ABSTRACT
Ibn Rushd and al-Rajrājī claim there is consensus on the prohibition of a woman aspiring to the office of head of state. However, their focus in doing so is elsewhere. Al-Rajrājī asserts it as a basis for a qiyās to argue that women cannot lead men in prayer, while Ibn Rushd asserts it as the basis for a qiyās prohibiting women from assuming judicial authority. One thing that deserves attention is alRajrājī’s referring the prohibition of political leadership not only to the ḥadīth of Abū Bakrah, but also to the arguments he has just presented about prayer leadership, namely that it is ‘a degree of honour and a lofty station’ requiring someone who, unlike a woman, is ‘complete in religion and in essence’. The arguments presented for judicial authority are applicable by implication to political authority. Ibn Rushd, interestingly, does not cite the ḥadīth of Abū Bakrah anywhere in his discussion. His is the only Mālikī work in the survey that cites textual evidence which refrains from citing it. He merely cites two instances of qiyās, the aforementioned one on political authority and a second one on the situation of a slave. Al-Rajrājī cites the ḥadīth of Abū Bakrah as his primary evidence for prohibiting a woman from being a judge. He also quotes al-Qāḍī Abū al-Walīd’s statement that it is ‘enough’ for him that a woman being appointed as a judge never occurred in the era of the Prophet or in any subsequent era. That this would be considered sufficient evidence in and of itself shows how important the Muslims’
general practice is for the Mālikī school, even when consensus is not being suggested, not even a Madinite consensus, since all we have here is the absence of an action, not a clear, agreed-upon course of action. Al-Qarāfī cites the ḥadīth of Abū Bakrah as his chief evidence. He then argues two instances of qiyās on the basis of prayer leadership and an analogy on political leadership. The problematic nature of these analogies has already been discussed, and it appears that al-Qarāfī is seeking to test the range of evidence that can be brought to bear on the issue, even if such evidence is not very convincing. He also echoes al-Qāḍī Abū al-Walīd by invoking the lack of historical examples of female judges, even suggesting a kind of ijmāʿ on the basis that a female judge is ‘contrary to the way of the believers’. We can be certain that he does not mean a binding consensus upon the Muslims on this issue, since he explicitly brings this argument up to argue against al-Ṭabarī and the position of the Ḥanafī school of thought. What it does mean, however, is that al-Qarāfī considers this to be a compelling enough argument for the Mālikī school. Existing practice is paramount, even outside the formal parameters of Madinite practice. In essence, he is saying that whatever aspects of Muslim community life women have not traditionally been engaged in are things they should never be engaged in. The later works in the Mālikī school do not focus on evidence, though the ḥadīth of Abū Bakrah is cited by ʿUlaysh (d. 1289/1882) in Minaḥ al-Jalīl. The discussions in these later works are typically limited to stating and clarifying the school’s rulings. However, they do provide valuable insights. For instance, Khalīl’s Mukhtaṣar is explicit in uniting the questions of political and judicial leadership, listing a single set of conditions for both and adding Qurayshī lineage as an additional condition for the head of state. This shows that later Mālikī jurists regarded the two questions as entailing nearly identical considerations of authority and applied the same ruling to them both directly without recourse to qiyās. Al-Ḥaṭṭāb (d. 954/1547) mentions in Mawāhib al-Jalīl that Ibn al-Qāsim permitted women to serve as judges, possibly like al-Ṭabarī without restriction. This is quite significant. The view of one of Mālik’s foremost students and one of the school’s mujtahid imāms shows that the early Mālikī school could accommodate such a ruling and that its prohibition by the school was neither inevitable nor merely the product of legal inertia.
