Open the Gates!
The idea that Islamic law in the Ottoman Empire remained static is a popular misconception. Complex situations arose that had not been addressed which required the application of Islamic doctrines. The so-called “gate of ijtihad” remained ajar long after the ninth century.[1] From the rulings of Islamic judges emerge two prominent themes: a highly gendered system of law that continued to emphasize patriarchy.
One’s gender determined what was or was not permissible in society. Women had quite different gender roles than men. Strict regulation of the actions of men and women (specifically in regard to marriage divorce, and sexuality) were enforced to maintain social order. In In the House of the Law, Judith Tucker states that: “Marriage was the key to social harmony.”[2] Women maintained some rights, choices in marriage or the right to nafaqa, however, such highly gendered institutions remained patriarchal.
An example of patriarchy in the legal system may best be exemplified by the man’s right to talaq, or a divorce that required no reason for initiation. Women had no equal right. Women could ask for an annulment to a marriage because due to a defect or they could offer their dowry or other compensation in return for divorce (khul). Even legal rulings on mothering ultimately led back to the father. Although mothers are perceived as nurturers and best suited for taking care of young children, in the end a child belonged to the father. The concept of the father as the provider, and patrilineal descent, remain engrained in present society.
Recently, a woman in Iran was accused of charges related to murder and adultery. Confusion arose about the proper punishment, whether she should receive lashes, be stoned, or be hanged. After international outcry, the case has made its way to the Supreme Court. It is important to note that Iran is mainly Shia Muslims, whose jurisprudence relies more upon interpretation than Sunni Muslims for example. Although there is little doubt she engaged in criminal activity, judges continue to deliberate on the consequences of her actions.[3] The case of Sakineh Mohammadi Ashtiani proves that Islamic law and interpretation continues, possibly opening the “gates” wide enough to allow more progressive rulings and the establishment of new precedents.
[1] Judith Tucker, In the House of the Law (Berkeley: University of California Press, 1998), 11.
[2] Ibid., 40.
[3] Meris Lutz. “Babylon & Beyond,” (January 2, 2011) http://latimesblogs.latimes.com/ babylonbeyond/2011/01/iran-adultery-sakineh-stoning-hanging-justice.html (accessed February 23, 2011).