Two Women, One Man: Knowledge, Power and Gender in Medieval Sunni Legal Thought

Abstract

Pre-modern Islamic law famously discriminated against female testimony, in some cases excluding it entirely and in other cases according it half of the weight of a man's testimony. It is often assumed that this discrimination is a function of a faith-based assumption derived from Quran 2:282 which could be read to suggest that women are intellectually inferior to men. This paper shows that while such assumptions regarding the intellectual inferiority of women certainly existed among pre-modern Muslim clerics, such assumptions do not adequately explain other rules of Islamic law regulating validity of evidence, both inside and outside the courtroom, in which a norm of gender equality prevailed. Accordingly, medieval Sunni Muslim jurists developed an account of the laws of testimony that looked to the political context in which evidence was being proffered. In contexts that were not considered politically contested, such as the production and transmission of general knowledge -- whether religious or secular -- a norm of gender equality was established. In politically charged contexts, however, a discriminatory norm applied that was justified on political rather than on epistemological grounds. Indeed, the political nature of testimony led many pre-modern Muslim jurists to accept the possibility that women could also serve as judges in any dispute which would admit the testimony of a woman. The paper argues that Muslim jurists, because of the unique structural features of law as a discourse in comparison to scriptural exegesis, were better positioned to challenge theological readings of Quran 2:282 which posited the inherent intellectual inferiority of women. More generally, the approach of the paper suggests that Muslim feminists would be better off using jurisprudence as a source of authority for legal change in Muslim countries rather than making appeals to the original meaning or intent of revelation.