Women as legal witnesses

In the Name of God, The Compassionate, The Merciful,

{God has promised the believers, both men and women, Gardens graced with flowing streams where they will remain; good, peaceful homes in Gardens of lasting bliss; and – greatest of all – God’s good pleasure. That is the supreme triumph.} [9:72]

The forgotten women scholars of islam (see here)

In many peoples minds and in various articles in the media etc there is the belief that a woman's testimony is only worth half that of a man's in Islamic Law.  This is a gross misrepresentation of Islamic Law and that which is implied is false.

A Woman's testimony is considered equal to a Man's

A woman's testimony is equal to that of a man's in Islamic Law because she is considered of equal status, as the Prophet (peace be upon him) explicitly states:

“All people are equal, as equal as the tooth of a comb. There is no claim of merit of an Arab over a non-Arab, or a white or a black person, or a male over a female. Only God-fearing people merit a preference with God” [Ahmad]

Perhaps the clearest example of equality in testimony is in the case of imprecation (li'an); if an accusation of adultery is made by one spouse, the others denial of it is considered equal. 

{As for those who accuse their own wives of adultery, but have no other witnesses, let each one four times call God to witness that he is telling the truth, and, the fifth time, call God to reject him if he is lying; punishment shall be averted from his wife if she in turn four times calls God to witness that her husband is lying and, the fifth time, calls God to reject her if he is telling the truth.} [24:6]

There are many other instances in which the legal capacity of a woman is explicitly stated as equal to that of a man's, which will be looked at further below, however the words from the authoritative work Al Hidaya by al Marghinani (d. 1197 CE) on the subject of marriage are worthy of mention:

"We maintain that she is a freewoman... She is, therefore, just like a young man, and her capacity for being free with respect to marriage is just like her freedom to undertake transactions in her wealth."

If not two men, one man and two women

The only place in the Qur'an where there is a difference in the number of witnesses due to gender is in the verse:

{You who believe, when you contract a debt for a stated term, put it down in writing: have a scribe write it down justly between you... Call in two men as witnesses. If two men are not there, then call one man and two women out of those you approve as witnesses, so that if one of the two women should forget the other can remind her...} [2:282]

The underlying cause (i'llah) for any valid transaction in Islam is agreement, specifically to business contracts by an offer for a commodity and its acceptance.  As such, to avoid arguments agreements should be written and if unable then witnessed, which is the directive of this verse.  The number of witnesses and gender are only specific to witnessing of a business contract, which in no way implies a deficiency to a woman's witnessing generally.  Rather it is peculiar to the case at hand.

Forgetfulness

One possible interpretation of the verse is that the reason for having two women witnesses is that women are forgetful.  This could be either by their nature or the social circumstances, although classical scholar have gone with the latter.

Some argue that there is something inherent in women that is forgetful by their nature, for example they are less particular about details then men and are therefore more inclined to forget them.  This understanding does exist as folk lore, although would need to be corroborated by scientific research, which may exist or not?  However, I would argue that if there is some inherent 'forgetfulness' particular to women then why are women allowed as witnesses at all?  There is no reason why the second woman would not also forget if this were true.

The classical works identify the witnessing here to be to do with outwardly public matters and therefore the reasons are entirely social.  The great contemporary scholar al Zuhayli (b. 1932 CE) argues that the additional woman is purely for social practicalities (see here).  The second witness is there to corroborate the story of the first, this also applies to the male witnesses; hence why two are needed.  In Islamic society men and women have limited contact and would therefore not be as readily able to remind a witness of the opposite gender. Extending this, the respected scholar M I H Pirzada (b. 1946 CE) in his book The Status of Women in Islam argues that since modern scientific research has proven: "women are characterised by the tendency to be more easily discouraged by failure than men" (Encyclopedia Britannica, Status of women) then in the intimidating situation of a contract dispute the other woman is there to console and support her should she forget out of fear.

Familiarity with the subject 

In Islamic Law, studying the law of business (fiqh al buyu') is obligatory (wajib) on all males who have dependents, whereas it is not so with women.  Since laws are based on generalities, therefore, men are given precedence in this one specific case due to the assumption that they are more familiar with the subject matter.  If the the underlying cause (i'llah) is familiarity with the subject as the foremost scholar al Buti (b. 1929 CE) argues then a different subject more familiar with women, such as child birth etc, would give them precedence (see here).

Speculating somewhat, we may deduce that as a Shafi'i scholar this may highlight an underlying cause which differs from the Hanafi's.  As such on the above reasoning the ratio of witnesses is general and maybe overruled by exceptions.  For example, a woman with a PhD in economics or a degree in business etc would be proof of her familiarity with business contracts, in the same way that a male gynecologist would also be proof of his familiarity.  It certainly stresses that expert witnesses may be of any gender and the rules are merely general based on customs for those that witnessed the event only.

Capital punishment - Hadd

Scholars have extended the ratio of witnessing in business contracts to that of criminal law and other outward public law, since this is understood as the effective cause (i'lla).

The name sake of the Hanafi School, Abu Hanifa (d. 767 CE) in Kitab al Athar informed his student that his teacher Nakha'i (d. 726 CE) said: "testimony of women along with men is valid in everything apart from hadd punishments."  An understanding of Islamic Criminal Law is important here to understand what is meant.

In Islamic Law there are two types of punishments hadd and ta'zir.  Hadd linguistically means restraint and prevention.  Technically it is corporal or capital punishments for either: murder, theft, adultery, unsubstantiated accusation of adultery, drunkenness, rebellion and brigandage.  Hadd marks the uppermost limit of punishments in these crimes and has very strict conditions that must be met.  The punishments are severe and it is understood to invoke fear, however its application is with mercy because the intention is not to punish but to prevent.  The hadith narrated by the companion ibn Abbas from the Prophet (peace be upon him) elucidates:  

"Prevent the [application of] hadd punishments because of ambiguity." 

It is obligatory on the judge to look for the slightest doubt and lessen the punishment to that of ta'zir.  Ta'zir means disgrace and is a discretionary punishment enacted by the judge or state for those found guilty of a crime that does not fulfil the requirements of hadd or is not a crime punishable by hadd.  The reason therefore that a woman's testimony is not taken into account for hadd punishments is because only men are mentioned as witnesses from the texts of the Qur'an.  Whilst it doesn't prohibit women and would therefore seem reasonable to make the analogy with witnessing in business contracts, there is an element of doubt and so because doubt lifts hadd, only men are taken in these cases.  Hadd, however is not proof of guilt so a crime may be witnessed by only women for which the judge finds the defendant guilty and applies ta'zir, just not hadd.

The upshot of the above, is that it decreases the chances of someone having the severest penalties, but justice is still being served.

Women as witnesses by themselves

The ratio of one man to two women is also generally applied to all other matters of public affairs, such as financial claims, divorce, marriage and emancipation etc.  However women as independent witnesses of men is normally only accepted in all personal matters that are not accessible to men, like birth and the anatomical defects of women etc.  The reason for the difference made between public and private matters is purely social and for the protection of women, as such one upright women in these private matters is sufficient as a witness according to Abu Hanifa and Ahmed ibn Hanbal (d. 855 CE) - namesake of the Hanbali School.

Women as Judges 

Perhaps most indicative of debate amongst classical scholarship relative to a woman's testimony is that women can serve as judges.  Generally speaking Maliki, Shaf'i and Hanbali Scholars do not permit women judges owing to analogy with a hadith alluding to women not being permitted to be head of state, although its application generally is debated (see here).  In the Hanafi School women serve as judges in all cases they can give testimony in, i.e. not criminal law involving hadd punishments. This is in keeping with Islamic metaphysics; woman viewed as primarily of the gentle characteristics would then seem 'unnatural' holding the position of something so strikingly severe as adminitering capital punishment (see here). Scholars have been more liberal, although of the minority, for example the primary Quranic exegete Tabari (d. 923 CE) argues that since there is no disagreement at all that a woman may be a mufti (juristic expert that defines the law and is advisor to the judge) absolutely, then by analogy she may be the lesser station of judge (qadi) absolutely, since there is no explicit text to suggest otherwise.

Female Judges are not common in British History, the first being Rose Heilbron in 1957, and currently only 23% of judges are women although this is very low compared to the rest of Europe (see here).  Likewise the only judge installed officially that is well known in the Islamic World is Thamal Al-Qahramanah (d. 937).  Interestingly women's involvement in law in the Muslim World is the reverse of Europe's; most involvement was at the dawn of Islam, which has steadily declined over time as Dr Akram An-Nadwi of Oxford University has proven.  Whilst it is indeed rare in Islamic history, women judges are not without precedent and so re-engagement by women in Islamic Law is by no means prohibited and given that it is a communal obligation (fard kifayyah) to have female legal experts, it should be actively encouraged. 

Conclusion 

English Law like Islamic Law has two courts; the Criminal and the Civil.  The Criminal is for crimes against the public, has severer punishments, is very public with a jury etc and requires strong evidence: 'beyond reasonable doubt.'  The Civil courts are for disagreements between people, has lesser punishments, is private and merely requires a judgement in favour of one party over the other.  Islamic Law is not vastly different here except that in public cases women are required to give evidence accompanied by a man for protection and another women for support, mirroring Islamic society and the overarching concept of protecting a woman's dignity and honour.  However, in private matters away from the public's beady eye, the woman is safe and secure and is thus able to give evidence independently.  Whilst Islamic Law does differ to modern English Law in making any distinction between genders, it is clear that this is not born out of injustice or the belief that women are inferior.  In fact the only people that think this are simply ignorant or have prejudices that say more about their own psyche than anything at all to do with Islamic Law!

The above gives a broad view of witnesses in Islamic Law, which presumes a traditional Islamic society.  This is a complex field far beyond my or most people's capabilities, however the question arises whether the same conclusions drawn by classical scholarship are applicable to a modern society like Britain?  There is much scope for debate since the argument is based on analogical reasoning (qiyas) rather than a clear text (nass).  Qiyas is a mode of independent legal reasoning (ijtihad) and therefore may be overruled by legal preference (istihsan) should the resulting analogy prove unfair or unjust.  The majority of scholars have extended the number of witnesses described in 2:282 to all matters of public affairs accessible to men (thus assumed less accessible by women), although this is a general trend and there is scope for exceptions in a particular case should justice not be served.  Whilst the argument for abstaining to use a women's testimony in hadd punishment is considered sound and agreed upon, other than this may be in need of re-evaluation.  Speculating yet further, the verse 2:282 may not necessarily be obligatory as it appears in the form of recommendation as the reformer ibn Taymiyyah (d. 1328) argues.  Further expert investigation would be most interesting, but alas is beyond this post.

And God knows best

Combining Prayer

In the Name of God; Most Compassionate, Most Merciful

Recently I was discussing with someone about the difficulty of praying at work.  The conversation went onto combining of prayers for ease.  He said this was something he knew of, but had not really done or looked into.  Therefore, for information I thought I might write something about the various positions amongst the scholars of Islam.  The topic does also show the fundamental differences between the methodologies of the four Sunni Schools of Law - Hanafi, Maliki, Shafi'i and Hanbali - and so is also a useful topic for comparative jurisprudence.

Quranic verse on the timings of prayer

{Prayer is obligatory for the believers at prescribed times} [4:103]

This verse is clear and is used unanimously as a general command of obligation on Muslims to pray at specific times, for which the details are found elsewhere in the Sunnah.  These are the prayers at: the morning (fajr), noon (dhuhr), the mid afternoon (asr), dusk (maghrib) and night (i'sha).  There is slight disagreement about the exact timings of some of these prayers, but that is beyond the scope of this post.

Combining of prayer in the Sunnah

There are many narrations that speak of the Prophet (peace be upon him) combing prayers.  Scholars argue over their authenticity, but the ones agreed upon - for which the others merely corroborate a particular interpretation - are these.  I have numbered them so that they can referred to easily:

1. Anas ibn Malik said: "When the Prophet, may Allah bless him and grant him peace, set off on a journey before noon, he would delay Dhuhr until the time of 'Asr and then join the two. If it was past noon, he would pray Dhuhr and then mount." [Bukhari, Muslim]

2. ibn 'Umar said, "I saw the Messenger of Allah, may Allah bless him and grant him peace, when he was in a hurry on a journey, delay Maghrib and join it with 'Isha'." [Bukhari, Muslim]

3. ibn Abbas said: "The Messenger of Allah combined the dhuhr and 'asr and then the maghrib and 'isha in Medinah without there being any danger or rain." Ibn 'Abbas was asked: "What did he desire by that action?" He replied: "He did not want any hardship for his community." [Muslim]

There is a disagreement between the verse of the Qur'an and the Sunnah for which the scholars have differed in how to interpret this.

Hanafi prohibition of 'true' combining

The Hanafi School differs in interpreting the Qur'an because it argues that a general verse is as definitive (A'mm) as a particular (Khass) one and so can supersede its meaning.  In this case the general understanding from the Quranic verse is seen as definitive and therefore all seemingly contrary evidences are interpreted accordingly. In other words prayers are at their fixed times and they cannot be moved from this.

Whilst the hadith above could mean combining two prayers in one prayer time, they are somewhat speculaitve because they could also mean combining in one place.  So that statements like in hadith 1: "he would delay Dhuhr until the time of 'Asr and then join the two," could mean the Prophet (peace be upon him) delayed prayer until he just caught the end of Dhuhr time and then prayed 'Asr right at the beginning of its time, all in one place.

Therefore the Hanafi Scholars have argued that a speculative interpretation cannot override a clear one.  Other hadith corroborate this interpretation, such as:

ibn Masu'd said: "I never observed the Messenger of God (peace be upon him) pray any prayer out of its time except as Muzdalifa [during the pilgrimage].  He combined Maghrib and Isha at Muzdalifa" [Bukhari, Muslim]

They argue it is virtually impossible that a companion of ibn Masu'd's knowledge would be unaware of combining prayers.  It is also probably worth noting that ibn Masu'd initiated the Kufan School in Iraq that was the forerunner to the Hanafi School, which may explain their reasoning.  Whilst this narration does seem to also contradict their interpretation somewhat, they would argue that the prayer at Muzdalifa during pilgrimage (Hajj) is a special act of worship reserved for only then, i.e. it is the prescribed time, just to a different one.

Maliki combining due to hardship

The Maliki's synthesised both the verse and the hadith so that there is effectively three prayer times: fajr, dhuhr and a'sr make one time, and maghrib and i'sha make another.  However, to pray outside of the usual five times is impermissible without a valid excuse.  The effective cause (i'lla) for the excuse is considered hardship, owing to the words from hadith 3 "He did not want any hardship for his community."  It is worth noting that the force of the evidences to pray in the correct five times is great and so the excuses are likewise great.  Therefore, they have identified severe illness, chronic breaking of ritual purity, heavy rain for a congregation at night and a hurried journey.  The last two points need a little explanation.

There are a number of evidences that point to rain as an excuse, which can also be understood from hadith 3.  However, the Maliki's argue it is only rain at night or treacherous mud owing to the hardship endured.  From some rather complex legal argument this may seem an unnecessary specification, rather than just saying heavy rain generally.  However the Maliki methodology makes use of the Practice (Amal) of the people of Madina as evidence also.  Since the school initiated in the cities of Mecca and Madina at a time when the Prophet's Sunnah was in living memory and prevalently practiced, they used common practice of upright knowledgeable Muslims like a hadith.  A narration not by word of mouth, but by observation and repetition.  It is argued that this is a sounder form of evidence than a hadith because you remember more of what you witness than what you merely hear.

The Maliki's also argue that the journey which permits combining of prayers must be hurried.  Mention of this can be seen in hadith 2  "when he was in a hurry on a journey." Since the effective cause is hardship then the only journey included as an excuse is a difficult one.  Journeys for mere amusement etc are not considered a valid excuse.

Shafi'i combining for rain and travelling

The Shafi'i's argued the verse is general, but the hadiths give exceptions.  Therefore the only excuses are those stipulated in the hadith, namely that of heavy rain if praying in congregation and travelling.  The Shafi'i School is heavily text based and more literalistic than the two already discussed, therefore the excuses are not as defined as the Maliki School since the texts are silent on this matter.

Hanbali most lenient

The Hanbali School generally views the Qur'an and Sunnah as one source of equal weighting and relies heavily on the transmissions from the first three generations (the salaf).  On this point they are the most lenient as they have taken the hadith 3 "He did not want any hardship for his community," equal to that of the verse.  As such they have been more liberal in describing the hardships which permit combining.  They have identified: travelling, sickness, a breast feeding women, chronic breaking of ritual purity and - most interestingly given our times - combining due to fear of loss of property or wealth (i.e. this means prayer can be combined at work if difficult).

Modern Discussion

There are many many more arguments within each school that have not been mentioned, as well as those outside of them.  Although, it paints a picture of the Sunni understanding of combining of prayers.  As we have moved to the modern era, scholars have very much repeated the above since prayer is from the acts of worship (ibadat) and beyond reasoning.  However, they are also sympathetic to the situation we find ourselves in today and are normally a little more liberal in giving verdicts (fatwa).

Sh. Abdullah bin Bayyah - one of the most erudite and respected scholars of our age, having formal permission (ijaza) to give legal opinions in all four schools of law - says:

"There is a valid opinion amongst the recognised fuqaha (scholars) ... in circumstances where people really have a difficult time, it is better that they join their prayers rather than lose their prayers altogether because if you do not present those options for them, there are people who say, "I can't pray. It's too hard. I'm working and this and that;" and their iman (faith) might be weak. So, in these types of situations, there has to be facilitation for these people."

The European Fatwa Council stated, also making use of hadith 3:

"The Council concluded that it is permitted to combine two prayers in Europe during Summer when Isha enters around midnight, or the signs of Ishā' disappear totally, so that Muslims do not face difficulty ...  In the same respect, it is also permitted for a Muslim to combine Dhuhr and 'Asr prayers in these countries during winter when the day is very short and it becomes increasingly difficult for employees to pray each in its own time. The Council, however, warns Muslims against combining the said prayers without the actual need to and against making this permission a constant habit."

Conclusion

The scholars of Islam have defined clear methodologies for identifying and interpreting evidence.  Since they differed in this then they also differed in the concluding rulings they derived.  Generally it is not considered permissible to mix between the schools in a single act as it may produce something contradictory - something the Shariah is not - however it is permissible to take a dispensation (rukhsa) from another school due to hardship. The plurality of legal opinions in Islamic Law give vast freedoms for people of all walks of life.  Of course some opinions are safer and more religiously precautionary than others.  And whilst we are free to choose, we must remember it is our own selves who will have to answer for our actions.  As the saying goes there is a difference between fatwa (legal verdict) and taqwa (piety).

"Ibn Mas'ud said: "I asked the Messenger of God, may God bless him and grant him peace, 'What is the best action?' He said, 'The prayer in its time.'" [Bukhari, Muslim]

And God knows best

Further Reading

Bidayat Al-Mujtahid Wa Nihayat Al-Muqtasid (The Distinguished Jurist's Primer) vol 1 by ibn Rushd (trans. Imran Nyazee), Garnet Publishing Ltd

The Theology of Gender

In the name of God, Most Compassionate, Most Merciful
 
{People, We created you all from a single man and a single
woman, and made you into races and tribes so that you should
recognise one another. In God’s eyes, the most honoured of you are the ones most mindful of Him: God is all knowing, all aware} [49:13] 

The last few posts have focused on gender issues.  Whilst the primary aim of this blog is to look at these from a legal perspective, it does of course throw up bigger questions such as what is gender? What is woman? What is man's relationship with God? What is man's relationship with the universe? etc.  Whilst an incredibly complex and potentially endless topic, I thought a few words may be of some help, God Willing.

 No God, but God

Islam begins with the assertion 'there is no god, but God.' It is made of two elements the negation; 'no god,' and the affirmation; 'but God.' It denies other than God and affirms only Him; such as it denies the power of anything but God's, or denies the love of anything but God's, or denies even reality except for God. Elaborating on this last point, He only truly exists and nothing else, for He is the Real (Al Haqq).  Muslims do not say as some Eastern faiths that the universe is merely illusionary however, but rather that everything in the universe exists only through Him.  So God is self subsisting and can carry on with or without the universe, the universe on the other hand exists only by God giving it existence and so cannot exist without Him.  The universe is not God (negation), but it does have a certain connection with God - since He makes it exist at each moment - and so therefore is somewhat like Him (affirmation).  

The Purpose of Creation

The Universe is of God's Acts; He brought it into being and sustains it at every moment.  God is One and there is no difference or change to how God is in of Himself, what is known as His Essence (Dhat).  However in His Act of creating the Universe, his many Attributes are made manifest for which there is a perceived difference between. As with a painting saying something of the painter, so too does the universe say something about God.  God said in the Divinely revealed hadith (hadith qudsi):

"I was a Hidden Treasure, so I wanted to be known.  Therefore I created the world that I might be known."
  
Although in the science of hadith the authenticity of this narration is considered dubious, it is considered correct in meaning, since it is corroborated by many verses, such as: {I created the Jinn and Mankind to worship [recognise/know] Me} [51:56].  So the purpose of creating is to make God's Attributes manifest. 

Divine Attributes

The Attributes (Sifat) are identical to His Essence in that they refer to Him, but through a particular relational connection with His Act of creation. In the same way a man may be known as a father, son or brother based on a particular relationship; the name refers to the same man but is in reference to a different relationship.  God has many Attributes such as Al Rahman (The Merciful), Al Wadud (The Loving) and Al Khaliq (The Creator).  So from unity there is multiplicity. From God's perspective there is just Him and absolute unity, but from our perspective we see a multiplicity as we interact with His Action of the universe.  Perhaps an imperfect analogy might be to think of the light from the Sun; the rays emanate from the Sun, as white light the rays are one colour, but as they interact with the earth we see an infinite variety of colours.

The Opposites of the Attirbutes

The attributes can be divided into two categories, known as the Attributes of the Essence and the Attributes of the Acts.  The Attributes of the Essence refer to God in of Himself and of which the opposite does not apply, such as The Living (Al Hayy), The Knowing (Al A'lim), and The Seeing (Al Basir) etc.  The Attributes of the Acts are Names whose opposites also apply, such as The Exalter (Al Rafi') and The Abaser (Al Khafid) etc.  It is in these Attributes of the Acts that God becomes manifest, it is understood that things are made clear through their opposites such as white is made clear by black

{We created pairs of all things so that you [people] might take note} [51:49]

Rumi (d 1273 CE) has some wonderful poetry to describe exactly this:

"God created suffering and heartache so that joyful-heartedness might appear through its opposite.  Hence hidden things become manifest through opposites.  But since God has no opposite, He remains hidden."

The Beautiful and Majestic

The Attributes of the Acts can be sub-divided into a further two categories: The Majestic (Jalal) and Beautific (Jamal).  The Majestic Attributes are like that of The Just (Al 'Adl), The Holy (Al Quddus) and The Magnificent (Al 'Azim) etc.  These Attributes are of God's incomparability and invoke in humans a sense of awe and fear.  The Beautific Attributes are like that of The Mercful (Al Rahman), The Forgiving (Al Ghaffar) and The Loving (Al Wadud) etc.  These names are of God's similarity and invoke in humans a sense of intimacy and hope.  It is these two opposite categories that are the archetypal conceptions of masculinity (majestic) and femininity (beautific) rather like the Toaist ying-yang dichotomy. I do not mean here that God is in any way male or female, but rather these groups of Attributes are the metaphysical qualities of each gender.

Mankind

God created mankind as His representative or successor (khalifa) on Earth:

{[Prophet], when your Lord told the angels, ‘I am putting a successor on earth,’ they said, ‘How can You put someone there who will cause damage and bloodshed, when we celebrate Your praise and proclaim Your holiness?’ but He said, ‘I know things you do not.} [2:30]

As God's representatives, humans should act as God wishes them to, establishing harmony between God and creation.  Humans are able to fulfil this role as having both a Divine and created Earthly origin. 

{We create man in the finest state then reduce him to the lowest of
the low} [95:4-5]

It is between these two opposites that humans operate; close or distant to God.  They have the free will to manifest God's qualities through the delicate balance of majesty and beauty, or squandering their lofty potential.  Although the human is not two; the body and soul are inseparabley one.  The spirit and body manifest all the Attributes together.  This original nature (fitra) of the human is the reflected image of the Divine Reality, as the universe manifests God's Attributes:

{We shall show them Our signs in every region of the earth and in themselves} [41:52]

Human perfection is then to realise and actualise this original nature.

No Love without Justice

Man's greatest obstacle to achieving perfection and nearness to God is his own self.  God desires man to know Him and be intimate. But intimacy is characterised by bold expressiveness, the feeling we can say and do anything we wish.  Reliance on God's Mercy alone, such as the verse: {do not despair of God’s mercy. God forgives all sins} [39:53] would lead to chaos as people disregarded any responsibility.  God is One and not multiple; order unites and draws near to God, disorder separates and distances from God.  Therefore the first stage to draw nearer to God is to submit to His order and observe the law and then He will reveal Himself intimately.  If you like, as an analogy, the good servant of the King is bestowed with robes of honour.

In terms of the categories of God's Attributes, if the Beautific face is unveiled in plain sight it would overthrow the Majestic and thus become hidden once more.  But if the Beautific is hidden in the plain sight of the Majestic then it can be found; the Majestic shows the door to the Beautific.  This idea of the Majestic guarding the door to the Beautific is a common theme in Islamic thought.  Majesty is the archetypal masculine and Beauty is the archetypal feminine.  Socially speaking, Islam in its organisation is outwardly masculine and inwardly feminine. Law representing the masculine for which God's servants must submit (Islam) and Mysticism (Tasawwuf) representing the feminine for which The Loving (Al Wadud) is an intimate beloved.

Male and Female

A Human Being's perfection is to realise and actualise all the Divine Attributes within themselves.  However the human being is sub-divided into two groups: male and female; for which the outward form has inward meaning.  The male is masculine and the female is feminine.  This is not to say that both genders do not each posses all the Divine Attributes for human perfection to be realised, but rather that there is a predominance of the Majestic in the male and the Beautific in the female.  Therefore there is a natural inclination to these attributes that cannot be ignored in order to reach perfection.  Islam encourages both men to be masculine and women to be feminine, for it is of their innate nature.  Socially this has implications too; the outward visible society is masculine and guards the hidden internal feminine.  This is not to say that a particular gender is prohibited from either spheres in society - for example there have been many female rulers, judges, juristic experts, entrepreneurs etc throughout Islamic history - but rather the natural trend.

Equity over Equality

Islam is sometimes criticised for a perceived injustice in the treatment of women.  This understanding comes - if not form ignorance - from putting Western modern values onto Islam.  Whilst both world views may claim justice between the genders, they have different views on how that is achieved and so it is unfair to measure one system based on the assumptions of the other.

{the male is not like the female} [3:36]

Aristotle is famous for saying: "The worst form of inequality is to try to make unequal things equal." To treat people who are fundamentally not the same in the same is unjust.  It is not justice to give a History professor and a mathematics professor the same calculus question and expect the same result because they are not of the same category.  But it does not mean that one is better than the other, merely that they are different.  Therefore the call for equality feminism by some is not going to bring justice for women because men and women are not of the same category.  Equality feminism is based on the assumption that men and women are 'the same with different fittings,' but this is not so; and not just in Islamic metaphysics, but also genetics.  Man is not better than woman, just as the Majestic Attributes are not better than the Beautific; they are both God.  Rather the solution is equity, that of mutual respect and equal opportunity, which interestingly is what the feminist intellectual Germaine Greer - who initiated equality feminism in the sixties - is now calling for.

Final Thought

In recent history the Muslims have perhaps become more masculine orientated.  Yet Islam has a natural inclination toward the feminine.  God said in another Divinely revealed hadith (hadith qudsi):

"When Allah decreed the Creation He pledged Himself by writing in His book which is laid down with Him: ‘My mercy prevails over my wrath.’"  [Muslim, Bukhari]

Which means God's Beautific Attributes are more apparent than His Majestic.  So there is something fundamentally more feminine about the Divine Being.  The Prophet (peace be upon him) further explains that the most striking image of God is the woman:

“Two things of your world were made lovely to me, perfume and women; and the coolness of my eyes is in prayer.”  [Ahmad, An Nasa'i]

Islamic mysticism naturally has a very positive view of women and femininity, in these times it may be best for us to remember:

“Woman is the light of God.” [Rumi]

And God knows best

Further Reading

The Toa of Islam by Sachiko Murata ISBN: 978-0791409145
Boys will be Boys by T J Winter here 

Curtains in mosques

In the name of God the Most Compasionate, Most Merciful,

Some members of the community believe that it is essential that mosques have a curtain to segragate the the genders.

No obligation implied from the Qur'an

There is no verse that directly makes reference to seperate prayer areas in the mosque in the Qur'an.  However, often times the following is cited:

{When you ask his [The Prophet's] wives for something, do so from behind a screen: this is purer both for your hearts and for theirs} [33:53]

The verse's context is in describing the ettiquettes within the Prophet's (peace be upon him) household.  It is specifically addressing the Prophet's (peace be upon him) wives, although most exegetes such as al Qurtubi (d. 1273 CE) have said it also applies to Muslim women generally.  However, this is only by way of virtue; the wives of the Prophet (peace be upon him) being role models for women.  For example al Qurtubi also writes in the same commentary: "Our scholars have said that it is permissible for a bride to serve food to her husband and his guests at her wedding," which means the commandment cannot apply to all women directly.  This can be understood from the context of the verse as the next part describes how the Prophet's wives are not to re-marry after his passing, which is one of their unique rulings that only apply to them, so there cannot be any legal directive to women generally from this verse.

No recommendation implied from the Sunnah

More specifically to the topic is that in the Prophet's (peace be upon him) mosque there was no curtain.  Many hadith indicate this, such as:

The companion Sahl ibn Sa`d said: "I saw men having tied the ends of their lower garments around their necks, like children, due to shortage of cloth [because of poverty] and offering their prayers behind God's Messenger, Peace be upon him. One of the proclaimers said: O womenfolk, do not lift your heads [from prostration] until men raise theirs [and readjust their garments]." [Muslim]

This confirms the verse is - legally speaking - neither obligatory or even recommended to all women generally since the Prophet (peace be upon him) did not implement it.  However as we have seen in a previous post (here), separation between the genders into rows was implemented in the mosque, for which a detailed exposition is beyond this post.

Rarely mentioned by the scholars of Islam

A screen or equivalent between genders is not normally mentioned in the widespread classical works, although it is worth mentioning that the authorotative work Nur al Idah (Light of Clarification) by Shurunbulali [d. 1580 CE] reads:

"The imam and follower must not be seperated by a wall in which the follower does not know the changing actions of the imam due to sayings resembling each other.  If there is no confusion with respect to hearing or seeing the imam, then the following is correct according to the most correct view.  It is reported the the the Prophet (peace be upon him) would pray in the room of A'isha and the people in the mosque would be praying the same prayer behind him. [Abu Dawud, Baihaqi]"

The author stresses the importance of knowing the action of the imam otherwise this would invalidate the congregation's prayer.

Virtues of a screen
 
The ruling amongst the scholars is that the screen is generally permissible although virtuous, as it is considered to facilitate the more favourable 'inner appartments' of the woman's prayer (see here), have practical benefits such as demarcating the woman's prayer area and avoids any unnecessary glances:

"The furtive glance is one of the poisoned arrows of the devil. Whoever forsakes it for fear of God will receive from Him, Great and Glorious is He, a faith the sweetness of which he will find within his heart." [Tabarani]

However, whilst it could be argued that this is a more pure state, it is well known it is not permissible for a person to obligate others to their own personal standards when God has not obliged them to those standards.  If the women of the community are in agreement then there is no harm, however it is not apparent that the women in the community are often asked.

Conclusion

Seperate spaces within a mosque for each gender is part of the mosque layout, however it is not necessary for it to be a seperate room or to be screened off.  It is both permissible to have or not have a partition such as a wall or curtain, providing worshippers know the actions of the imam.  Scholars have viewed a partition as virtuous as it facilitates the Islamic principle of modesty (haya) although unnecessary providing space allows and the usual ettiquettes are observed.

 
Despite its virtue, I might argue that in our society it causes more harm than good and should move to disliked, for the following reasons:

The screening off of women in mosques results in them often being forgotten and so suffer from inadequate resources.  Veiled from the iman they miss most of the sermon (khutbah) since 80% of communication is non verbal and the recitation is muffled at best or at worst terribly distorted through poor quality speakers.  Therefore it goes against the principle of equity and justice. 

"Abu Sa'id al-Khudry (may God be pleased with him) narrated that some women approached the Prophet and said, "The men have more access to you than we do so appoint a day for us." The Prophet then promised to set a day to instruct them on matters of religion [Bukhari, Muslim]

This is relative to the individual mosque of course; some are better than others.

Islam is the middle way (Deen al Wasata) and it avoids extremes so to avoid reactionary opposite extremes.  The insistence by some for a curtain etc simply fuels extreme feminist activism and negative press coverage.  Under the remit of blocking the means (Sadd al Dhara'i') it would therefore seem prudent to remove unnecessary material for them to use.  Similar in principle to the command:

{[Believers], do not revile those they call on beside God in case they, in their hostility and ignorance, revile God.} [6:108]

The curtain often propogates feelings of being distant from the Muslim community and that of being a second class citizen - some objective scientific research to measure the extent would be most useful.  The mosque as almost the only propogator of Islam, if unwelcoming to women by seperating them so strikingly has - anecdotally speaking - inclined some women to leave Islam.  Therefore it may be much better to not have a curtain etc for the benefit (Maslaha) of the community.

Perhaps the most religiously abhorrent is the changing  - in the minds of many - of the ruling from mere permissiblity to obligation, this is a reprehensable innovation (bi'dah) that should be explicitly reversed.  This could be achieved by simply removing the curtain from time to time.

As a possible solution, I have seen some mosques have the women praying on a balcony where they can both see the imam and also enjoy privacy.  If architecture allows, this would seem a happy compromise that other mosques could follow suit. 

And God knows best