Common law Authority
The author in this connection holds that common law can be sometimes authority of legislation and some other times authority of interpretation. In the first part, he considers common law of time of legislator to be the criterion and should be recognised. In the second part, he regards common law of present time to be the basis and should be obtained. Confusing these two will verily entail numerous detriments. Then he shows some samples of these confusions and obscurities "vol.I, pp.4347".
Examples & Stories from the Quran
The author believes that the Quranic examples and stories are a reference for legislation, in cases and areas where no special text "of the Quran" is found. With this view all the Shari'ah can have a reference and source in the Quran "vol.I, pp.3941".
Authority of Signs
The author presents a new opinion on authority of signs, saying that the legal signs and arguments "hujaj", like decisiveness, have inherent authority, needing therefore no legal consideration. The proofs cited in the Shari'ah, which are based on forgery of authority, are guidance to reasonable stanchions, the basis on which he regards the wellknown principle in argumentation of signs to be vulnerable to criticism "vol.I, pp.170178".
Precaution In Fatwa & Behaviour
The author deems the Faqih to be dutybound to issue allowance verdicts in cases of legal permission. For him Fatwa to precaution "ihtiyat" in such cases to be a kind of denial of God's judgement, considering the justification that giving verdict to allowance causes
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leniency in religion, to be something disapproved "vol.I, pp.234239".
Method of Legislation
The holy lawgiver adopts, in legislating significant issues, method of supervision and explicitness. Legislation in a permissible case or in the interim of another issue, is not proportionate with important legal precepts. The author, on this basis, criticises some narrations on woman's incompetence to be in charge of government "vol.II, pp.8485&p. 114".
Jurisdiction of Practical Principles
The author believes that the important issues in the Shari'ah that are founded on a practical principle, can never be neglected, but rather the legislator has manifested the judgement, with all its particulars, in respect of such issues, in a way that it can reach all the Ummah.
These were the considerable foundations to which the author paid attention between the lines of the book, and from which he got a good result. If some points were given attention in this book, the style of writing would have been more precise, logically arranged and explanative. Herewith I refer to some of these points:
1. In the prelude it was proper for the author to dedicate a separate portion for "method of research in woman's affairs." putting other scattered texts on woman's affairs, or authority of common low, or objective of Quranic stories or other principles in the footnote of this part.
2. The subject of woman's gazing at the man contains some obscure points, and the reader cannot recognise explicitly the author's opinion or what he intends to say. For instance when he says: "so much is certain of permission of woman's looking at the man being looking at face, two hands, two feet, two ears
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and neck" "vol.I, p.270", can we understand from this expression that the woman is allowed also to look at the hair of a foreign man or not?... Therefore, in my opinion, this subject "of discourse" needed more explanation, exposition and clarification.
3. Some of the inferences, especially in subject of "woman's competence to undertake governorship" needed more precision. This topic seems to be more explicit in the answers it derives from the narrations "vol.II, pp.8284".
4. In the subjects of the second volume, it seems that the author has overlooked a few of sources like: "Risalah Badi'ah Fi Tafsir Ayat ArRijal Qawwamun 'Ala AnNisa" "A wonderful treatise in interpreting the verse "Men are in charge of Women"", and others.
Al-Mar'ah Fil-Fikr Al-Islami
By Jamaal Mohammed Haqqi Rasool Al-Bajuri
1st edition: General Secretariat for Culture and Youths in Kurdistan, Iraq, 1406H1986" two volumes, 286+255 pages.
This book constituted a part of Master thesis of the author in Baghdad University, of which he defended in 1985. This work is constituted of an introduction and two sections.
In the introduction he reiterates the situation of the woman in the past communities and religions.
In the first section, he discusses the subject of the woman in the Islamic thought, and in the second section, he broaches new questions related to woman.
· The first section has three chapters:
1. Natural characteristics of woman;
2. Woman's rights in the house and society;
3. Woman's duties in the house and society.
· The second section has also three chapters:
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1. Social issues; 2. legal issues; 3. political issues.
Herewith I give a brief account of the two sections.
In chapter one of the first section he considers the intrinsic and natural characteristics of woman to lie in power, capability, and the man's superiority over the woman "the author regards the man to be superior to the woman in faculty of reason and strength of body, and it is surprising that he deems this to be one of woman's intrinsic traits".
In continuation, he considers pudency, deceit, ornament, compassion, and kindness as special morals of the woman.
In chapter two, which is dedicated for rights, he presents a theoretical discussion on baab of rights, talking about humanity of the woman and her equality with the man. In respect of humanity he resorts to some Quranic verses and woman's participation in rulings. In regard of equality he refers to equality in belief and faith, performing good deeds, ownership, marriage, learning and education between the man and woman.
In the meantime, in the continuation of the discussion, he enumerates the differences between woman and man in worships, some of financial duties like alimony, inheritance, and guardianship. He deems qualification to be one of traces of humanity and equality between woman and man, maintaining certain dimensions for it like religious, economical, social and family qualifications.
The other trace he believes to be employment which is permitted in itself but due to social and sentimental irreparable detriments he considers it to be something unnecessary. In regard of choosing the spouse and capability, he considers it as a right for the woman.
In the third chapter, he discusses the duties that to be performed by the woman. The first duty on her part is staying at home. The belief held by him being that the legislation of this precept was on the basis of women's condition, not that this precept was ordained exclusively for the Prophet's wives.
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Of course he recommends retirement at home on the part of woman, for the sake of undertaking housekeeping in the best manner. In the continuation of this issue, he points out the wife's obedience to her husband, which being a result of men's authority over women. The author declares that men's authority "over women" never means their despotism or obstinacy.
The second duty of the wife is hijaab "covering", that is the woman is prescribed to lower her gaze from looking at a foreign man and cover her body with a wide clothing. He says that the necessary limit of covering being veiling all the body except the face and two hands up to the wrist.
The last question in this chapter being polygamy and marrying more than one wife. He presents a short history of this practice among ancient nations, believing that it was so current among advanced nations, being approved and modified by Islam. He then sets forth for discussion the factors leading to legislation of the rule.
The second section is allocated exclusively for introducing new issues, in three fields: social, legal and political.
In chapter one, which is concerning social issues, he refers to issue of education of women which he deems permissible according to some evidences. Then he says that Muslim thinkers have two viewpoints in this connection: a group believing in nonexistence of any difference between women and men in respect of education; and the other group binding themselves with some restrictions and limitations, with whom the author agrees.
The second issue is employment, in connection of which he states three views. A group believing that women's occupation in all fields of life to be permissible or rather necessary. The second group believing in forbiddance of every kind of work and business on the part of the woman, outside the house. The third group, including the author himself, believing that the social conditions require the women to go out the house but stipulating certain provisions
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and limits for this practice. Then he turns to military business for women, saying that fighting is forbidden for women, but all other works related to war being permissible for women, citing evidences from the reporting and practical "Prophet's" Sunnah. He turns then to talk about the right of providing security to women, like men, for disbelievers to be fought, regarding this to be a privilege given by Islam to the woman.
In continuation of this subject, he turns to giving a share to women from war spoils, believing in women's right to take a share, against those believing in forbiddance of such thing.
The third subject set forth for discussion, is the hijaab "veil". The author holds that propounding novel issues on the part of the Western thinkers in connection to issue of hijaab is divided into three parts. A group believing that hijaab means staying in the house and this being a special feature for the Prophet's wives. Generalising this prescription to other women is a sediment from other nations, that the Muslim women are allowed to frequent among crowds with bare hands up to the wrists and uncovered face. This view is held by Qaasim Ameen and other writers.
The other group holds that out of Islamic texts it can be deduced that the Islamic Law permits going to and fro by women outside the house, with uncovered face and hands up to the wrist. The third group believing that the best shelter for women being home and family, and women's going out of the house with uncovered face and bare hand is allowed only in emergent and exigent cases.
In chapter two he sets forth legal issues, initiating the discourse with question of marrying the children by their guardians, considering it, contrary to opinion of the Sunni Fuqaha, to be something inadmissible. Also regarding the question of great difference in age between woman and man in time of marriage, which is done sometimes by coercion on the part of family of the woman, he considers it a rejected habit.
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The second subject of discourse in this chapter being the issue of polygamy, in regard of which he cites three views. Some Fuqaha, like Mohammed Abduh, permit it conditioned to exigency and with the judge's decision, seeing this opinion to exist in laws of so many Arab countries.
Another group considering polygamy to be totally inadmissible, believes that Islam wanted to prevent it step by step. Of course the author believes that polygamy is something allowed in Islam.
The third subject of this chapter being population control, which he set forth for debate in four topics. First he talks about the legal rule of isolation "'azl", admitting the third view of these three: prohibition, allowance and aversion.
The second topic being extermination of offspring. The author says that every act entails extinction of issue is haraam "unlawful". The third topic is control of Nasl "seed", regarding which two views are there: Some deeming the government's action to control of procreation as unlawful, and some others deeming it permissible, and the author holds the first view. The last question in this topic being the abortion, concerning which he cites various verdicts.
The fourth topic of this chapter is the issue of guardianship and testimony on the part of woman. The Fuqaha consider the innate and acquired virtue of men to be the agent of guardianship. He then refutes the doubts that suspect the guardianship of the man, like that related to the period of mastership of men and slavery or related to era of ignorance of women, and the time when the women had no economic earning.
Then he turns to the issue that whether the realm of men's authority is limited to marital life or being vaster than this, regarding which he cites two views, believing in limitation of authority to marital life.
Regarding the question of woman's giving witness, he quotes several statements showing that a group of Fuqaha believing
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that limitation is confined to financial affairs, and other than this the generalities of proofs being a witness in force. Apart from the fact that this pertains to ordinary circumstances, and in exigent cases the women's testimony is approved like that of men, as the witness of people of Scripture "Ahlal-Kitab" is approved.
The fifth topic being custody "hazaanah". The important point in this subject is the fact that custody is regarded mother's right, and in respect of expiry of custody "period" of mother, he prefers the court's decision from among various opinions.
The sixth topic is divorce. In this connection, the author, from the two opinions, whether divorce being the husband's right or that the judicial device should intervene, approves of the first opinion that it is the husband's right seeing no room for interference of a judge.
The seventh topic is inheritance by the wife. He refutes four suspicions raised by critics of woman's inheritance.
Chapter three is allocated for political topics. The first issue set for discussion in this chapter is the issue of women's participation in elections, citing two views of opposers and supporters, with criticising them with evidences. But in the end he accepts permission to women's participation in elections.
In respect of post of minister, he repeats first the meaning of ministry in the past and at present, turning then to cite the views of supporters and opposers with the proofs the both have presented. The author is of the opinion that there should be distinction among the ministries, since some of them agree with woman's affairs and some are not compatible, thus there being two views, the first of which being totally disapproved.
He considers women's being ambassadors among countries to be impermissible, because, in his view, this job necessitates things that are incompatible with a Muslim woman's nature and position.
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Concerning women's judgeship, he quotes three views: a group believing in incompetence of woman for judgeship "being a judge", another group deeming woman's judgeship to be absolutely right, and the author believing judgeship to be permissible on part of women in cases other than punishment limits "hodood" and retaliation "qisaas".
The author regards the woman's undertaking jurisdiction affairs to be forbidden, deeming such work to be unfit and incompatible with woman's duties in the house, her kindness and her mercy. Also he believes that woman's assuming state presidentship to be unfit for woman's conditions.
