Conclusion

Three possible factors were identified to explain the presence and persistence of rulings in the Islamic legal corpus prohibiting women from assuming various leadership roles: scriptural considerations, gender attitudes and legal inertia. The three preceding chapters have tested each of these possibilities in turn. A legalhermeneutical analysis was used to test the first factor; an analysis of gender motifs was used to test the second; and a diachronic analysis was used to test the third. The legal-hermeneutical analysis revealed that scriptural sources, or adherence to certain hermeneutical and juristic principles in combination with those sources, do not satisfactorily account for the rulings. This applies equally to those principles elaborated in the legal theory works and those which are on display in the legal texts themselves. This means that other determinative factors were at work which were far more important. The analysis of gender motifs found that the legal literature exhibits numerous negative attitudes and beliefs about the nature and status of women and their role in society. Gender attitudes played a major part in the development of the laws. These attitudes and perceptions about gender are evident in the legal literature of all four schools of law across the geographical and temporal scope of the survey. Moreover, they appear in various ways: as direct justifications for the rulings, as implicit components of larger arguments, as opinions volunteered independently of legal considerations and even as concepts upheld where the jurist denies their relevance to the legal point in question. This rules out the possibility that these attitudes and values were merely recruited to defend the legal rulings. The persistence of these attitudes and values in the legal literature, in the absence of convincing justifications from the scriptural sources and juristic principles, makes them a prime candidate to explain the origins and persistence of the legal rulings. It is clear that these gender values are the primary factor for a number of reasons. One, they are powerfully evident in the legal literature. Two, many cases of analogy depend upon their implicit acceptance. Three, even when a jurist does not consider a certain negative idea about women to be the justification for the ruling, the idea is never challenged. It is always conceded as true and then shown to be irrelevant to the ruling. This is best explained by what Sa`diyya

Shaikh describes as ‘specific understandings of gender relationships assumed by dominating discourses in the fiqh canon’ operating in the development and persistence of the rulings.1 Finally, the diachronic analysis revealed that legal inertia played an important but limited role in the development and persistence of the rulings, but was ultimately not a decisive factor. On the one hand, the variety and changing nature of formal legal arguments, both within and among the four schools of thought, even when the rulings themselves remained constant, indicates that defending preferred rulings was a very strong incentive for citing evidence and developing arguments, rather than the evidence and formal arguments determining the rulings or accurately representing the reasons behind them. At the same time, the fact that many rulings did change over time, and alternatives were often available in each school of thought to the rulings which were ultimately adopted, shows that there was a limited willingness of the jurists to depart from the past. Some rulings favouring women’s leadership were either present at an early stage or were introduced by jurists later on. Likewise, rulings which further disfavoured women’s leadership were introduced at a later stage. In all cases, the ultimate trajectory was against women holding leadership positions. This strengthens the conclusion that perceptions about women were a primary factor in determining the rulings, since they proved to be a stronger factor than the desire to preserve the established rulings of the school. These trajectories took a long time to unfold, in spite of negative attitudes towards women being relatively constant throughout the period under study, and this shows a genuine motivation to preserve the school’s inherited rulings, but this motivation was not strong enough to keep relatively positive rulings on women’s leadership from ultimately being overturned or undermined. Of course, legal inertia is not suggested to explain, on its own, the origins of the legal rulings, since it merely explains the tenacity of rulings after they have been adopted. The other two factors, legal evidence and social attitudes, are the ones that can possibly explain the origins. Nevertheless, by observing how legal inertia acts under the pressure of the other two factors over time, with respect to multiple instances in all four schools of law, and by discerning general patterns, a lot can be determined about which of those two factors was more important in the development and possible origins of the laws. The cases where there were competing rulings in the school from the start are important, because legal inertia does not come into play. Both rulings are possibilities that could be adopted and made the official ruling of the school. The pattern that emerges is that when there are competing rulings, the one that is least favourable to women’s leadership is adopted without exception, and without regards to the strength of the legal evidence and arguments. This indicates that early on, negative attitudes about women played a more decisive role than textual evidence or considerations of legal theory. This same pattern is played out again in the rulings that are affected by legal inertia. Pressure to change certain rulings came from both factors, from textual evidence and legal arguments on the one hand, and from social attitudes about

women on the other. The pressure exerted by legal evidence was never strong enough to prevail against legal inertia, despite the strength of some of those arguments in and of themselves and regardless of how valiantly those changes were championed by their advocates. On the other hand, social attitudes about women always prevailed in changing rulings to make them less favourable towards women’s leadership. Legal inertia only postponed those changes for longer than they might otherwise have taken. Therefore, legal inertia serves to highlight the relative strength of the two factors which have the potential to explain the origin of the rulings. In this way, instead of obscuring the possible origins of the rulings, it provides additional clues that help to reveal them. When the three studies are taken together, a clearer picture emerges about the origins of the legal rulings concerning women’s leadership, which is that textual and theoretical legal considerations could not have been an important factor in determining them, while social attitudes about women definitely were. This is clear from the lack of compelling legal arguments for the rulings, as demonstrated in Chapter 1, the preponderance of direct negative arguments about women which are consistently invoked and assumed, as discussed in Chapter 2, and the invariable tendency for rulings about women’s leadership to become more restrictive over time, as seen in Chapter 3.