Re-establishing juristic expertise. A historic congress of female Islamic scholars
Mirjam Künkler and Eva Nisa, researchers with decades of expertise in Islamic authority and gender, dissect the outcomes of the first congress of female Islamic scholars held in Indonesia in April 2017. They examine the historic significance of the event based on interviews with women scholars and male attendees and the analysis of the copious materials issued by the congress.
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, 1 Schneider, I. 2012. Women in the Islamic World. Markus Wiener Publishers. and the opinions of women jurists2 Khaled Abou El Fadl. 2009. ‘Legal and Jurisprudential Literature: 9th to 15th Century’, Encyclopedia of Women & Islamic Cultures. General Editor Suad Joseph. 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.3 Kloos, D. & Künkler, M. 2016. ‘Studying Female Islamic Authority: From Top-Down to Bottom-Up Modes of Certification’, Asian Studies Review 40:479-490. 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 other family members, 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 and Turkey, programs have been set up to train women as muftis (jurists who can issue fatwas or expert legal opinions). Judicial institutions in Malaysia 4 Gooch, L. ‘The female face of Islamic law in Malaysia’,16 Aug 2017, https://tinyurl.com/femalelaw; also Kamarudin, S. 2017. Access to Justice: Women’s Experiences in Penang Syariah Courts, SIRD. and the Palestinian Authority 5 Salam, K. ‘Palestine: First Females Islamic Judges Inaugurated in Palestine’, 18 Feb 2009, http://www.wluml.org/node/5082 have begun to hire female judges in their Sharia courts. In a similar trend, Indonesian organisations recently joined forces to convene the Muslim world’s first congress of ulama perempuan: women Islamic scholars. 6 See the website of the congress: https://kupi-cirebon.net This historic event, held in late April 2017 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.
Women’s juristic authority 7 Künkler, M. 2013. ‘Muftīyah’, The Oxford Encyclopedia of Islam and Women. Oxford University Press. was squarely on the agenda of the congress. Juristic authority in Islam can manifest itself in several ways including by leading prayer, reciting the Qur’an, delivering a sermon, or 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. 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. They are not binding, but can carry great weight depending on the moral authority of the issuer. In some countries, policy makers take fatwas of leading Islamic authorities into account 8 Künkler, M. & Fazaeli, R. 2011. ‘The Life of Two Mujtahidahs: Female Religious Authority in 20th Century Iran’, in Bano, M & Kalmbach, H. (eds.) Women, Leadership and Mosques: Contemporary Islamic Authority. Brill Publishers, pp.127-160, http://dx.doi.org/10.2139/ssrn.1884209 when, for example, considering reforms to family law, Islamic finance, or food and medicine regulations.
The second way juristic authority is exercised is by serving as a judge in an Islamic court where non-codified Islamic law is applied (which means judges must interpret original sources, as there is no codified text issued by the state, like a statute or book of law). This requires deep engagement and expertise in interpreting religious sources. The needed erudition and experience to act as a judge of non-codified Islamic law 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 of Islamic law have been trained in the country’s Islamic state institutes. Although female judges were unheard of when the institutes first opened – and remain a minority – admission was not restricted to men. Starting in the 1960s, women also completed this advanced training and over time many have been appointed judges in Indonesia’s Islamic courts. 9 Nurlaelawati, E. & Salim, A. 2013. ‘Gendering the Islamic Judiciary: Female Judges in the Religious Courts of Indonesia’, Journal of Islamic Studies 51(2)
In 1970, Sudan also appointed women as judges in courts applying what is 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 appointed the first woman judge to its Islamic courts just a few months ago. 10 Jacobs, S. ‘Why Orthodox Jews Tried and Failed to Block Israel’s First Woman Sharia Court Judge’, 27 April 2017, https://www.haaretz.com/opinion/1.785991
Faced with the limited participation of women in the juristic process, the congress in Indonesia aimed to raise awareness about pioneering developments and strengthen local initiatives to promote women’s juristic authority in Islam. Importantly, it showed that it is not only women who support this struggle. Male scholars, while a minority, were also among the speakers and attendees. At the congress’s core was musyawarah keagamaan (religious deliberation) to formulate fatwas. The women ulama at the congress issued three fatwas. 11 Available at: https://kupi-cirebon.net/musyawarah-keagamaan 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 ulama organisation, which has become an influential voice in Indonesia’s legislative process, and championed a number of anti-pluralist developments in recent years.
The first fatwa of the women’s congress focused on sexual violence. It emphasised that such violence, including within marriage (marital rape), is forbidden under Islamic law (haram). It also distinguished zina (adultery and fornication) from rape, and stressed that victims must receive psychological, physical and social support – not punishment. The second fatwa concerned child marriage and denounced the practice as harmful (mudarat) to society. The ulama’s accompanying commentary called 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 reminded ordinary Muslims and imams that it was obligatory (wajib) to prevent them.
The third fatwa linked environmental destruction and social inequality. It described environmental degradation for economic gain as haram and asserted that it had, in recent decades, exacerbated economic disparities in Indonesia, with women being the most affected. It noted how drought, for example, added to the burdens of rural women typically responsible for preparing food and fetching water. Deliberations on this fatwa also touched on issues of land and forest governance, and on the impact of deforestation on women in particular. It was demanded that the Indonesian government impose strict sanctions on perpetrators of environmental destruction. Among other issues, the discussion highlighted the damaging effects of illegal deforestation campaigns to make space for vast palm oil plantations.
The women ulama based their religious interpretations on four sources: the verses of the Qur’an, hadith, aqwal al-ʻulama (views of religious scholars), and, interestingly, 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 issuing of the three fatwas is of major significance. It shows that women ulama have the ability and the expertise in Islamic sources to formulate these recommendations. The fatwas also demonstrate that the ulama perempuan do not restrict themselves to the Qur’an, hadith, and other classical Islamic texts. Like the best judges in any society, they do not only aim to interpret classical legal texts but also develop legal proficiency in diverse contemporary issues.
Indeed, the participants produced more than fatwas, which usually consist of only a few pages of argumentation. The congress considered a large range of sources during its deliberations, including evidence of conditions and challenges faced by women. It also produced far longer and more in-depth written explanations and legal opinions. Some Indonesian gender rights activists, and Indonesian fatwa committees themselves, use the term sikap keagamaan (religious views) for recommendations that come out of this complex deliberation process. But whether one calls these recommendations fatwas or sikap keagamaan, their significance was clear: the congress was a historic step towards re-establishing 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. Among her publications are Democracy and Islam in Indonesia (Columbia University Press, 2013), A Secular Age beyond the West (Cambridge University Press, 2017) and, forthcoming, Female Religious Authority in Islam (Edinburgh University Press, 2018).
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 and a PhD from Australian National University. Her research focuses on women in Islamic movements, types of Muslim marriage and divorce in Indonesian Islam, and da’wa (proselytization) through social media.
This present version is an adaptation of the original article that first appeared on the online independent global media platform ‘Open Democracy’ on 26 June 2017; https://tinyurl.com/kunklernisa.