The Custom ( ʿurf ) Based Assumptions Regarding Gender Roles and Norms in the Islamic Tradition

Custom (ʿurf) and Islamic Law

Given the dynamic, discursive concept of the Islamic tradition outlined above, the questions I would like to briefly pursue are: what is the place of custom (ʿurf) based considerations in Islamic legal thought and how does it affect the process of interpretation of the Qurʾān and Sunna? The answers to these questions will assist us in understanding how custom-based gender related assumptions in Islamic legal tradition have impacted on interpretations of the Qurʾān and Sunna in the following section.

The importance of custom in Islamic legal tradition is well recognized (Shabana, 2009; Zakariyah, 2012). Shabana, in his recent study on customary implications in Islamic Law, asserts that the treatment of custom in legal theory is particularly important because of its direct connection with the critical issue of social change, and that custom “offers an illustrative example of a crucial dynamic that connects legal theory (uṣūl al-fiqh) and substantive law (furūʿ al-fiqh) in the Islamic legal tradition” (Shabana, 2009: 9). Importantly, elsewhere he states that custom-based considerations “permeate[s] the various stages of the legal process and that the role of custom is crucial for the interpretation of the textual sources, determination of their signification, and their scope of application” (Shabana, 2009: 17).

Given this important role of custom in Islamic legal tradition, one question that needs to be addressed for the purposes of this article is what approach, from a normative vantage-point, was taken by the Qurʾān and Sunna in relation to the status of pre-Islamic customs and how this affected their interpretations.

Among others, Izutsu (2002) and Hallaq (2005: 32–33) have argued that the emerging Qurʾānic Weltanschauung during the revelationary period was not completely divorced from its pre-Qurʾānic one. Although the Qurʾān is to be considered an independent ethico-religious and linguistic entity with its own worldview, it did not claim a complete epistemological break with pre-Qurʾānic Arabia. At this point it would be wise to remember the words of a leading expert on the Qurʾān, Abu Zayd (d. 2010) (for whom the Qurʾān is not regarded as a text but as a discourse), who convincingly argues that the Qurʾān itself was the outcome of dialogue, debate, argument, acceptance and rejection, both with pre-Islamic norms, practices and culture, and with its own previous assessments, presuppositions and assertions (Abu Zayd, 2006: 99). As noted by one of the leading contemporary Muslim intellectuals, Soroush, the language and the worldview of the Qurʾān basically realigned already familiar concepts by creating new central and peripheral relationships between them. Soroush argues that with the advent of Qurʾānic revelation, concepts based on the Arab culture took on a new spirit with reference to the new source of authority. The Qurʾān and the Prophet of Islam employed Arab based cultural concepts at their disposal to erect a new edifice which is related to that culture but goes beyond it (Madaninejad, 2011: 82–83). Over the revelationary period spanning some two decades, the Qurʾān and Sunna either rejected, modified, mitigated or accepted the socio-cultural values and morals of the Arabian tribal communionism of pre-Qurʾānic Arabia in accordance with the budding Qurʾānic ontological and ethico-religious value system. Hence, with reference to the question of the origins of ʿurf in Islamic law, Shabana aptly notes that “the study of the diachronic development of custom as an abstract tool in legal theory reveals that it originated in the two primary sources of the Qurʾān and the Sunna of the Prophet” (Shabana, 2009: 18).

The concept of custom and the question of the form in which it was considered a legitimate source of legal authority in the Islamic legal tradition, generally speaking, were analyzed within a contextual and hierarchical system of legal sources developed over time by Islamic legal theories. Custom was regarded as a source as long as it was considered not to conflict with a higher source of the law. Within this framework, Shabana notes, it was the specific legal context that would ultimately be determinative with respect to the admissible types of proofs or legal sources, which may, at times, be custom itself (Shabanah, 2009: 69).

Before I examine the concept of ʿurf in the Qurʾān and Sunna in more detail, a brief definition of the term is in order. Etymologically, the word ʿurf is derived from the root of the verb that means “to know” (Al-Burnu, 2002: 276). Its technical definition is “what is established in life from reason and acceptable by sound natural disposition” (Al-Jurjani, 1988: 154). ¹

The word ʿurf is commonly used to mean two things: “what is known” as opposed to “what is unknown,” and “what is good, wholesome or commendable.” Linguistically, ʿurf refers to any common practice, whether good or bad. Juristically, it refers exclusively to “the common practice which has been established as good by the testimony of reason and which has become acceptable to people’s disposition” (Al-Jurjani, 1988: 93).

The concept of ʿurf in the Qurʾān is symbiotically linked to the concept of the good (maʿrūf). Hence, according to Shabana, “some exegetes argued that ʿurf can serve as source of not only legal but also moral normativity” (Al-Jurjani, 1988: 70). The legal dimension of the concept of ʿurf in the Qurʾān is usually traced back to 7:199 (Al-Jurjani, 1988: 95). Muslim scholars have developed three main interpretations of the word ʿurf in this verse: (i) the most common one, which means “what is good and commendable”; in this sense ʿurf refers to all the values and actions which are deemed praiseworthy and good by sharīʿa; (ii) “what is known and accepted as a good common practice”; (iii) “what is known to be important and necessary” (Al-Jurjani, 1988: 95–96).

The word maʿrūf in the Qurʾān has the meaning of goodness, kindness, benevolence as well as a recognized norm or an ethical value (employed in an ethically objective manner) used to interpret divine injunctions (Ibn Qutaybah, n.d.: 4; Al-Jurjani, 1988: 96). Importantly, as noted by Shabana, when there is a reference to ʿurf in the Qurʾān it is often employed in its implicit meaning. This is because of the nature of the Qurʾānic injunctions that have legal implications, most of which are generalist in nature. Hence, the Qurʾān assumes that these injunctions will be interpreted or understood in the light of prevalent customary, and commonly recognized practices and values (Shabana, 2009: 99–100; Duderija, 2013). ² There is no evidence in the Qurʾān to suggest that the Qurʾān considered that these customary values and practices cannot or should not evolve. On the contrary, as discussed below, the Qurʾān clearly intended to mitigate the harmful effects of many gender-based customary practices prevalent at the time of revelation.

The concept of ʿurf also permeates the literature that reports and documents the life of the Prophet, known as the ḥadīth. In this context Shabana (2009: 103; Al-Shalabi, 1986: 323) opines that the approach taken by the Prophet to ʿurf is in complete accordance with the attitude of the Qurʾān explained above, that is as long as ʿurf did not undermine what people considered to be part of sharīʿa (in the sense of Islamic law) people’s common practices were accepted. Shabana opines that when it comes to conceptualizing the relationship between the Sunna of the Prophet (in his role as a carrier and communicator of revelation) and pre-Islamic customs, we can identify three types of “Sunna”: the affirmative, reformative and prohibitive. The first two categories were more or less entirely integrated into Islamic law, while the last one was discarded (Shabana, 2009: 109). Here I would like to highlight, however, that this process of establishing what is considered to be an affirmative, reformative or prohibitive Sunna depends on two crucial considerations. Firstly, on how Muslims interpreted how the Prophet understood and embodied the concept of “Sunna” and what the Sunna’s scope, nature and hermeneutical relationship with the Qurʾān and ḥadīth was (Duderija, 2009). Second, and relatedly, the process also depended on how the concept of Sunna itself was conceptualized (and possibly evolved) by Muslims as well as its hermeneutical relationship with the Qurʾān and the concept of a “sound” ḥadīth (Duderija, 2012). Hence, custom in its affirmative and reformative kind, to use Shabana’s terminology, was integrated into Islamic law by identifying it with a particular understanding of the concept of Sunna or later with ijmāʿ (consensus of Islamic scholar). Importantly, as noted by Lisbon et al. (2014), before the body of ḥadīth was canonized in the 11th century Hijri, there was in fact no need to accept custom as a formal source of law, for custom could still become part of Sunna by finding expression in ḥadīth (Lisbon et al., 2014).

As discussed eloquently at length by Zakariyah (2012), Shabana (2009) and Lisbon et al. (2014), apart from having a basis in the Qurʾān and “Sunna,” the concept of custom was present in and has entered the Islamic legal tradition through a number of other legal mechanisms including such as in the form of analogical reasoning, juristic preference, taking recourse to legal maxims and in the context of discussions surrounding the objectives-based (maqāṣid al sharīʿa) approaches to Islamic law and legal theory. The details of the Islamic legal theory of how exactly ʿurf was incorporated into these legal and hermeneutical tools is not directly of relevance to us, and readers can refer to the important work of Shabana for details (Shabana, 2009).

The concept of ʿurf with its pre-Qurʾānic origins, like other Qurʾānic concepts such as benevolence (iḥsān), evil (munkar) or Sunna itself (Duderija, 2012), was evaluated and filtered by Muslim scholars through the emerging Qurʾān–Sunna worldview as well as the subsequently developed legal tradition in order to separate those customary practices and values which were considered to be in line with this new worldview from those which were not. Again, it is crucial to underscore that the outcome of this process was the result of the understanding/interpretation made by those who were in charge of formulating the Islamic tradition. It depended on the question to which extent and how the Muslim communities, past and present, understood and identified the relationship between the ʿurf based and normative elements of the Qurʾān and Sunna and how they employed this relationship in their overall hermeneutics.

This process of separation, as we will discuss below, was based on jurists’ own interpretations of the Qurʾān and Sunna (or an Islamic law school based Qurʾān–Sunna hermeneutic for those who subscribed to its normative nature) and was tainted by interpreters’ own personal biases and/or presuppositions and their overall Sitz im Leben (Bauer, 2008).

Importantly the ʿurf based injunctions that featured in the Qurʾān and which can be found in the texts of the ḥadīth were considered reasonable and just by their contemporary community of listeners. In the words of Kadivar (2011: 479):

Islam signed off on the pre-Islamic customs’ commandments as they existed, or with reforms in such a way that one might consider these commandments to have been revealed as marginalia to the common usage (ʿurf) of the Age of Revelation. Clearly the common usage (ʿurf) of that time was not scripture bounded (tawqīfī), imitational (ta’abbudī), and sacred (qudsī), otherwise they would not be used by the reasonable people (uqalā). These commandments were legislated to achieve justice and advocate human communities’ worldly interests.

However, this is not to imply that these ʿurf based legal injunctions and laws would continue to be considered reasonable and perceived as just forever. Kadivar (2011) in this context makes the following assertion:

On the other hand, one may not deny that human issues, particularly in the spheres of the social and human communities’ common usage (ʿurf), have been severely transformed and that many things which were considered just, moral, reasonable and normal in centuries past would be considered oppressive, immoral, abnormal, and contrary to the way of reasonable people.

In summary of this section, for the purposes of our present article, it is important to highlight that some existing gender-based customs that the Qurʾān and Sunna addressed were incorporated into Islamic law through a number of legal processes and mechanisms and that the processes behind the decision making as regards what constitutes an admissible custom and what does not were based not only upon certain interpretations/conceptualizations of the Qurʾān and Sunna but also, as discussed in the next section, on the basis of Muslim scholars’ views and assumptions regarding gender-appropriate practices, norms, behaviors and values all of which impacted upon their interpretations of the Qurʾān and Sunna. Importantly, the ʿurf based elements in the Qurʾān and Sunna were considered by the first community of the Qurʾān’s listeners as just and reasonable for that time and place.

In the following section I outline and discuss some of the gender-related assumptions and theories found in the classical Islamic tradition.

ʿUrf Based Gender Assumptions and Classical Islamic Tradition

The approach to gender issues in the classical Islamic tradition is based upon a number of custom-based assumptions regarding what are considered “inherent” male and female natures. These assumptions, in turn, have given rise to a number of gender-specific rights and responsibilities and have engendered certain normative gender-based roles and norms. Importantly, these gender-based assumptions have found their expression in virtually all spheres of traditional Muslim societies, both private and public, including the legal, socio-cultural, political, educational, and religious, as well as in terms of general conduct and behavior (Mahallati, 2010).

Most of these gender-based assumptions can be traced back to the traditional Muslim scholars’ subscription to the theory known in the relevant literature as “gender complementarity,” which, for reasons outlined below, I refer to as “gender oppositionality.” By this phrase I wish to convey the idea that (neo-)traditional Muslim scholars, who were all males, construct(ed) normative masculinity almost exclusively in terms of anti-femininity and vice versa.

This “gender oppositionality” theory has several dimensions to it. One element relates to theories on supposed gender-specific emotional and cognitive capacities. In a nutshell, with respect to the latter, the gender “oppositionality” thesis states that women, unlike men, are highly emotional beings with weak and easily befuddled or, according to some, deficient rational faculties. One striking example of this belief can be found in Ibn Manzur’s (1992: 97) authoritative lexicon of the Arabic language, Lisan Al -’Arab, where, in his entry on raʿy, which he defines as “well considered opinion, mental perception and sound judgment,” he applies this description to some males only and considers that women as a general category of humanity could not possess raʿy.

Another example of the “gender oppositionality” thesis can be found in the writings of the celebrated and highly influential classical Muslim scholar Al-Ghazali (d. 1111), who relates that the fourth Sunnī caliph Ali and the first Shīʿī Imam are recorded as having said the following:

The worst characteristics of men constitute the best characteristics of women; namely, stinginess, pride and cowardice. For if a woman is stingy, she will preserve her own and her husband’s possessions; if she is proud, she will refrain from loose and improper words to everyone; and if she is cowardly, she will dread everything and will therefore not go out of her house and will avoid compromising situations for the fear of her husband. (Al-Ghazali, 2012: 78)

As stated above, another important assumption behind the “gender oppositionality” theory pertains to the nature of female and male sexuality. According to this view, sexuality is a crucial (but, as we saw above, not the only) marker of what constitutes normative masculinity and femininity. These sexual differences are said to be based on biological and mental functions and capacities that strongly differentiate the sexes, as exemplified in the idea of “gender oppositionality.” According to this view, the category of “woman” is posited on an artificial split between body and mind, sexuality and spirituality. The category of the female gender is constructed primarily in sexual terms. Women are identified with the “irreligious” realm of sexual passion, as repositories of all “lower” aspects of human nature, the very antithesis of the “illuminated” sphere of male (religious) knowledge pertaining to men, who are the sole bearers of religious authority. This “gender oppositionality” thesis also considers the female nature to be derivative vis-à-vis the male, whose superiority is at times conceptualized as being both ontological and socio-moral (Duderija, 2011; Shaikh, 2012).

Importantly, women and their sexuality are conceptualized and constructed as sources of socio-moral chaos (fitna), as the embodiments of seduction and a threat to a healthy exclusively male public social order (Sabbah, 1984). ⁴ The concept of women as sources of fitna, proceeds from the premise embraced by (neo-)traditional Muslim male scholars that the sexual allure of the female for men, and women’s reputed looseness, can have catastrophic consequences for the well-being of entire human societies. For example, this belief is exemplified by a noted “neo”-traditional Islamist from Pakistan, Al-Maududī (d. 1979), whose insistence on women’s confinement to their homes was argued on the basis of his belief that women’s entry into the public domain caused immorality of immense proportions leading to the decline and fall of a once-mighty power like Greece. As noted by Ahmad (2012: 556):

Maududi saw woman’s body as a source of fitna and destructive of nature’s wish for a pious civilization. Outside of her home the sight of an unveiled woman is a visual sin inevitably inciting sexual storm in men, which in turn prefaces the ultimate sin – copulation. According to him, Islam at most allowed a woman to unveil only her face and palms. Even in the presence of mahram ⁵ in the home, she was obliged to observe this norm. A pious woman in the era of the Prophet, Maududi noted, covered herself from head to toe by wearing neqab. She also wore gloves to hide her palms. Further, a woman’s voice, gait, smell, not to speak of gaze, was all fitna. He made no difference between a woman and her photograph, for the consequence of both was chaos.

“Women as fitna” discourse did find its expression in small parts of the ḥadīth literature. For example, the Prophet reportedly made a statement found in a much revered collection of the sayings attributed to him that there was no “fitna more harmful to men than women” (Al-Bukhari, n.d.: 419). A similar ḥadīth narrates that the Prophet had stated as follows:

The life of this world is sweet and green, and verily Allah has appointed you as His viceregents in it so that He may see how you act. So beware of the world and beware of women. For certainly, the first trial (awwal fitna) of Banu Isrā’īl was through women.

The centrality of this “women-as-sources-of-fitna discourse” in the (neo-)traditional Arabo-Muslim worldview is argued by a number of scholars (El-Cheikh, 1997; Mernissi, 1991; El-Fadl, 2001). For example, El-Cheikh states that this discourse “is a key concept defining the dangers that women, and more particularly their bodies, provoked in men and is a constant theme in Arabo-Islamic literary tradition” (El-Cheikh, 1997: 240).

This concept of women as fitna is, in turn, constructed on the idea of women’s superior sexual desire (shahvat) to that of men, which, according to several ḥadīth, God supposedly endowed upon women but counterbalancing it with higher levels of modesty (Al-Kulayni, 2007, v. 5: 203). ⁶ These types of ḥadīth have found expression in and have been accepted as normative by both Shīʿī and Sunnī branches of Islam, on the basis of which certain “modesty laws” such as gender segregation, public invisibility of women and their constant surveillance were/are (being) upheld as the religious ideal.

As convincingly argued by Alshech, one important aspect of the women as fitna discourse is that it emerged strongly only in the writings of post-fourth-century (Islamic calendar, AH) Muslim scholars, who, unlike their predecessors, started to increasingly link their explanations and justifications for “modesty laws” such as gender segregation, seclusion of women and veiling, to sexual morality (rather than social reputation, as will be discussed below). Alshech (2007: 267) writes:

In this story women are no longer cast as the innocent victims of men’s disgraceful behavior but, instead, are themselves portrayed as a moral hazard, deceiving and tempting decent men, who otherwise pursue only appropriate women.

In essence, the “modesty” laws that these jurists formulated served as tools for curtailing the “dangerous” (for salvific purposes of Muslim men) sexual power of women in order to maintain the sexual morality of men and thereby the social order in which men are active. Hence, a process of an increasing conceptual linking between women-as-fitna discourse and modestly laws was created whereby female modesty and female morality became intricately associated with each other.

However, as alluded to earlier, this process was, from a historical perspective, only secondary. As Alshech convincingly argues, prior to the fourth century AH, Muslim scholars’ discourse on woman’s modesty was primarily linked to that of defending the social status and honor of the family. In this context he writes:

To associate Islamic modesty regulations from the classical period exclusively with fear of fitna is to restrict and oversimplify a whole corpus of regulations that addressed multiple concerns. While Muslim scholars, at least from the fourth/tenth century on, were preoccupied with the power of women’s sexuality and its danger for sexual morality, the evidence makes it clear that in regulating modesty these same jurists were also motivated by a concern for safeguarding reputation. (Alshech, 2007: 288)

Given the above-outlined beliefs and assumptions regarding females’ cognitive and emotional predispositions, the exclusively male Muslim scholars took it upon themselves to put mechanisms in place which would minimize the risk of (free) ⁷ women putting their own honor and perhaps more importantly the honor of the families to which they belonged into question. The women could compromise the family’s honor by, for example, choosing to marry someone who was not equal to them in status or by behaving or interacting with the opposite sex in a way that would cause people to doubt their fidelity and purity. It is important to keep in mind that at the time when jurists were formulating these “modesty” laws, the societal norms were such that jeopardizing one’s honor and reputation would often entail severe negative economic, social and legal consequences for the entire family or tribe. Hence, a family’s honor and reputation were increasingly linked to the chastity of its women (Alshech, 2007: 272). Alsech expresses this idea well:

In a society in which the exchange of women through marriage constituted a common means of cementing social and economic bonds, the social image and reputation of a woman was critical to the social and economic well-being of the family or tribe. Accordingly, keeping a woman’s sexuality from the knowledge and conversation of people outside the family helped to ensure the family’s continuing ability to forge and fortify social and economic relations. Imposing a dress code on women helped to shield the family’s social standing, and thus its social capital, by ensuring that women were kept from the awareness and consciousness of non-kin men and, at the very least, that certain aspects of women’s lives remained unknown to people outside their households. (Alshech, 2007: 289)

The significance of social reputation considerations as an important element of the modesty laws in traditional Muslim thought is strengthened by the fact that, “jurists permitted extended physical and visual access to a woman’s body (and information about it) to household members whose reputation was tied to that of the woman and who thus had an incentive to refrain from divulging information about her” (Alshech, 2007: 287).

Importantly, in slave-owning societies of classical Islam, the modesty laws such as veiling and the wearing of full body cover dress (jilbāb) were applied to free women only and were hence markers of social status. The reference to this practice is found in the Qurʾānic verse 33:59–60. ⁸ Barlas (2002: 56) in her commentary of this verse recognizes the Qurʾān’s class-based modesty laws by stating:

[In] mandating the jilbāb, then, the Qurʾān explicitly connects it to a slave-owning society in which sexual abuse by non-Muslim men was normative, and its purpose was to distinguish free, believing women from slaves, who were presumed by jaḥilī [ignorant] men to be non-believers and thus fair game. Only in a slave-owning jaḥilī society, then, does the jilbāb signify sexual non-availability, and only then if jaḥilī men were willing to invest in such a meaning. (emphasis hers)

Hence, the extent to which the female body was covered served to signal first and foremost the social standing of a female person, separating the free and “respectable” women from less “respectable” female slaves. Class-based modestly laws therefore were put in place to protect free women from receiving (unwanted) public attention from non-related men. Given the nature of the societal norms of the time, this (unwanted) attention would be interpreted by the community as loss of family honor, which, as we stated above, would have a strong adverse socio-economic and legal effect on the family in question. The same modesty laws did not apply to slave women, since the society considered that disrespectful behaviors of men toward these women would not have any negative implications for their reputation or that of their masters (Alshech, 2007: 299).

Thus, the underlying operative assumption guiding the views of (neo-)traditional Muslim scholars on modesty laws was such “that a woman who exposed her face or her general beauty to strangers (mutabārrija) had a lower social standing than her modest counterpart” (Alshech, 2007: 289, fn 129). In actual fact, this kind of mentality found its expression in most unusual ways. For example, Alshech (2007) writes that:

the Islamic law held a completely covered, bashful woman (khāfira) in such high esteem that it released her (even as a defendant) from the duty of coming to court to give testimony, allowing her to avoid this normally public event and, instead, required the judge or his deputy to visit the woman’s house (along with the plaintiff) in order to hear her testimony.

The organic link between female modesty laws and family/male honor that was formulated by traditional Muslim scholars has survived in parts of the contemporary Muslim world. Bichr, in his tracing of the conceptual development of the concept of honor (ʿird), argues that the very concept of ʿird, in the present day, in some parts of the Middle East and Egypt has become restricted, to refer particularly to women, their virtues and beauty to such an extent that the honor of the husband/man depends entirely on his wife’s reputation and on that of his entire contingent of female relatives (Farès, 2014). Hence, the conceptual association of women = fitna = ʿird has a very strong foundation in the traditional Muslim societies.

Importantly, the concept of ʿird has found its strong expression in the classical Islamic tradition, in the idea of male sexual jealousy (ghairāt) that is being advocated as normative (neo-)traditional Muslim scholarship. The centrality of this practice is described by Hodgson (1961: 141–142), who states:

One can sometimes get the impression that the most important source of an individual man’s personal reassurance was his absolute control over his womenfolk. A woman’s “honor”, her shame, formed an important point in determining the honor of her man; indeed, perhaps the gravest insult to a man, which most insistently abridged his right to precedence and called for vengeance, was any impugning of the honor of his womenfolk. And all sexual jealousy was expected to be subsumed into the pattern of defending one’s masculine honor.

Indeed, traditional Muslim scholars, with the expansion of the Muslim Empire, have commented very negatively on the (presumed) absence of such a jealousy among Byzantine as well as Slav and other European men and the (presumed) promiscuity of their women (El-Cheikh, 1997: 243).

All of the above-described aspects of “gender oppositionality” and male (sexual) honor contributed to a particular construction of an ideal (Muslim) woman associated, among other things, with a particular conceptualization of female modesty and virtual public invisibility. Sabbah describes the qualities of this ideal female in terms of beauty as defined by “silence, spatial immobility (seclusion), and obedience … that are supposed to excite male desire in the context of the Muslim cultural order” (Sabbah, 1984: 3).

From our preceeding discussion in this section, we can conclude that traditional Muslim thought subscribes to a number of assumptions regarding appropriate gender roles and norms, which were based on certain customary beliefs and practices that were absorbed by Islamic law. Some of these assumptions have found support in parts of the canonical ḥadīth literature, which, in turn, have been used as a conceptual lens through which to interpret the Qurʾān and understand the concept of Sunna.

In the following section I argue that certain assumptions pertaining to the methodologies of interpretation of the Qurʾān (and Sunna) themselves have further contributed to the acceptance of the “gender oppositionality” thesis as reflecting the very Will of God. In doing so, I focus on one such hermeneutical mechanism, namely what I term “lack of comprehensive contextualization” of the Qurʾān and Sunna.

Examining ʿurf Based, Gender Based Assumptions through the Hermeneutical Lens of “Comprehensive Contextualization” of the Qurʾān and Sunna

In the first section of the article I described the nature of Islamic tradition and in the second I referred to the processes and mechanisms through which the concept of ʿurf has entered into it, especially into Islamic law and legal theory. In the third section I described the ʿurf based assumptions regarding the nature of the genders in (neo-)traditional Muslim thought. I have argued that these ʿurf based assumptions regarding gender norms are based on the theory of “gender oppositionality” and I have described some of its concrete manifestations, especially in the conceptual linking of women = fitna = ʿird = ghairāt. In this section I aim to describe how the hermeneutical mechanism of “comprehensive contextualization” of the Qurʾān–Sunna can problematize the ʿurf based gender oppositionality thesis and how, on the basis of this, an alternative interpretation of the same can be developed.

As argued by Duderija (2011), one element of traditional Qurʾān–Sunna hermeneutics can be described as semi-contextualist. For hermeneutical purposes it resulted in the decontextualization and marginalization of the Qurʾānic revelatory background and the important role this context played in the very shaping of the Qurʾānic content, and thus in the discerning of its actual nature and aims. The intrinsic contextuality of the Qurʾānic content ⁹ was de-emphasized and the interpretational approaches based on what Duderija terms the “comprehensively contextualist” methodology of interpretation of the Qurʾān and ḥadīth were not fully developed (Duderija, 2013).

In other words, the interpretational consequences of the traditional semi-contextualist Qurʾān–Sunna hermeneutics resulted in an inadequate hermeneutical recognition of the importance of the socio-cultural milieu and the prevailing norms, customs, beliefs and traditions of pre-Qurʾānic Arabia (that is, the entire pre-Qurʾānic worldview) in the understanding of the actual nature, character and intent of the Qurʾānic revelation and its embodiment in some of the practices, behaviors and values exemplified by the Prophet which were given the status of Sunna (Duderija, 2013). This is perceptively noted by Kadivar, who argues that in what he calls “historical Islam,” the sacred and timeless message of the divine revelation has been mixed with the “custom at the time of its arrival” (ʿurf-i ‘asr-i nuzul) and that all the problems that have entered into the traditional exegesis of Islam in the modern age relate to this “customary part” (bakhsh-i ʿurfī) of traditional Islam (Yasuyuki, 2011: 372). ¹⁰

Some of the most pertinent aspects of this pre-Qurʾānic Weltanschauung, in which the Qurʾān was revealed with respect to gender, include a patriarchal society based on certain cultural understandings of appropriate gender roles/norms (Keddie, 2007), the prevalence of slavery, the wide availability of female concubines and prostitutes (Ali, 2006), socio-culturally based and gender-specific beliefs and norms regarding proper and improper human conduct, and socio-culturally specific understandings of virtues and vices and of customs (Izutsu, 2002). All of these extra-scriptural elements played an important part in the process of interpretation of the Qurʾān and Sunna.

The traditional approaches to Qurʾānic interpretation did recognize the need for contextualization of (certain) Qurʾānic verses as evident in the Qurʾānic sciences of asbāb al-nuzūl (occasions of revelation) and naskh wa mansūkh (abrogation and abrogated). However, there are two problems that are associated with these traditional Islamic sciences and how they were employed hermeneutically by (neo-)traditional Muslim scholarship. Firstly, in essence they, to a large extent, depend upon the ḥadīth bodies of knowledge, which themselves are based upon certain methodological and epistemological assumptions. Secondly, the way the content of these revelation contextualizing reports and the purposes of abrogation were employed, however, was such that their full interpretational leverage was not fully realized (Rippin, 1988). ¹¹

Hence, the semi-contextualist nature of traditional Qurʾān–Sunna hermeneutics is unable to break the shackles of the Qurʾān’s revelatory historicity in order to free it from the spatio-temporal constraints within which it initially operated. This, in turn, led to the development of traditional Islamic legal theory, which according to Kamali (1996: 9), “fell short of integrating the time space factor into the fabric of its methodology” and thereby mistakenly regarded some customs prevalent at the time of revelation as universally binding for all subsequent generations of Muslims. Semi-contextualist (neo-)traditional Qurʾān–Sunna hermeneutics, thus, gave rise to an inadequate hermeneutical recognition of the socio-cultural “embeddedness” of, especially, socio-legal injunctions in the Qurʾān and ḥadīth and, in turn, yielded an interpretational methodology approach which failed to take into account the actual dialogical nature of Qurʾānic revelation and the intent behind its newly developing worldview. ¹² As noted by Duderija (2013: 59):

When engaging in the process of developing Qurʾānic hermeneutic and Islamic legal theory (uṣūl ul-fiqh) and, generations upon generations of Islamic legal theorists (uṣuliyyūn), jurists (fuqahāʾ) and exegetes (mufassirūn) have primarily concerned themselves with the questions of what the Qurʾān has to say on a particular issue or theme but not what the Qurʾān tacitly assumes to be normative as understood by its direct audience and as evident in the Qurʾan’s content. They did not fully recognize the interpretational implications of the Qurʾānic pre-suppositions present in its discourse, especially in relation to developing a Qurʾānic hermeneutic and Islamic legal theory whose most powerful hermeneutical tool would entail an ethico-religious values and purposive based approach to interpretation of the Qurʾan and Sunna and the purposive nature of Islamic law and its philosophy.

As outlined above in the context of understanding the role of ʿurf in Islamic law, given that the Qurʾān–Sunna worldview existed in an organically symbiotic and delicate dialogical relationship with the prevalent norms and practices of its first community of listeners, its approach to reform was evolutionary rather than revolutionary. Hence, the budding Qurʾān–Sunna worldview did not in toto and a priori reject or abolish many of these socio-cultural practices, including those relating to gender, prevalent at the time of revelation, but attempted to mitigate their adverse effects to the extent deemed possible with the constraints of the immediate context and the mentality of the first community of its recipients (Duderija, 2013).

In addition, in the realm of gender relations and norms, including its legal dimensions, the Qurʾān–Sunna did not aim to, once and for all, lay down detailed and absolutely fixed rules and regulations, but the emphasis was on creating a more just and equitable society. Many contemporary scholars have recognized this nature of the Qurʾān and Sunna as embedded in the nature and the very language and content of these textual sources (Duderija, 2013). This nature of the Qurʾān and Sunna is aptly noted by, for example, Eshkevari who opines that any attempts at making legislation more just must take into account the fact that dominant social realities such as law, including the Divine law, are not written for the purposes of a “hypothetical dream society” and that both the Qurʾān and the Prophet, contrary to traditional Muslim opinion, did not “seek to devise an immutable, idyllic and perfect society” (Eshkevari, 2013: 206).

Hence, in order to hermeneutically incorporate the full interpretational leverage the revelatory context had on the nature of the Qurʾān–Sunna discourse we need to contextualize them comprehensively by recognizing the socio-cultural or ʿurf based embeddedness of the socio-legal elements of the Qurʾān and Sunna for hermeneutical purposes. Duderija (2013: 61) defines “comprehensive contextualization” as follows:

By comprehensive contextualization I mean investigating, in a methodical manner, the role of context in shaping of the very content of the Qurʾān and its worldview. For this to take place we need to recognize the Qur’ān’s orientation towards the assumed operational discourse of its revelational context that manifests itself in the Qurʾānic content and is reflected in the grammatical and syntactical structures employed in the Qurʾān’s language. This Qurʾānically assumed operational discourse must be seen as often reflecting the prevalent religious, cultural, social, political and economic situation of its direct audience, its community of listeners and participants upon which a dialogical nature of the Qurʾān’s discourse is premised.

As a corollary, we need to recognize that neither the Qurʾān nor the Sunna provide a systematic, ahistorical and comprehensive system of universal ethics that can be simply retrieved or discovered but that some principles of universalist ethics/morality can be deduced or derived based upon the Qurʾān’s (and therefore Sunna’s) “comprehensive contextualization” and recognizing that the Islamic law and its philosophy are essentially purposive in nature (Duderija, 2013).

Hence the above-described ʿurf based assumptions regarding the nature of gender: their roles and norms in (neo-)traditional Muslim thought which feature prominently in its Qurʾān–Sunna hermeneutics are to be understood and evaluated against this failure of traditional Islamic legal theory not only to incorporate comprehensive contextualization into their hermeneutical models but to recognize that their own interpretations of the Qurʾān and Sunna in relation to gender roles and norms were strongly shaped by, among other things, the ʿurf based assumptions to which they subscribed. The unproblematic confluence of these ʿurf based gender assumptions with normative Qurʾān–Sunna teachings was further strengthened by other hermeneutical tendencies which feature prominently in traditional Qurʾān–Sunna hermeneutics, which have been discussed by scholars elsewhere (Duderija, 2010; Duderija, 2007). As we noted above, some of these ʿurf based beliefs have entered into ḥadīth literature. With regards to the questions as to how to deal with this ḥadīth based material, we can take recourse not only to a hermeneutic which divorces the concept of Sunna from ḥadīth (Duderija, 2012) but also to other methodological mechanisms that have been developed, such as the idea of “authorial enterprise” and “conscientious pause” as developed by El Fadl (2001: 93). Additionally, by employing the traditional criteria for ḥadīth authenticity, such as the criterion that ḥadīth which are contrary to empirical reality are to be discarded even if found to be “authentic,” for example those pertaining to the supposed ten-(10)-fold superiority of female sexual desire (and modesty) over that of men.

On the other hand, taking hermeneutical recourse to “comprehensive contextualization,” in addition to other hermeneutical mechanisms, opens the door to interpreting the Qurʾān and Sunna through a different set of assumptions and theories regarding gender roles and norms, including the nature of male and female sexuality. By doing so we can break the conceptual links between the concepts women = fitna = ʿird = ghairāt and propose alternative understandings and mechanisms for the same, or simply disregard some as no longer relevant.