"Beyond the Binary" reveals early Muslim jurists' ideas of gender
One of the most hotly debated issues in contemporary Muslim ethics is the status of women in Islamic law. Whereas Muslim conservatives argue that gender-differentiated legal rulings reflect complementary gender roles, Muslim feminists argue that Islamic law has subordinated women and is thus in need of reform. The shared assumption on both sides, however, is that gender fundamentally shapes an individual’s legal status. Beyond the Binary explores an expansive cross section of topics in ninth- to twelfth-century Hanafi legal thought, ranging from sexual crimes to consent to marriage, to show that early Muslim jurists imagined a world built not on a binary distinction between male and female but on multiple intersecting hierarchies of gender, age, enslavement, lineage, class, and other social roles. Saadia Yacoob offers a restorative reading of Islamic law, arguing that its intersectional and relational understanding of legal personhood offers a productive space for Muslim feminists to move beyond critique and instead think with and through the Islamic legal tradition.
Saadia Yacoob is Assistant Professor of Religion at Williams College.
Read an excerpt from Beyond the Binary below.
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 Qur’anic 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.