, 1990), vol. 2, pp. 84–5, 173, 189–91, vol. 4, pp. 242–4, 254–8; Ahmad b. 'Abd al-Razzaq al-Dawish (ed.), Fatawa al-Lajnah al-Da"ima li al-Buhuh al-'Ilmiyya wa al-Ifta' (Riyad: Dar 'Alam al-Kutub, 1991), vol. 4, pp. 126–7.
7 Abu Zakariyya Muhyi al-Din b. Sharaf al-Nawawi, Sharh Sahih Muslim al-Musamma al-Minhaj Sharh Sahih Muslim b. Hajjaj (Beirut: Dar al-Ma'rifa, 1996), pp. 17–18:57–8; al-Mubarakfuri, op. cit., vol. 6, p. 356–9; Isma'il b. Muhammad al-'Ajluni al-Jirahi, Kashf al-Khafa" wa Muzil al-Ilbas 'an ma Ishtahar min al-Ahadith 'ala Alsinat al-Nas, 2nd ed. (Beirut: Dar Ihya' al-Turath al-'Arabi, 1968), p. 39.
8 Ibn Hajar al-'Asqalani, op. cit., vol. 9, p. 137; al-Mubarakfuri, op. cit., vol. 8, p. 53; al-Nawawi, op. cit., 17–18:57; Ibn Jar Allah al-Yamani (Muhammad 'Abd al-Qadir Ahmad 'Ata, ed.), al-Nawafih al-'Atira fi al-Ahadith al-Mushtahira (Beirut: Mu'assasat al-Kutub al-Thaqafiyya, 1992), p. 306; al-Jirahi, op. cit., p. 183; al-Sakhawi (Muhammad 'Uthman al-Khasht, ed.), al-Maqasid al-Hasana fi Bayan Kathir min al-Ahadith al-Mushtahira 'ala al-Alsina, 2nd ed. (Beirut: Dar al-Kitab al-'Arabi, 1994), p. 428; al-Shaybani, Kitab Taymiz al-Tayyib min al-Khabith fi ma yadur 'ala Alsinat al-Nas min al-Hadith (Beirut: Dar al-Kitab al-'Arabi, n.d.), p. 144.
9 Al-Jirahi, op. cit., pp. 315–6; al-Shaybani, op. cit., p. 183.
10 Al-Mubarakfuri, op. cit., vol. 4, p. 283.
11 This version is considered to be of weak transmission. Another version asserts that women have two sources of effective protection, a husband and the grave. See Abu Hamid al-Ghazali, Ihya" 'Ulum al-Din (Beirut: Dar al-Ma'rifa, n.d.), vol. 2, p. 58. At the symbolic level, this tradition is consistent with reports that assert that a woman, in total, is a 'awra. See Abu al-Sa'adat al-Mubarak b. Muhammad Ibn al-Athir al-Jazri (Abu 'Abd al-Rahman b. 'Uwida, ed.), al-Nihaya fi Gharib al-Hadith wa al-Athar (Beirut: Dar al-Kutub al-'Ilmiyya, 1997), vol. 3, p. 288.
12 Al-Nawawi, op. cit., pp. 9–10, 181.
13 Qur'an 6:164, 17:15, 35:18, 39:7, 53:38, 24:11, 2:286, 4:32, 33:58.
14 Reportedly, these verses were revealed in response to several incidents in which the hypocrites of Medina harassed and molested Muslim women. Fakhr al-Din Muhammad b. 'Umar b. al-Husayn al-Razi, al-Tafsir al-Kabir li al-Imam Fakhr al-Din al-Razi, 3rd ed. (Beirut: Dar Ihya' al-Turath al-'Arabi, 1999), vol. 9, pp. 183–4; Abu Ja'far Muhammad b. Jarir al-Tabari (Bashshar 'Awwad Ma'ruf and 'Isam Faris al-Harastani, eds.), Tafsir al-Tabari min Kitabihi Jami' al-Bayan 'an Ta'wil Ayat al-Qur'an (Beirut: Mu'assasat al-Risala, 1994), vol. 6, pp. 199–200; Abu 'Abd Allah Muhammad b. Ahmad al-Ansari al-Qurtubi, al-Jami' li Ahkam al-Qur'an (Beirut: Dar al-Kutub al-'Ilmiyya, 1993), vol. 14, pp. 157–8; 'Imad al-Din Abu al-Fida' b. 'Umar Ibn Kathir (Muhammad 'Ali al-Sabuni, ed.), Mukhtasar Tafsir ibn Kathir, 7th ed. (Beirut: al-Qur'an al-Karim, 1981), vol. 3, pp. 114–15.
15 See for such reports 'Abd al-Halim Abu Shuqqa, Tahrir al-Mar'a fi 'Asr al-Risala (Kuwait: Dar al-Qalam, 1990), vol. 2, pp. 174–348.
16 Ibn Kathir, op. cit., vol. 3, pp. 108–9; al-Qurtubi, op. cit., vol. 14, pp. 143–8; al-Tabari, op. cit., vol. 6, pp. 195–6; al-Razi, op. cit., vol. 9, pp. 178–80.
17 Abu Ja'far Muhammad b. Jarir al-Tabari, Jami' al-Bayan fi Tafsir al-Qur'an (Beirut: Dar al-Ma'rifa, 1989), vol. 18, pp. 93–5, vol. 22, pp. 33–4; Abu al-Barakat 'Abd Allah b. Ahmad b. Mahmud Hafiz al-Din al-Nasafi , Tafsir al-Nasafi (Cairo: Dar Ihya' al-Kutub al-'Arabiyya, n. d.), vol. 3, pp. 140, 313; Abu Bakr Ahmad b. 'Ali al-Razi al-Jassas, Ahkam al-Qur'an (Beirut: Dar al-Kitab al-'Arabi, 1986), vol. 3, pp 409–10, 486; 'Imad al-Din b. Muhammad al-Kiyya al-Harrasi (Musa Muhammad 'Ali and 'Izzat 'Ali 'Id 'atiyya, eds.), Ahkam al-Qur'an, (Cairo: Dar al-Kutub al-Haditha, 1974), vol. 4, pp. 288, 354; Abu Bakr Muhammad b. 'Abd Allah Ibn al-'Arabi ('Ali Muhammad al-Bajawi, ed.), Ahkam al-Qur'an (Beirut: Dar al-Ma'rifa, n.d.), vol. 3, pp. 1368–78, 1586– 87; al-Qurtubi, op. cit., vol. 12, pp. 152–3, 157, vol. 14, pp. 156–7; Ibn Kathir, op. cit., vol. 2, p. 600, vol. 3, pp. 114–15; Muhammad b. Yusuf Abu Hayyan al-Andalusi ('Adil 'Abd al-Mawjud and 'Ali Muhammad Mu'awwad, eds.), Tafsir al-Bahr al-Muhit (Beirut: Dar al-Kutub al-'Ilmiyya, 1993), vol. 6, p. 412, vol. 7, pp. 240–1; Abu al-Qasim Jar Allah Mahmud b. 'Umar al-Zamakhshari, al-Kashshaf 'an Haqa'iq al-Tanzil wa 'Uyun al-Aqawil fi Wujuh al-Ta'wil (Beirut: Dar al-Fikr, n.d.), vol. 3, pp. 60–2, 274; Abu al-Faraj 'Abd al-Rahman b. 'Ali b. Muhammad Ibn al-Jawzi (Ahmad Shams al-Din, ed.), Zad al-Masir fi 'Ilm al-Tafsir (Beirut: Dar al-Kutub al-'Ilmiyya, 1994), vol. 5, pp. 377–8; vol. 6, p. 224; Abu al-Hasan 'Ali b. Muhammad b. Habib al-Mawardi (al-Sayyid b. 'Abd al-Maqsud b. 'Abd al-Rahim, ed.), al-Nukat wa al-'Uyun (Beirut: Dar al-Kutub al-'Ilmiyya, 1992), vol. 4, pp. 90–3, 424–5; Muhammad al-Amin b. Muhammad al-Mukhtar al-Shinqiti, Adwa' al-Bayan fi Idah al-Qur'an bi al-Qur'an (Beirut: 'Alam al-Kutub, n.d.), vol. 6, pp. 192–203, 586–600; Taqi al-Din Ahmad b. 'Abd al-Halim Ibn Taymiyya ('Abd al-Rahman 'Umira, ed.), al-Tafsir al-Kabir (Beirut: Dar al-Kutub al-'Ilmiyya, n.d.), vol. 6, p. 23; al-Razi, al-Tafsir al-Kabir, vol. 23, pp. 176–9, vol. 25, pp. 198–9; Abu Muhammad 'Abd al-Haqq b. Ghalib al-Andalusi Ibn 'Atiyya ('Abd al-Salam 'Abd al-Shafi , ed.), al-Muharrar al-Wajiz fi Tafsir al-Kitab al-'Aziz (Beirut: Dar al-Kutub al-'Ilmiyya, 1993), vol. 4, p. 178, 399; Jalal al-Din 'Abd al-Rahman b. Abi Bakr al-Suyuti, al-Durr al-Manthur fi al-Tafsir bi al-Ma'thur (Cairo: Matba'at al-Anwar al-Muhammadiyya, n.d.), vol. 5, pp. 45–6, 239–41; Isma'il Haqqi al-Burusi (Muhammad 'Ali al-Sabuni, ed.), Tanwir al-Adhhan min Tafsir Ruh al-Bayan (Damascus: Dar al-Qalam, 1989), vol. 3, pp. 57–9, 254–5; Abu Hafs 'Umar b. 'Ali bin 'Adil al-Dimashqi, 'Adil Ahmad 'Abd al-Mawjud and 'Ali Muhammad Mu'awwad (eds.), al-Lubab fi 'Ulum al-Kitab (Beirut: Dar al-Kutub al-'Ilmiyya, 1998), vol. 14, pp. 355–8, vol. 15, pp. 588–90; Abu al-Fadl Shihab al-Din al-Sayyid Mahmud al-Alusi, Ruh al-Ma'ani fi Tafsir al-Qur'an al-'Azim wa al-Sab' al-Mathani (Beirut: Dar Ihya' al-Turath al-'Arabi, 1985), vol. 18, pp. 140–2, vol. 22, p. 89; Ahmad b. Muhammad al-Sawi, Hashiyat al-'Allama al-Sawi 'ala Tafsir al-Jalalayn (Beirut: Dar Ihya" al-Turath al-'Arabi, n.d. ), vol. 3, pp. 136–7, 288–9.
18 Ibn Qayyim al-Jawziyya, op. cit., vol. 2, p. 277; Ibn Hajar al-'Asqalani, op. cit., vol. 2, p. 350; 'Ala' al-Din 'Ali al-Muttaqi b. Husam al-Din al-Burhan Fawzi al-Hindi, Kanz al-'Ummal fi Sunan al-Aqwal wa al-Af'al (Beirut: Mu'assasat al-Risala, 1985), vol. 16, pp. 413–14.
19 Sahnun b. Sa'id al-Tanukhi, Al-Mudawwana al-Kubra (Beirut: Dar al-Kutub al-'Ilmiyya, 1994), vol. 1, p. 195; Abu Muhammad 'Abd Allah b. Abi Zayd al-Qayrawani ('Abd al-Fattah al-Hilw, ed.), al-Nawadir wa al-Ziyadat (Beirut: Dar al-Gharb al-Islami, 1999), vol. 1, p. 296; Abu Muhammad 'Abd Allah b. Ahmad b. Muhammad Ibn Qudama, al-Mughni (Beirut: Dar Ihya" al-Turath al-'Arabi, n.d.), vol. 2, p. 44; Abu Shuqqa, op. cit., vol. 2, pp. 195–202.
20 Ibn Hajar al-'Asqalani, op. cit., vol. 2, pp. 101–2; Abu Shuqqa, op. cit., vol. 2, pp. 181–94.
21 Al-Mubarakfuri, op. cit., vol. 1, p. 402; al-Nawawi, op. cit., pp. 5–6, 145–6; Ibn Hajar al-'Asqalani, op. cit., vol. 2, pp. 54, 55, 351.
22 Shams al-Din Muhammad b. Ahmad b. 'Uthman al-Dhahabi, Siyar A'lam al-Nubala', 4th ed. (Beirut: Mu'assasat al-Risala, 1986), vol. 3, p. 172.
23 For a review of such authors, see Wael Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh (Cambridge: Cambridge University Press, 1997), pp. 207–54. Fazlur Rahman arguably relies on a similar process in his book on the Qur'an. However, he does not address law, and in fact considers the positive legal tradition and its institutions partly to blame for moral stagnancy. Fazlur Rahman, Major Themes of the Qur'an, 2nd ed. (Minneapolis: Bibliotheca Islamica, 1994), pp. 47–8. See also Abdolkarim Soroush, Mahmoud Sadri and Ahmad Sadri (trans.), Reason, Freedom, and Democracy in Islam: Essential Writings of Abdolkarim Soroush (New York: Oxford University Press, 2000).
24 Rahman, op. cit., pp. 42–3, 46–51; Toshihiko Izutsu, Ethico-Religious Concepts in the Qur'an (Montreal: McGill University Press, 1966), pp. 209–11.
25 Emphases added.