Some Critical Remarks on Mohammad Fadel’s article “Two Women, One Man: Knowledge, Power, and Gender in Medieval Sunni Legal Thought.”

I would like to make a few remarks concerning Dr. Mohammad Fadel’s article “Two Women, One Man: Knowledge, Power, and Gender in Medieval Sunni Legal Thought.” The article addresses the testimonial value of women in contrast to men in Sunni legal discourse.

Having read a number of his articles, it has become clear to me that there is a flawed methodological pattern in Fadel’s approach to fiqh.

The primary one appears to be his unwarranted conflation between the ratio legis (علة), or legislative intent or purpose, and wisdom (حكمة) of a ruling (an example of such a conflation committed by several modernists can be found here.

Even if one assumes that the ratio legis and wisdom are one and the same, it is not always obvious whether a fiqhi ruling is interlinked with a single ratio legis or multiple ones. This could lead to problems where people attribute a ratio legis to a ruling that is only valid in partially describing legislative intent, thereby giving the false impression that in the absence of this partial ratio legis, the ruling no longer applies. For example, it is wrong to say that 𝐭𝐡𝐞 𝐨𝐧𝐥𝐲 ratio legis for the prohibition of consuming swine is because pigs are dirty and eat dirty things. Why? Because that would then entail that if pig farming were to change in the future and pigs were raised in cleaner environments and were to be exclusively fed clean food, that would make their meat consumption halal. This is problematic, especially since the ratio legis is not textually relayed to us but is rather deduced as 𝒐𝒏𝒆 𝒐𝒇 𝒕𝒉𝒆 𝒓𝒆𝒂𝒔𝒐𝒏𝒔 for the prohibition of eating pork.

Such deductions are at other times contentious and prone to error and cannot be ascertained with confidence.

An important principle agreed upon in meaning by the scholars is that it is baseless to stipulate that the only ratio legis for a divinely ordained legislation is malleable to change to the point that it nullifies scripture (كل تعليل يتضمن إبطال النص باطل).

And this is the mistake that Fadel has committed, yet again (as he did in his article on women’s wilaayah as can be seen here, whereby he has neglected to recognize that the actual ratio legis for why men’s testimony is 𝐬𝐨𝐦𝐞𝐭𝐢𝐦𝐞𝐬 valued more than women’s is, 𝑢𝑙𝑡𝑖𝑚𝑎𝑡𝑒𝑙𝑦, the 𝐚𝐜𝐭𝐮𝐚𝐥 𝐠𝐞𝐧𝐝𝐞𝐫 𝐢𝐭𝐬𝐞𝐥𝐟. God’s specific method of communicating this law in the Qur’an, in addition to the hadeeth of the Prophet (peace be upon him) linking deficiency of aql to women’s testimony (a critical hadeeth that Fadel strangely did not engage with sufficiently in his piece), entails that this is a matter from the fixed specific dictates of the Shari’ah (المقدّرات الشرعية) where there is no ijtihad permitted in changing the foundation of this ruling. Fixed specific dictates feature prominently in acts of worship (e.g., how to pray, Zakah being 2.5%, etc.), but also include things like inheritance laws, hudud, etc. Since Fadel claims to incline toward the Maliki Madhab, he could read up on the Maliki madhab’s stance on such fixed specific laws in a recently published article by Dr. Ayman Mustafa (Ph.D. in fiqh from The University of Jordan), entitled: المقدرات الشرعية عند المالكية بين الظنية والقطعية.

Thus, when it comes to such laws, what is prone to change with time is the wisdom, not the ruling itself, when the ratio legis remains applicable and present. We could say that a 𝐬𝐩𝐞𝐜𝐢𝐟𝐢𝐜 𝐰𝐢𝐬𝐝𝐨𝐦 of a ruling deduced via Ijtihad served its purpose a long time ago or is limitedly serving its purpose in specific geographical locations or circumstances, but that does not change the fact that there could be other wisdoms of these rulings unknown to us.

Some, like Fadel, might not find it intellectually satisfying to concede that we at many times do not know the wisdom 𝒐𝒓 𝒂𝒍𝒍 the wisdoms behind divine legislations. It does not mean they do not exist; it is just that we may not know them. As scholars have said, that could be intentional so that a higher wisdom is actualized, namely the spiritual maslahah of submitting to Allah and His commands. This makes full sense, and there is nothing irrational about this. I would be curious to hear an actual cogent philosophical critique of this reasoning if there is one.

In light of this, it is wrong for Fadel to conclude in his article that “one can no longer simply assume that modernist interpretations of Qur'an 2:282 represent a radical break from Islamic law.” Modernist interpretations are guided by hermeneutical methods and underlying ideological premises anathema to mainstream Sunnism. Moreover, I find it disingenuous for Fadel to advise, as he repeatedly does in his works, modernists and feminists to engage in “exploiting problems and tensions that have long been recognized to exist within Islamic law” to infiltrate mainstream Islamic settings under the misleading guise of a shared ideological and hermeneutical framework.

As for the article itself, I found it somewhat ironic that Fadel did not realize the self-contradictory lens through which he views the classical scholars. On the one hand, Fadel acknowledges that classical scholars accepted women’s testimony in “normative” spheres like narrating ahadeeth, in addition to accepting their legal opinions. Furthermore, he recognizes that the scholars were nuanced in their levels of acceptance of women’s testimony. Yet, Fadel finds this “most surprising.” Why? Because this reality does not align with Fadel’s theory that Qur’anic exegetes (who were also jurists) were guilty of “allowing the misogynistic assumptions of the reader to dominate the text” and that the jurist’s approach to the topic “had as much to do with male chauvinism.”

Reading Fadel’s article itself, it becomes evident that the scholars were exerting effort to deduce the reasons behind why scripture discriminated against women’s testimony in certain instances. What prompted them to delve deeply into their carefully nuanced analysis of probative values of testimonies in different spheres was their submission (𝐧𝐨𝐭 𝐦𝐢𝐬𝐨𝐠𝐲𝐧𝐲) to fixed scripturally-based rulings, ones that accord to the obvious and self-evident meaning of the words of Allah and the Prophet. They would consequently work off of these scriptural texts to determine the 𝐜𝐨𝐦𝐩𝐫𝐞𝐡𝐞𝐧𝐬𝐢𝐯𝐞 ratio legis (i.e., reasons beyond the gender) to serve as a basis for their analogical reasoning when issuing rulings in different spheres (not mentioned by scripture) where testimony takes place. Otherwise, if misogyny was their primary driving force, they could have easily been more stringent and restrictive in scope in the rulings they issued. They could have added layers of conditions for accepting ahadith transmitted by women (e.g., must also be attested by men, or must not be contradicted by a hadith transmitted by men, etc.), for instance, but they did not.

One could read any proper study about “the testimony of women in jurisprudence” and see the textual evidences that prompted the jurists to adopt the nuanced stances that they did when it comes to women’s testimonies in different domains. (Some examples of studies are: https://mksq.journals.ekb.eg/article_7752...,https://www.asjp.cerist.dz/en/downArticle/396/6/2/61079, and https://units.imamu.edu.sa/.../sofm/Documents/khdair1.pdf)

In fact, there is no interaction with the bulk of these evidences in Fadel’s paper. He does not engage with the Qur’anic and hadith evidence. He ignores the statements of the Sahabah and Salaf that served as a precedent for the scholars. Fadel only selectively chose to hone in on deduced attempts to rationalize the wisdoms of the rulings and then tried to poke holes in them. But these ijtihadi rational attempts for the purpose of qiyas are the least evidentiary in weight in the eyes of the scholars whose ultimate concern is the scriptural proofs.

Fadel states:

“One would expect that any discussion of women's testimony in medieval Islamic law would be centered on Qur’an 2:282. In fact, neither al-Qarafi nor al-Tarabulusi refers to it.”

This demonstrates Fadel’s lack of familiarity with the variety of textual evidences that are employed in this subject (e.g., scholars would appeal to verses like 24:4 to negate women’s testimony in capital punishment cases like zina). It is not only about 2:282. But again, is Fadel’s comment even true? A quick glimpse through Al-Qarafi’s works like adh-Dhakheera, Nafaa’is al-Usul, Al-Furuq, etc. shows that he does reference 2:282. And does Fadel seriously want to suggest that Al-Tarabulusi was not driven by scripture in his views like his remaining Hanafi peers?

Also, there is a concern with Fadel’s presentation of the stance of Ibn Taymiyyah and Ibnul Qayyim. He makes it appear that they accept women's testimony unqualifiedly in all situations as long as their testimony is credible. His citation of Ibnul Qayyim was partial and stopped short of an important qualifier where Ibnul Qayyim states, “and for that reason, her testimony by herself is accepted 𝐢𝐧 𝐜𝐞𝐫𝐭𝐚𝐢𝐧 𝐜𝐢𝐫𝐜𝐮𝐦𝐬𝐭𝐚𝐧𝐜𝐞𝐬” (ولهذا تقبل شهادتها وحدها في مواضع). Someone reading Fadel’s article does not get that impression and would likely assume that Ibn Taymiyyah and Ibnul Qayyim extended this to all cases such as hudud, for instance. In fact, what they had in mind were matters that men were not typically concerned with (see Ibn Taymiyyah’s stance clarified here https://www.islamweb.net/ar/fatwa/56530/ , and as for Ibnul Qayyim, he was pretty clear when he said: فالأقْوالُ ثَلاثَةٌ، أرْجَحُها: أنَّهُ تَجُوزُ شَهادَةُ النِّساءِ مُتَفَرِّقاتٍ فِيما لا يَطَّلِعُ عَلَيْهِ الرِّجالُ غالِبًا).

And Fadel cannot argue that Ibn Taymiyyah’s reasoning strictly considered sociological factors, for Ibnul Qayyim in his Toroq al-Hukmiyyah cites Ibn Taymiyyah’s appeal to the hadith on the deficiency of women’s aql and reasoned from that hadith that women’s aql is less than that of a man, however, where aql isn’t relevant to testimony such as matters where first hand sensorial experience is involved (e.g. birth, menstruation, skin defects, etc.), Ibn Taymiyyah did not find deficiency of aql to be a relevant factor.

Moreover, this could hardly be said to be the unique stances of Ibn Taymiyyah and Ibnul Qayyim anyway (see page 1042 onward from the first study that I linked to above). And even if Ibn Taymiyyah and Ibnul Qayyim permitted women’s testimony in all spheres as some try to claim, as Fadel himself acknowledges, “One should not infer from their analysis, however, that Ibn al-Qayyim and Ibn Taymiyya believed there was no difference in the probative value of men's and women's testimony.” So we are back to square one.

But once again, are we to understand that Ibn Taymiyyah, Ibnul Qayyim, and the other scholars that Fadel cited did not recognize that femininity was inherently the ratio legis behind the rulings directly deduced from the plain reading of the Qur’an and hadith? Hardly. Their appeals to scripture and the specificity of their nuanced stances demonstrated that their rational arguments were only devised 𝐚𝐟𝐭𝐞𝐫 𝐭𝐡𝐞 𝐜𝐨𝐧𝐜𝐥𝐮𝐬𝐢𝐨𝐧 they reached after having made a scriptural case about specific base rulings (e.g., women cannot testify in cases of had of zina according to 4:24, etc.). Could scholars have erred in inferring the additional reasons for the scriptural rulings and consequently misapplied qiyas in their extension to domains not explicitly backed by textual proofs? Sure. The scholars have disagreed on several of these issues, but they also formed an overwhelming consensus in other areas as well. Their attempts to rationalize these rulings are no different from our attempts to rationalize why eating pork is forbidden. They are making ijtihad to deduce the reasons behind why women’s testimony is discriminated against in certain spheres explicitly mentioned by scripture, and not whether they are or should continue to be. They are doing this for the purpose of qiyas so that they can decide whether to extend similar rulings to other spheres or not.

In other words, we cannot assume that if the likes of Ibn Taymiyyah were alive today, that they would somehow hold hands in solidarity with modernists in advocating for the equating of the testimony of women and men simply because the “times have changed.” Even if Ibn Taymiyyah’s stance was purely driven by sociological reasoning (which it wasn’t), he would still scold us for various reasons upon seeing how many Muslims have become lax in their gender interactions and for the radical transformation in gender roles exhibited in particular Muslim polities. Someone like Ibn Taymiyyah would not change his stance on a law he deems to be fixed in the Shariah due to societal changes that are Islamically questionable, to begin with.

In summary, the scholars were primarily driven to adopt the views that they did by reading scripture. They read Qur’anic passages such as 2:282, 4:24, etc. and ahadith referring to the general prophetic remark pertaining to the deficiency of women’s aql and its casual correlation to the probative value of their testimony relative to men. They recognized that these scriptural texts were fixed concerning these rulings on women. They saw that scripture was discriminating against the testimony of women as a gender group in certain instances. But why? What really is/are the reason/reasons for this? Here, the scholars differed in interpreting why and this led to different camps proffering different reasons, which in turn directly impacted their analogical reasoning when they sought to apply rulings in spheres beyond what was mentioned in scripture. But one thing was certain in the eyes of all these scholars and that is that there is something inherently connected to women that Islam considers when discriminating against the probative value of their testimony, relative to men, in at least specific instances. 𝐓𝐡𝐚𝐭 𝐚𝐬𝐩𝐞𝐜𝐭 𝐢𝐬 𝐟𝐢𝐱𝐞𝐝 𝐟𝐨𝐫 𝐜𝐞𝐫𝐭𝐚𝐢𝐧. Undoubtedly, the way one interprets these texts would greatly impact the qiyas that would follow in extending the rulings to different domains.

To think that modernists with their gender-egalitarian agendas could somehow appropriate any of these mainstream scholarly stances to represent their own is highly misinformed and wishful thinking.