Can women interpret Islamic law? Scholars who think so recently gathered in Indonesia, where fatwas were also issued against child marriage and environmental degradation.One of the religious deliberation sessions. Photo: Dr Nur Rofiah. (Images courtesy openDemocracy)
Can women interpret Islamic law? This question would have been a ‘no-brainer’ to a Muslim from Damascus in the 12th century, when women served as renowned teachers of the Islamic tradition, and the opinions of women jurists on questions of Islamic law carried weight comparable to that of male jurists.Yet, if one asks a Muslim today: have you ever asked a woman for an interpretation of Islamic law?, the answer from Dakar to Dhaka, from Sarajevo to Cape Town, from Jakarta to Ann Arbor will usually be “no”.
Women are not asked to interpret Islamic law, and few expect them to do so. Very often, this is because women are not sufficiently trained for this work. If they are, they tend to be consulted only on so-called ‘women’s issues’ such as child rearing, a wife’s duties towards her husband and towards others in the family, household organisation, and hygiene.
In recent years, however, Muslims in different parts of the world have started to address gender imbalances in juristic expertise. In India, Turkey and Morocco, programs have been set up to train women as muftis (jurists who can issue fatwas or expert legal opinions). Judicial bureaucracies in Malaysia and the Palestinian Authority have begun to hire female judges in their sharia courts.
Recently, Indonesian organisations also joined forces to convene the Muslim world’s first congress of ulama perempuan: women Islamic scholars.
This historic event, held in late April in Cirebon, West Java, was nothing short of a breakthrough in terms of re-establishing the long-lost juristic authority of women to produce Islamic legal recommendations and rulings. It concluded with the issuance of three historic fatwas – against sexual violence, child marriage, and environmental degradation exacerbating gender inequality.
Between us, we have studied Islamic authority and gender for decades. We interviewed several of the women scholars, as well as some of the male attendees, involved in the event to learn more about it and the deliberations process. We have also been able to analyse some of the copious explanatory material issued by the congress.
It was nothing short of a breakthrough in terms of re-establishing women's juristic authority
Women’s juristic authority was squarely on the agenda. Such authority can manifest itself in Islam in several ways including by leading prayer, reciting the Qur’an, delivering a sermon, transmitting a hadith (a saying of the prophet). The pinnacle of this authority is the ability to interpret Islamic sources to make recommendations of behaviour in the here and now.
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In most contemporary Muslim societies, this is exercised in two main ways. The first is by issuing fatwas. These are legal recommendations based typically on interpretations of the Qur’an and hadith. (Different sects in Islam regard different hadiths as authentic, and therefore the specific source material differs from sect to sect.)
A person trained to issue a fatwa is called a mufti, with the feminine form in Arabic muftiya. Fatwas are only recommendations and they are not binding. But they can carry great weight. In some countries, policy makers take fatwas of leading Islamic authorities into account when, for example, considering reforms to family law, inheritance, Islamic finance or food and medicines regulations.
The second way this authority is exercised is by serving as a judge in an Islamic court. This requires deep engagement and expertise interpreting religious sources, and the needed erudition and experience can take decades of study and training to acquire.
In Indonesia, for instance, family courts for the Muslim majority apply Islamic law (non-Muslims are subject to civil family law). Since the 1950s, judges for these courts have been trained in the country’s Islamic state institutes.
Although female judges of Islamic law were unheard of at the time – and remain a minority – admission to these institutes was not restricted to men. And so women also completed this advanced training and, from the 1960s, some have been appointed judges in Indonesia’s Islamic courts.
Women ulama visit the Indonesian minister of religious affairs before the congress. Photo: Dr Nur Rofiah.
In 1970, Sudan also appointed women as judges in courts applying what’s known as “non-codified” Islamic law (under which judges must interpret original sources, as there is no codified text issued by the state, like a statute or book of law).However, it would take another 35 years before women would be appointed to Islamic courts in other countries. Malaysia did so in 2005, the Palestinian Authority in 2009, and Israel just a few months ago appointed the first woman judge to its Islamic courts.
The congress in Indonesia aimed to raise awareness about these developments and strengthen local initiatives to promote women’s juristic authority in Islam. Importantly, it showed that it’s not only women who stand behind this struggle. Male scholars, while a minority, were also among the speakers and attendees.
It’s not only women who stand behind this struggle. Male scholars were also at the congress.
It’s not only women who stand behind this struggle. Male scholars were also at the congress. At the congress’s core was “musyawarah keagamaan” (religious deliberation) to formulate fatwas. In many Muslim countries fatwas are associated with individual Islamic leaders, but Indonesia has a long tradition of fatwas issued by Islamic institutions’ ‘fatwa commissions.’
The women ulama at the congress issued three fatwas. This in itself was historic as fatwa issuing has long been monopolised by male clerics. (There are, for example, only seven women ulama out of 67 members of the fatwa commission of Majelis Ulama Indonesia (MUI) – a prominent Islamic organisation, set up by the government in the 1970s).
The first fatwa issued focused on sexual violence. It emphasises that such violence including within marriage (marital rape) is forbidden under Islamic law (haram). It also distinguishes zina (adultery and fornication) from rape. It emphasises that victims must receive psychological, physical and social support – not punishment.
The second fatwa concerns child marriage. It says these practices bring harm (mudarat) to society. The ulama’s accompanying commentary calls for raising the Indonesian legal marriage age for girls from 16 to 18 years. Importantly, as most child marriages are not registered with the state in the first place, the fatwa also tells ordinary Muslims and imams that it is obligatory (wajib) to prevent them.
The third fatwa links environmental destruction and social inequality. It describes environmental degradation for economic gain as haram and says it has in recent decades in Indonesia exacerbated economic disparity with women the most affected. It notes how drought, for example, adds to the burdens of rural women typically responsible for preparing food and fetching water.
Participants told us that deliberations on this fatwa also touched on issues of land and forest governance, and how deforestation affects women in particular. It demanded that the Indonesian government should impose strict punishments on perpetrators of environmental destruction. Among other things, the discussion noted illegal deforestation campaigns in Indonesia to make space for vast palm oil plantations.
Like the best judges in any society, the women ulama are also experts in diverse contemporary issues.
The women ulama based their religious interpretations on four sources: the verses of the Qur’an, hadith, aqwal ‘ulama (views of religious scholars), and the Indonesian constitution. They used a methodology called “unrestricted reasoning” (istidlal), with stated aims to maximise maslaha (public interest) and reduce mudarat (harm) to arrive at rulings.
The three fatwas show that women ulama also have the ability and the expertise in Islamic sources to formulate these recommendations. They also show that the ulama perempuan do not restrict themselves to the Qur’an, hadith, other classical Islamic texts, and talking about the past. Like the best judges in any society, they are also experts in diverse contemporary issues.
Indeed, Nur Rofi’ah, an expert in Qur’anic and gender studies who took part in the congress, told us that it produced more than fatwas, which usually consist of only a few pages of argumentation.
The congress considered a larger range of sources during its deliberations, including evidence of conditions and challenges faced by women. It also produced far longer and more in-depth textual explanations.
Some Indonesian gender rights activists, and Indonesian fatwa committees themselves, use the term sikap keagamaan (religious views) for recommendations that come out of this more complex deliberation process and outcome.
But whether one calls these fatwas or sikap keagamaan, their significance was clear: This congress was a historic step towards reestablishing the long-lost juristic authority of women to produce Islamic legal recommendations and rulings.
Dr. Mirjam Künkler is senior research fellow at the Swedish Collegium for Advanced Study and author of Democracy and Islam in Indonesia, (Columbia University Press, 2013). She has recently published a special journal issue on female Islamic authority in southeast Asia, in the Asian Studies Review 40, 4 (December 2016).
Dr. Eva Nisa is a lecturer in religious studies at Victoria University of Wellington, New Zealand. She has a bachelor’s degree from Al-Azhar University in Cairo in 2002 and a PhD from Australian National University. Her research focuses legal and illegal marriages in Indonesian Islam.
This article was first published on openDemocracy.