Source: Gāmī be pīsh dar fiqh banuvān, by Syed Hādi Tabatabā’ī (http://mobahesat.ir/16349)

When the discussion of women assuming ministerial positions arose during Ahmadinejad’s administration, news of opposition to this by Ayatollah Sāfi Gulpaygāni and Makārim Shirāzī came from Qom. It was fair to say that the maraji’ did not agree with the notion that ladies can take governmental positions. Ayatollah Ishāq Fayyādh, one of the current marāji’ residing in Najaf, in a response to a jurisprudential question on this topic replied with the affirmative, that these positions can indeed be given to women. Ayatollah Fayyādh (b. 1309) is from amongst the marāji’ residing in Najaf and is considered to be amongst the most outstanding students of Ayatollah Kho’ī.

In response to a number of jurisprudential questions in relation to the role of women in society, he declared it permissible for women to take any of the three following positions: political leader, judge and religious jurisconsult. His basis for this ruling from a jurisprudential perspective is that the only time differences in rights and jurisprudence between men and women can be accepted is when there exists clear-cut religious proof to establish this difference. In the absence of any religious proof this subject is then considered within the scope of the Principle of Permissibility^[1] and mantiqatu al-firāgh^[2] and in such instances, these rulings are temporary and have the potential to change in accordance with the situation and conditions of the time and place they are legislated in.

On this basis, it is argued that there exists no legislative nor jurisprudential prohibition from allowing women to take up any of these three positions. In this regards, he says it is obligatory for a lady to cover herself from the opposite gender and to safeguard her own dignity, chastity and modesty at all times, and to keep herself ritually pure. Whenever a Muslim woman upholds these conditions then there is no problem in her taking up positions which do not contradict her obligatory responsibilities. It is irrespective of whether this is a social position like politics or an individual one like being a driver, a pilot etc. With this reasoning he believes that in all spheres of life, be it social, individual, ideological, freedom of expression, business, financial trading, land cultivation etc. women and men are completely equal.^[3]

Ayatollah Fayyādh also considers political leadership permissible for a lady. He mentions this in a response to a question asked on whether it is allowed for a Muslim woman during the time of Occultation while possessing the necessary qualities of knowledge, competency, justice and the ability to implement God’s laws, to assume the role of leadership and ruler of the state. His response to this question is as follows: “The majority of the renowned fuqaha did not believe this position was able to be assumed by a lady. However, (on the contrary to what they have agreed upon), the establishment of this (position of leadership for a lady) is strong as there is no evidence against it except for the claim of consensus (ijma’).”^[4]

He considers the consensus of the fuqahā to be the basis of the opposition and in this regards comments that consensus has no probative force and cannot restrict women from these pivotal functions. In relation to women being judges he chooses a position contrary to what the fuqahā have a consensus on and says: “The majority of fuqahā have taken the position that judging is the prerogative of the Muslim man and does not extend beyond that, and this is such while women have all the necessary requirements for such. This position is a strong one. However, when it comes to general judgement amongst the layman where the authority of the judge is not dependent upon the religious sanction (but rather it is a civil matter), there is no difference between a man and a woman.”^[5]

In line with this reasoning Ayatollah Ishāq also considers it permissible for a lady to be a source of religious emulation (marji’iyat dīnī) and to become a jurist: “The majority of fuqahā have taken the view that it is not allowed for a lady to be a source of religious emulation and be a source of authority in jurisprudence, however, what is more apparent in my opinion is that it is allowed with the condition that they fulfil the relevant criteria for issuing edicts and emulation.”^[6]

In relation to the position of ijtihād for women, Ayatollah Jawādi Amulī has an opinion very similar to Ishāq Fayyādh. He says: “I recall one of the former jurisconsults explicitly and verbally say if such was to happen it would be an insult to the position (of ijtihād).”^[7] In a critique of this Ayatollah Jawādi continues: “This statement is, from one angle, due to not understanding the human essence of a lady, and from another angle it is down to an oppressive understanding of women (perpetuated) by tyrannical regimes as no more than mere instinctive and economical objects. Thirdly, the prevention of women from being able to access and benefit from these lofty, intellectual and textual sciences (has also contributed to this negative attitude). And fourthly the fact that ladies themselves considered it not allowed for themselves to do so, in addition to a number of other well-known and not so well-known reasons.”^[8] Ayatollah Jawādi recognises the neglect women have faced throughout history and the fact that their potential has been indifferently overlooked. In his belief, if attention was given to the lofty aspects of women, then reaching the stage of religious emulation would not have been out of their grasp.

In relation to the issue of being a judge, Ayatollah Jawādi has to some extent attempted to move away from the traditional opinion (of impermissibility), he says: “If a lady reaches the level of ijtihād and was just and all the other traits that are required for a person to be a judge, in the opinion of the renowned Muqaddis Ardabīlī there is no problem in ladies being judges, unless someone is able to affirm an absolute and certain consensus (ijmā’ qat’ī) in which case it would not be allowed, or if allowing women to be judges would result in ethical issues in society.”^[9] Ayatollah Jawādi doesn’t see any restrictions on ladies assuming the role of judges, however, he states that if a consensus was to be found against this then the idea is no longer valid.

Mohammad Sorῡsh Mahallātī in his research conducted in this area has concluded that there is no consensus of the fuqahā against a lady becoming a judge. He says: “How is it possible to claim consensus on this issue when this topic isn’t even mentioned in the works of the early fuqahā, and renowned scholars such as Shaykh Sadῡq, Shaykh Mufīd, Syed Murtadhā and Abu Salāh Halabī haven’t even discussed this issue in their works, even though the topic of judging and the criteria of being a judge is mentioned in many of their works. On top of this, how can there be a consensus explicitly supported by all Shi’ī scholars that being male is a condition for being a judge when Shaykh Tῡsi in his work al-Khilāf makes no mention of any consensus on this matter. Isn’t the methodology of Shaykh Tῡsī in his book to cite consensus right after quoting the traditions, while he makes no mention of consensus on this matter. In addition to this, in the introduction to his book, he mentions how he will specifically point out any differences or consensus on the various rulings. With all these alibies, the lack of mentioning of any consensus on this issue in al-Khilaf leads us to believe the absence of such a consensus in the opinion of Shaykh Tῡsī.”^[10] Sorῡsh Mohalātī has attempted to find the source of the consensus during the time of Shaykh Tῡsi and Shaykh Sadῡq, yet what comes to mind is that when it comes to women taking up roles as judges and jurisconsults, contemporary scholars have all chosen similar positions to one another and in this manner a type of consensus has appeared.

Ayatollah Ishāq Fayyādh has also tried to discuss a number of verses and traditions which have been used to defend the prohibition of women in assuming these roles. In relation to the verse in the Qur’ān: “Men are in charge of women”^[11] he explains the following: “The superiority of man over women is limited to the family life, meaning when it comes to the family affairs men are considered to be the guardians (of women). However, when it comes to social life there is no difference between man and woman.”^[12] Ishāq Fayyādh, by separating family life from general aspects of life, considers this verse restricted to the personal and family life and does not extend it to the social sphere.

Furthermore, Ayatollah Fayyādh in response to questions about the traditions which speak of women being deficient in intellect and religion says the following: “These traditions are not reliable and attributing them to the Prophet is not correct. In addition, these traditions cannot be supported or verified as they go against what has been observed and is essentially true. As it is clear and tangible that the intellect of women, in whichever field of society they have applied themselves, is no less than that of man’s. From the Qur’ān and the traditions it can be seen that this difference does not exist.”^[13] However this opinion has its opponents, for example, Allāmah Tabatabā’ī, by stressing that ladies have deficient intellects and stronger emotions and men have stronger intellects and weaker emotions, believes that on this basis only men are suitable to roles in society and leadership.^[14]

However, by accepting the permissibility of women being judges, jurisconsults and political leaders, Ayatollah Ishāq Fayyādh has put forth an opinion capable of taking a step forward and perhaps it may become the most popular opinion amongst the scholars one day.

Footnotes

[1] The Principle of Permissibility (Asālat al-Ibāha) is a principle unanimously agreed upon within ‘Ilm al-Usῡl that stipulates that everything is permissible unless a clear prohibition has been made.

[2] Mantiqatu al-Firāgh is a theory put forward by Shahīd Bāqir Sadr (d. 1980) in his work Iqtisādunā which stipulates that there are certain areas of life where there are no specific definitive legal rulings available. In such circumstances, it is the responsibility of the ruler to legislate the ruling.

[3] Jāyegāh Zan dar Nizām Siyāsīyeh Islām by Ayatollah Ishāq Fayyādh, p. 80

[4] ibid, p. 24 – 25

[5] ibid, p. 29

[6] ibid, p. 81

[7] Zan dar Ayaneh Jalāl wa Jamāl by Ayatollah Jawādi Amulī, p. 354

[8] ibid

[9] ibid, p. 353

[10] Dar amadī bar barrasī qazāvat, by Ayatollah Sorῡsh Mohalāti

[11] Qur’ān, 4:34

[12] Jāyegāh Zan dar Nizām Siyāsīyeh Islām by Ayatollah Ishāq Fayyādh, p. 56

[13] ibid, p. 58

[14] Tarjumeh al-Mīzān by Allāmah Tabatabā’ī, v. 4, p. 548