Beyond the Binary

Front matter

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Introduction

1. Gendering the Legal Subject: Masculinity and Femininity in Legal Discourse

2. Gender and the Construction of Enslaved Subjects 3. Age and Gendered Legal Personhood

Notes Bibliography Index

115 147 157

ACKNOWLEDGMENTS

I tell students that writing and scholarship constitute a communal exercise, a fact made invisible by the single author’s name on a monograph. Similarly, this book has been made possible by a large community of people. It has been many years in the making and has only become a reality through their endless support for which Iam deeply grateful.

Id like to recognize my deep gratitude to my teachers and mentors over the years. To Ebrahim Moosa for his guidance and mentorship over the years. His dedication to his students, even past their graduate study, is an inspiring model. My deepest gratitude goes to Juliane Hammer for her love, support, and mentorship over the years. I will always be indebted to her for instilling in me the confidence and belief in my scholarly potential. She has also been a model for me in navigating the demands and conventions of the academy with a strong sense of ethics and commitment to anti-oppression work. I have also been tremendously fortunate to have Kecia Ali as my mentor. Her sharp and critical eye, coupled with incredible intellectual humility, are truly an inspiration and aspiration. This book would not have been possible without the tutelage and encyclopedic knowledge of Shaikh Salah Abū al-Hajj. I am truly grateful and honored that he took me on as a student.

I would like to express appreciation for my colleagues at the Department of Religion at Williams College: Jacqueline Hidalgo, Jeffrey Israel, Jason Storm, Denise Buell, Georges Dreyfus, Neil Roberts, Rhon Manigault-Bryant, James Manigault- Bryant, and Edan Dekel. They read early chapter drafts as I was beginning to conceptualize the book and their engagement with my work has truly broadened my intellectual horizons. I am particularly grateful to Jacqueline Hidalgo, VaNatta

X ACKNOWLEDGMENTS

Ford, James Manigault-Bryant, Meredith Coleman-Tobias, and Julia Kowlaski for introducing me to conversations that became the theoretical framework for this project. This book would not have been possible had it not been for my conversations with them over the years.

I would also like to acknowledge the Muslim feminist scholars whose scholarship has not only shaped my own intellectual development but has also been a source of spiritual and emotional sustenance. amina wadud was my very first teacher and mentor. Her scholarship and intellectual and emotional mentorship has truly been a blessing in my life. Kecia Ali, Juliane Hammer, Riffat Hassan, Azizah al-Hibri, Asma Barlas, Asifa Quraishi-Landes, Laury Silvers, Fatima Seedat, Hina Azam, Aysha Hidayatullah, Ayesha Chaudhry, and Zahra Ayubi; this book could not have been conceptualized without their scholarship. I am especially grateful to Fatima Seedat for her love, friendship, and intellectual companionship over the years.

My thinking on the book project has developed through conversations with a number of different colleagues. I cannot name them all but I am very grateful for their role in making this book possible. A special thanks goes to Kecia Ali, Juliane Hammer, Aysha Hidayatullah, Marion Katz, Sohaira Siddiqui, Mariam Sheibani, and Sohaib Khan for their invaluable feedback on drafts of book chapters. To Atiya Hussain for her sharp theoretical insights that have always pushed me to think beyond my intellectual constraints. To Ali Mian, SherAli Tareen, and Sam Kigar for their intellectual companionship throughout graduate school and beyond.

I would also like to thank those who invited me to present my work at conferences and workshops. There are too many to name but I extend a special thanks to Ebrahim Moosa, Omar Anchassi, Robert Gleave, Jonathan Brown, and Ellen McLarney. I am very much a verbal thinker and I develop my ideas through conversations. The opportunity to present my work in these settings was critical in shaping the argument of the book. I would also like to express tremendous gratitude to Peter Mandaville and the AbuSulayman Center for Global Islamic Studies at George Mason University for supporting this book project through a research fellow affiliation. Much of this book was written when I was on sabbatical during the COVID lockdown, when I had no access to an academic library. Their support made possible access to academic resources without which this book could not have been completed. I’m also grateful to the Hellman Foundation for their financial support for the book project.

Td also like to thank Eric Schmidt and the staff at the University of California Press for all their work in helping publish this book. I am particularly grateful to Eric for his support, advocacy, and limitless patience throughout this process. This book was written during the COVID lockdown and through a time when I was dealing with a number of health issues; I was deeply touched by Eric’s generosity and understanding during this time.

And lastly, no amount of thanks is sufficient for the love, support, and sacrifice of my family. My mother has been the pillar in my life and my inspiration, her

ACKNOWLEDGMENTS xi support and encouragement are unending. I would not be where I am without her presence in my life. I am also infinitely indebted to her for the time she spent taking care of my daughter during the lockdown when we had no childcare. It is no exaggeration to say that there would be no book without her endless support. To my brother Saad for all his love and support and for graciously humoring his niece with stories so I could get some extra writing time. To my sister, Saima, for her love and support and instant willingness to help whenever I needed it. To my khalas Ambreen and Tanveer for all their love and encouragement and my khalu Yaqub Mirza for ceaseless care, love and encouragement. To Habiba Mohamed (Aye Habiba) for her love and generosity in taking care of my daughter so I could finish up the book manuscript. Again, this book would have not materialized were it not for her support.

And lastly, words cannot describe how grateful I am to have been blessed with Zaid in my life. His constant words of encouragement and belief in me is what got me through the inevitable rough patches of writing. His self-sacrifice and willingness to support me in every way imaginable has been one of the biggest blessings in my life. To my daughter, Ruqaiya, who patiently sacrificed Amma-Ruqaiya time so that I could finish up this book. The many books she wrote in the time it took me to write just this one provided a model and an inspiration for me in selfconfidence. And finally and most importantly, hadha min fadli rabbi.

Introduction

When I was growing up, I often heard the story of my great-grandmother, Hamida Begum, and her life of veiling and seclusion. My great-uncle, Akhtar Hameed Khan, a prolific author, poet, and social scientist, writes about his mother extensively in his book Komila se Aurangi Tak (From Komila to Aurangi).' He describes his mother as a kindhearted and self-sacrificing person. She was also an avid reader who was deeply attached to books and invested in the intellectual conversations of her time. She was familiar with the works of leading Muslim Indian intellectuals of her time, people like Muhammad Iqbal, Shibli Nomani, Abdul Halim Sharar, Muhammad Ali Jauhar, and Abul Kalam Azad.’ Family lore has it that because she was well-educated in English, she often composed and edited her husband’s administrative letters and memos. Her husband, a police inspector, often practiced his English with her so that she might correct his pronunciation.

She was married at a young age (fourteen) and, like many other Muslim Indian brides in the early twentieth century, she received a copy of the Qur’an and Bihishti Zewar (Heavenly ornaments) in her dowry.’ Bihishti Zewar, authored by the eminent South Asian scholar Maulana Ashraf Ali Thanvi, is one of the most influential and widely read Islamic texts in South Asia. Written to impart religious education to Muslim women, it focuses on a wide range of issues—from teaching reading, to the etiquette of letter writing, to basic Islamic legal rulings on rituals and ritual purity. The book also discusses legal rulings pertaining to marriage and divorce and explicitly endorses a social hierarchy in which the wife maintains a subordinate role in relation to the husband. My great-uncle explains that his mother was very earnest and sincere in living out the teachings of this book and devoted herself entirely to serving her husband and caring for her children.‘

Like many other Muslim women from middle-class families in Northern India, she also practiced seclusion and refrained from going out in public. On the occasion that she did, she would not only cover her entire body and face but also travel in a covered palanquin or horse cart.* My great-uncle recounts that as a child, he struggled to understand his mother’s seclusion. He felt his mother’s practice of seclusion rendered her dependent, because her mobility restrictions made her incapable of doing anything on her own. She could neither go out to the market to purchase things she needed nor travel on her own without a male family escort. Her son's perception of her as dependent was perhaps a sign of social changes well under way in the late nineteenth and early twentieth centuries that made a life of seclusion increasingly difficult. Subsequent generations of women in the family no longer practiced seclusion and went out in public without covering and did not cover their faces or their heads. For my great-grandmother, however, her covering and mobility restrictions were not a sign of dependency but instead of high social status. As a woman from a family of high status (shurfa), she had the right not to toil in public and to be provided for financially. You can see the difference in perception of mother and son in a conversation that my great-uncle recounts in his book. He writes that when the family moved to Meerut in 1920, they were neighbors with a Muslim family of cowherders. The women of this family appeared uncovered in public and, for my great-uncle, this was a striking difference from his mother’s practice of seclusion. He saw these women as freer because they worked alongside the men of their families, bought and sold in the market, and interacted with men to whom they were not related. His mother clearly saw the lives of these women not as freedom but instead as a disadvantage. When he inquired why they could be out in public but his mother could not, she explained that seclusion was the practice of women of a high social status: “my mother used to tell me that these [uncovered women] are women of low birth [choti zat] whereas we are people of noble and high birth [unchay aur sharif log].”°

This family story powerfully demonstrates the layers of complexity built into social hierarchies. The ways that class and gender intersect in it remind us that women, both historically and around the world, are not united in a shared oppression. My great-grandmother’s life of seclusion, a sign of her class status, necessitated the existence of other women who had to emerge in public and perform the labor that secluded women could not do. Seclusion had its own disadvantages, of course. The inability to go out in public frequently or to travel without an escort meant that elite women had to rely on others to fulfill their needs. Tying seclusion to elite status, however, meant that elite women could become invested in their own confinement. I was reminded of this exchange between my great-uncle and his mother as I began studying Islamic law. When I first came across the legal rulings around veiling and mobility restrictions on Muslim women, I was struck by the distinctions made between free and enslaved women. Whereas Muslim jurists insisted that free elite women must cover their entire bodies, remain in seclusion, and not interact with men outside their family, they simultaneously insisted that enslaved women could not cover like free women and their mobility could not be restricted. An enslaved person’s primary role was to labor at the command of their enslavers. To restrict the enslaved woman’s mobility by requiring veiling as well as seclusion would impinge on the enslaver’s rights.

As I read these discussions, the picture drawn of my great-grandmother’s life became a window into a world where there was no assumption that legal rulings need apply universally to people because of a shared identity or biology. My greatgrandmother’s words made clear that veiling and seclusion were practices not of all women but of particular women. Her assertion was not just a reflection of the social hierarchies of her time but was also borne out in Islamic legal discussions. The distinctions between different categories of women in Islamic law were not confined to matters of mobility and veiling alone. These distinctions can be found in other aspects of the law as well. Free adult women had to consent to a marriage, but a free child or an enslaved woman could be coerced. Similarly, the free adult wife could petition for a divorce, a right that was not granted to a free wife who was a minor until she reached legal majority or an enslaved wife until she was emancipated. As I moved from one aspect of the law to the other, those distinctions based on gender, age, enslavement, social status, religion, and so on appeared everywhere. This observation led me to the realization that gender is neither the sole nor the primary factor in determining an individual's legal status in Islamic law. In fact, neither “man” nor “woman” are functional categories in Islamic law. That is, if we seek to understand what factors shape an individual’s legal status and subsequently their ability to claim rights and obligations, we cannot rely on a simple assessment of men as privileged and women as disadvantaged. This malefemale binary fails to capture the complexity of how power and status function in legal discourse. This has implications not only for how we understand Islamic law historically, but it also challenges us in the contemporary moment to move beyond a simple gender binary (or other fixed and predetermined categories) in our assessments of power, privilege, and oppression.

The question of women’s status in Islamic law has been a burning issue in modern Muslim discourse. From academic to confessional Muslim literature, the arguments about women’s status has ranged from proclaiming the progressive nature of Islamic law to a critique of its patriarchal nature and the need for reform. Many modern Muslim thinkers have argued for the progressive aspects of Islamic law and its affirmation of women’s rights, particularly in relation to Christianity and Western law. These thinkers largely claim that Islam has already granted women rights such as property ownership and political standing, rights that have only recently been instituted by Western nations. In accounting for gender-differentiated rulings, they argue that these differences reflect a complimentary relation between men and women that is divinely ordained and necessary to maintain social order and harmony.’ The other argument regarding women’s status in

Islamic law is perhaps best articulated by the scholar of Islam and gender, Leila Ahmed. In her highly influential book Women and Gender in Islam: Historical Roots of a Modern Debate, Ahmed argues that Islam continued and reinforced an increasingly patriarchal shift that was already under way owing to the Greek, Roman, and Christian periods that preceded Islam.’ Ahmed’s historical account insisted on a tension between an egalitarian impulse in Islam and the developing orthodoxy that was not only hierarchical but also decidedly patriarchal. For Ahmed, the status and autonomy of women were increasingly restricted as Islamic law developed and matured as a legal tradition:

Orthodox Islam, on the contrary, gave paramountcy, as it elaborated its understanding of Islam into laws, to the practices and regulations Islam had enunciated, paying little heed in elaborating laws regarding women to the religion's ethical teachings, particularly its emphasis on the spiritual equality of women and men and its injunctions to treat women fairly. As a result, the religion’s emphasis on equality and the equal justice to which women were entitled has left little trace on the law as developed in the Abbasid age.”

Other scholars of gender and Islamic law turned to the positive legal tradition (furu’), where jurists engaged in the construction of legal rulings rather than abstract theoretical and methodological conversations, with an eye toward its gender assumptions. In doing so, they nuance Ahmed’s historical narrative by interrogating women's legal status and its implications for how jurists developed rulings and institutions.” These scholars have explored the juristic assumptions as well as the historical context that informed the law. In interrogating the legal construction of marriage and divorce, Kecia Ali notes the relation between gender and slavery as categories of legal disability in Islamic law." These two categories, she argues, were not independent of one another, as marriage and enslavement were deeply connected in the juristic imagination about human relationships. Both enslaved people and women “were overlapping categories of legally inferior persons constructed against one another and in relation to one another—sometimes identified, sometimes distinguished”! Despite the interconnectedness of these two categories, Ali argues that only gender is a permanent and enduring impairment to legal subjecthood in Islamic law, whereas other impediments, such as enslavement and legal insanity, are temporary in nature.” Like Ali, Baber Johansen also recognizes the multiple social hierarchies that functioned in shaping an individual’s agency in social exchange (i.e., the exchange of noncommodities for goods or monetary values, typified by marriage). Speaking of the distinction between commercial (exchange of commodity for commodity) and social exchange, Johansen argues that while commercial exchange was accessible to all who were deemed to have rational capacity, an individual's admission into social exchange depended on their (or their family’s) location within five social hierarchies: religion, gender, kinship, generation, and freedom versus enslavement. While noting these different hierarchies,

Johansen also makes an argument similar to Ali’s—namely, that gender stood out as a permanent impediment: “the importance of the gender criterion outweighs that of the difference between free male persons and male slaves.”!*

In her study of women and family in Islamic law, Judith Tucker argues that woman as legal subject is a matter of “doctrinal tension.” While women’s agency in economic matters was largely similar to that of men, in other aspects of the law they were more constrained. She concludes that men’s and women’s legal status shifted depending on the area of the law. Thus, while women could be independent property owners, as a member of a family a woman was hampered in her agency by the interests of the family and a patriarchal society. This is particularly evident in the diminished legal agency of the woman in matters pertaining to marriage and divorce. Thus, while a woman may contract sales on her own behalf, she does not possess the unrestricted right to contract a marriage or a unilateral right to divorce.'* Depending on the legal arena, Tucker argues, the tension between the full and impaired legal agency of the woman was resolved by allowing the interests of a patriarchal society to supersede:

Woman as family member (whose marriage will affect her male relatives and therefore must be vetted by them) and Woman as part of patriarchal society (whose behavior must be policed and restricted, thereby limiting her knowledge of and activity in the public sphere) trump the Woman as equal legal subject.”

These different studies have given us critical insight into gender-differentiated rulings in Islamic law and the tension between gender and other social identities. Yet these scholars have not fully explored the impact these intersecting identities had on gender as a determining factor in women’s legal agency in Islamic law. The resultant effect has been a stability of the category “woman” in historical studies of Islamic law, even if differences between women are recognized. As Marion Katz has argued, while gender has a central role in juristic thought, “gender and its attendant legal implications are deeply modulated by reference to other markers of personal and social status.” In early Islamic legal discourse, she argues, “woman” was not a homogenous category but was mediated by other factors. Jurists thus assumed that women of different ages and statuses would take on different legal rulings rather than a consistent ruling by virtue of them being women.”

In order to more fully investigate the relationship between the law and women as recipients of the law, I attempt to elucidate the archeology of juristic assumptions regarding personhood, the legal subject, and male and female natures.” This book contributes to this ongoing scholarly conversation by offering a theorization of how the legal status of individuals was developed at the intersection of different social identities, and what that tells us about gender as a reliable indicator of individuals’ legal status. Intersectionality has been a critical framework for thinking about the ways in which these identities shape legal status. In theorizing how gender and other social hierarchies intersect in shaping the individuals’ legal status, I also offer a theorization of legal personhood in early Hanafi discourse.

GENDER AND LEGAL PERSONHOOD IN EARLY HANAFI LAW

This book makes a simple but bold claim that neither “woman” nor “man” are legal persons in early Hanafi law. An individual's legal capacity instead depended on a number of social identities, of which gender was just one. These identities included age, enslavement, religion, lineage, and social status, among many others. I focus on three in particular here: gender, enslavement, and age. Concentrating on this particular set of social identities allows me to carefully trace the way they intersected in impacting legal personhood. I argue that legal personhood in early Hanafi law is intersectional and relational, making gender both an unstable category and an unreliable predictor in determining an individual's legal status. My theorization of legal personhood in early Hanafi law gives us a picture of the complex social hierarchy that populated the legal world. Many social identities simultaneously constructed an individual’s status as a subject of the law and impacted their legal rights and agency.

In order to understand the construction of legal personhood, I engage in a close reading of a number of case studies that pertain to gender-differentiated legal rulings. These case studies come from varied aspects of the law and cover a number of different legal topics, including sexual intercourse, same-sex sexual intercourse, marriage of children and enslaved people, and bodily covering and gendered prayer postures. Such an approach allows me to trace how gendered legal subjects were formed and reformed within each case and also to demonstrate the intersectional and relational nature of legal personhood. This permits me to reveal the inconsistencies in the law’s stated goal regarding gendered norms and the instability and incoherence of the gendered legal subject.

In reading these case studies comparatively within one legal school rather than across different legal schools, I found that gender functioned at different registers in legal texts. At times, Hanafi jurists articulated what appears to be an essentialist notion of masculinity as active and femininity as passive. This normative construction of gender, however, did not entail that gender identification determined an individual's legal personhood. On the one hand, there are stated beliefs about the gendered dispositions of men and women; on the other hand, there is the impact on these gender assumptions when they intersect with different social identities. Noticing the multiple ways in which gender was articulated and functioned in legal thought, I decided to put these case studies in conversation with one another. The case-studies approach not only demonstrates how normative constructions of gender functioned in legal reasoning but also throws into relief the dissonances and ruptures in these stated conceptions of gender. The gendered narrative shifted as gendered subjects were reformulated in individual case studies.

The book makes three main arguments regarding gender and legal personhood in early Hanafi law. The first is that legal personhood was constructed at the intersection of a number of social identities rather than gender alone. Comparing the different case studies shows that some legal persons in early Hanafi law were unable to fully inhabit gendered norms. Enslaved men and male minors, for example, could not occupy the autonomy or social dominance that was a critical element of masculinity. Similarly, while the free woman, the enslaved woman, and the female minor were all characterized by passivity, the free woman possessed greater autonomy and legal agency than other female subjects as well as enslaved men and male minors. In noting the inability of different male and female legal persons to occupy the normative constructions of masculinity and femininity, we can see that these gender constructions serve a hermeneutical role in justifying particular legal rulings but do not map onto the law’s designation of sexed bodies. Thus, focusing on gender as the sole determiner of individuals’ legal status in Hanafi law would give us an incomplete picture of the complexity of legal personhood.

The second argument of the book is that legal personhood is relational. The legal person of early Hanafi law was neither abstracted nor singular; that is to say, there was no single, abstracted, universal person that the law assumed as its subject. There were instead a multiplicity of legal persons who acquired their status at the intersection of their different social identities. Legal personhood, then, was not defined by the gender identity of the individual but instead by their relations; that is, the rights and obligations that pertain to the legal person were tied to the social relations in which the individual was embedded. For Hanafi jurists, legal persons did not exist outside their social relations. The individual in Islamic law is a fundamentally social being. The relational nature of legal personhood meant that an individual’s legal agency was fluid and constantly shifting. Thus, an individual acquired different legal rights and obligations or exercised different legal agency depending on different aspects of the law—from commercial to criminal or familial aspects of the law. An individual’s legal status also shifted depending on their relation to other individuals. As a minor child moved into adulthood or a free adult woman became a free wife, their legal personhood was reconstructed, either increasing or decreasing their legal agency. The focus on relations also allows us to see that a particular individual could occupy multiple constructions of legal personhood owing to their multiple relations. A free wife did not carry her legal impediment owing to her status as a wife in all aspects of the law. As an enslaver, for example, she could exercise power and dominion over other individuals despite herself being subject to her husband’s dominion. Similarly, an enslaved man acquired dominion (albeit a limited one) over his wife once he became a husband, despite his status as an enslaved person. The relational nature of legal personhood meant that individuals did not have a singular construction of legal personhood that followed them throughout the law. Depending on their particular relations, as well as the particular aspect of the law, individuals could exercise different modes of legal agency.

Given the intersectional and relational nature of legal personhood, the third argument of this book takes on the utility of gender as a category of analysis in the study of premodern Islam. The juristic discussions around gendered legal rulings reveal that gender was neither the sole nor the primary determiner of an individual’s legal personhood. The normative construction of gender along the active/passive binary was also not an overarching logic of the law. Normative gender emerged at particular moments to justify a ruling that established the school’s legal precedent. However, at other times this normative gender construction was set aside, or even overturned, when it intersected with other social identities or conflicted with particular juristic concerns. These observations point to the instability of gender as a determiner of legal status, as well as its instability as a signifier. Gender did not carry a fixed meaning as a legal incapacity; that is, being a female legal subject did not mean all females carried the same impairments to their legal capacity owing to their shared gender identity or sexed body. The instability of gender as a signifier also meant that gender did not have a fixed legal capacity when it intersected with other social identities. Instead, we will see that each social identity—gender, freedom/enslavement, and age—took on particular signification at their intersections. As Ash Geissinger has argued in relation to the Quranic exegetical tradition, there was no singular gender script but instead a multitude of gender constructions that Muslim exegetes drew on.” Fatima Seedat has similarly argued that femininity as a signifier in legal discourse is inconsistent. It is instead a “mobile concept that seldom coincides in all respects with any singular physical woman.’ These observations demonstrate that gender in early Hanafi law was not tied to some juristic idea of biological sex. Rather than demonstrating a binary of male and female subjects, early Hanafi law was populated by a diversity of gendered subjects who took on a number of legal roles.

MAPPING GENDER AND SEX IN EARLY HANAFI LAW

A primary concern of this book is an investigation into gender and its role in constructing an individual's legal personhood. As such, both the terms “gender” and “sexed body,’ as I use them in this book, require clarification. Scholarship on gender in the premodern Islamicate context has made critical interventions in the field of Islamic studies, a male-dominated field that is largely inattentive to gendered power dynamics. In employing gender as a category of analysis, however, this body of scholarship has largely left their own assumptions about gender—and particularly the universality and naturalness of the gender binary—unexamined. The resultant effect of such an approach has not only made invisible the diversity of gender and sexed bodies in the premodern world but has also naturalized the very binary construction that scholars seek to dismantle. Gender has been interrogated alongside categories like slavery and social status; however, the relation between these identities and how they intersect has not been adequately considered or theorized. Given this, scholars largely analyze whether gender trumps or is subsumed by these other categories.”