ON HIJAB AND AWRAH OF WOMEN AND SLAVES ( from FROM EL FADL’S ‘speaking in God’s name p.481-484)

ON HIJAB AND AWRAH OF WOMEN AND SLAVES ( FROM EL FADL’S ‘speaking in God’s name p.481-484)-reproduced verbatim

There are several material elements that are often ignored
when discussing the issue of ḥijāb or the ‘awrah of women.
These elements suggest that the issue of fitnah might have
dominated and shaped the discourse on the ‘awrah of women,
but they are also informative as to the possible authorial
enterprise behind the fitnah traditions. There are six main
elements that, I believe, warrant careful examination in trying
to analyze the laws of ‘awrah, and that invite us to
re-examine the relationship between ‘awrah and fitnah.
Firstly, early jurists disagreed on the meaning of zīnah
(adornments) that women are commanded to cover. Some
jurists argued that it is all of the body including the hair and
face except for one eye. The majority argued that women
must cover their full body except for the face and hands.
Some jurists held that women may expose their feet and their
arms up to the elbow. Importantly, someone such as Sa‘īd b.
Jubayr asserted that revealing the hair is reprehensible, but
also stated that the Qur’ānic verses did not explicitly say
anything about women’s hair.124 Secondly, the jurists
frequently repeated that the veiling verse was revealed in
response to a very specific situation. As explained above,
corrupt young men would harrass and, at times, assault
women at night as these women headed to the wild to relieve
themselves. Apparently, when confronted, these men would
claim that they did not realize that these women were Muslim
but thought them non-Muslim slave-girls, and, therefore, not
under the protection of the Muslim community. In Medina
society any individual was under the protection of either a
clan or, if the individual was Muslim, under the protection of
Muslims. Therefore, these verses seem to address a very
specific, and even peculiar, historical social dynamic. The
interaction between the text and the text’s social context is not
easily transferable or projectable to other contexts.125
Thirdly, as
noted above, Muslim jurists consistently argued that the laws
mandating the covering of the full body did not apply to
slave-girls.126 In fact, it is reported that ‘Umar b. al-Khaṭṭāb
prohibited slave-girls from imitating free women by covering
their hair. Apparently, Muslim jurists channelled the
historical context of the verses into legal determinations that
promulgated a particular social stratification. However, it is
not clear whether the social stratification addressed by the
Qur’ān is the same as that endorsed by the jurists. Fourthly,
the jurists often argued that what could be lawfully exposed in
a woman’s body was what would ordinarily appear according
to custom (‘ādah), nature (jibillah), and necessity (ḍarūrah).
Relying on this, they argued that slave-girls do not have to
cover their hair, face, or arms because they live an active
economic life that requires mobility, and because by nature
and custom slave-girls do not ordinarily cover these parts of
their bodies. This makes the focal point of the law custom and
functionality. Arguably, however, women in the modern age
live an economically active life that requires mobility and,
arguably, custom varies with time and place.127 In other
words, if the rules prescribing veiling were mandated to deal
with a specific type of harm, and slave-girls were exempted
because of the nature of their social role and function,
arguably, this means that the rules of veiling are contingent
and contextual in nature. Fifthly, several reports state that
women, Muslim or non-Muslim, in Medina, normally would
wear long head-covers – the cloth usually would be thrown
behind ears and shoulders. They would also wear vests open
in the front, leaving their chests exposed. Reportedly, the
practice of exposing the breasts was common until late into
Islam. Several early authorities state that the Qur’ānic verse
primarily sought to have women cover their chests up to the
beginning of the cleavage area. Sixthly, there is a sharp
disjunction between the veiling verses and the notion of
seduction. Seduction could be caused by slave-girls, or could
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be between woman and man, woman and woman, or man and
man.128 A man could be seduced by a slave-girl, and a
woman could be seduced by a good looking man, yet neither
slave-girls nor men are required to cover their hair or faces.
Does the fact that a particular man might be sexually enticing
to women affect the obligations of concealment as to this
man?

For the six points above see, al-Ṭabarī, Jāmī‘ al-Bayān,
18:93–95, 22:33–34 (mentions a variety of early opinions
including the up to the elbow and the beginning of cleavage
area determinations; also mentions the distinction between
free and slave girls; mentions the historical practice);
al-Nasafī, Tafsīr al-Nasafī (Cairo: Dār Iḥyā’ al-Kutub
al-‘Arabiyya, n.d.), 3:140, 313, (mentions ‘ādah, jibillah, and
ḥājah; women need to reveal their faces, hands, and feet by
custom, nature, and need; mentions the distinction applicable
to slave-girls; mentions the historical practice); al-Jaṣṣāṣ,
Aḥkām, 3:409–410, 486, mentions that slave-girls do not have
to cover their hair; mentions the historical practice); al-Kiyyā
al-Harrāsī, Aḥkām al-Qur’ān (1974), 4:288, 354 (notes
slave-girls do not have to cover their faces or hair); Ibn
al-‘Arabī’, Aḥkām al-Qur’ān (n.d.), 3:1368–78, 1586–87
527
(mentions a variety of details to adornments; discusses the
rule as to slave-girls); al-Qurṭubī, al-Jāmī(1993), 12:152–153,
157; 14:156–157 (mentions that the verse was revealed to
address the harassment of women, and to differentiate
slave-girls from Muslim women; notes the opinion that held
that the verse called for the covering of the bosom area); Ibn
Kathīr, Mukhtaṣar Tafsīr Ibn Kathīr, 2:600; 3:114–115,
(mentions determinations as to the bosom; also notes that free
Muslim women must cover their faces); Abū Ḥayyān
al-Andalusī, Tafsīr al-Baḥr al-Muḥīṭ, 6:412; 7:240–241
(mentions custom, nature, necessity; mentions the historical
practice as to revealing the bosom; mentions the distinction as
to slave-girls); al-Zamakhsharī, al-Kashshāf 3:60–62, 274
(mentions the historical practice, distinction as to slave-girls,
the rules as to functionality and custom, mentions that
covering ought not cause hardship); Ibn al-Jawzī, Zād
al-Masīr fī ‘Ilm al-Tafsīr, 5:377–378; 6:224 (mentions
mashaqqah – hardship); al-Māwardī, al-Nukat wa al-‘Uyūn,
4:90–93, 424–425, (notes the opinion that the purpose of
revelation was to instruct women to cover their bosoms;
mentions the differentiation as to slave-girls); al-Shinqīṭī,
Aḍwā’ al-Bayān, 6:192–203, 586–600 (mentions a variety of
positions; mentions determinations as to revealing the arm up
to the elbow and the view that the point is to cover the bosom;
mentions the historical practice and differentiation as to
slave-girls; author supports covering the face); Ibn Taymiyya,
al-Tafsīr, 6:23, (notes that the law of veiling does not apply to
slave-girls); Fakhr al-Dīn Muḥammad al-Rāzī, al-Tafsīr
al-Kabīr (a.k.a Mafātīḥ al-Ghayb), 23:176–179; 25:198–199,
(mentions al-‘ādah al-jāriyah (the habitual custom) and
functionality as the focal issues in determining what women
ought to cover; mentions the historical practice and the
distinction as to slave-girls); Ibn ‘Aṭiyya, al-Muḥarrar
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al-Wajīz, 4:178, 399 (mentions the determinations as to the
bosom and arm up to the elbow; mentions the rule of
functionality and custom; mentions the historical practice and
the distinction as to slave-girls); al-Suyūṭī, al-Durr
al-Manthūr, 5:45–46, 239–241 (mentions the determinations
as to the arm up to the elbow and the bosom; notes the
discussion regarding the beginning of the cleavage area;
mentions the historical practice and the distinction as to
slave-girls); al-Burūsī, Tanwīr al-Adhhān, 3:57–59, 254–255,
(mentions the determinations as to the arm up to the elbow
and the bosom; mentions the historical practice and
distinction as to slave-girls); Abū Ḥafṣ ‘Umar b. ‘Alī Ibn
‘Ādil al-Dimashqī, al-Lubāb fī ‘Ulūm al-Kitāb, 14:355–358;
15:588–590 (mentions that according to some reports the
verse was revealed to vindicate ‘Alī’s family. Also mentions
that other reports contend that hypocrites of Medina would
solicit women at night. Girls who practiced prostitution would
respond to their solicitation. The verse was revealed partly to
end this practice. Mentions the rule of practice and custom
(mā u’tīda kashfuh), and functionality and rule of necessity;
mentions the distinction as to slave-girls); al-Alūsī, Rūḥ
al-Ma’ānī (1985), 18:140–142; 22:89, (mentions the issue of
functionality and that slave-girls lead an active economic life;
mentions custom, habit, and
nature; mentions the historical practice); al-Ṣāwī, Ḥāshiyat
al-Allāmah, 3:136–137, 288–289 (mentions various
positions).

ON WOMEN’S AWRAH
-it is not used in the early discussion on
women’s attire in prayer. The traditions instead address the
kinds of clothing a woman must wear in prayer, and
distinguishes between the appropriate attire for free and slave
women. Specifically, al-Ṣan‘ānī relates traditions on two
issues. The first issue concerns what a free woman must wear
when praying. Generally, the items for consideration are a
khimār, jilbāb, dir‘ sābigh, and milḥaf Al-Ṣan‘ānī,
al-Muṣannaf 3:128–129, 131, 135; Ibn Abī Shayba,
al-Muṣannaf 2:36–37. See also, al-Māwardī, al-Ḥāwī
517
al-Kabīr, 2:169; Ibn Mufliḥ, al-Mubdi’ 1:366; al-Ramlī,
Nihāyat al-Muḥtāj (1992), 2:13–14; al-Bahūtī, Kashshāf
al-Qinā‘, 1:318; Ibn Ḥazm, al-Muḥallā, 2:2:249–250. The
second issues concerns whether a slave woman must also
wear a khimār for prayer? The khimār is generally a garment
that covers a woman’s head. Ibn Manẓūr, Lisān al-‘Arab,
4:257; Ibn Mufliḥ, al-Mubdi’ 1:366; al-Bahūtī, Kashshāf
al-Qinā‘ 1:318. The meaning of dir’ sābigh generally
suggests some type of loose-fitting garment that extends to
one’s feet. The relevant distinction is that a dir‘ does not
necessarily cover a woman’s head. Ibn Manẓūr, Lisān
al-’Arab, 8:81–82; Ibn Muflih, al-Mubdi’ 1:366; Lane,
Arabic-English Lexicon 1:871–872. Jilbāb refers to a garment
that is larger than a khimār and generally covers a womans
head and chest area, but may also cover her entire body. In
some cases it is used as a synonym for khimār; and in others
for an izār. Ibn Manẓūr, Lisān al-‘Arab, 1:272–273. And a
milḥaf is a blanket (dithār) or cover which is wrapped over
other clothes. Ibn Manẓūr, Lisān al-’Arab, 9:314. Al-Ṣan‘ānī
reports that the Prophet said that menstruating free women
must wear a khimār, otherwise their prayer will not be
accepted. Al-Ṣan‘ānī, al-Muṣannaf 3:130, 131; Ibn Abī
Shayba, Kitāb al-Muṣannaf 2:39–40. The reference to
menstruation is generally regarded as a reference to adulthood
or the age of majority. Al-Marghīnānī, al-Hidāya, 1:43.
Women who are not adults are not necessarily subject to this
requirement. Al-Ṣan‘ānī, al-Muṣannaf 3:132. In another
tradition, a woman is supposed to wear a khimār, a dir’ and
an izār, although there is some countervailing traditions
against this position. Ibn Muflih, al-Mubdi’ 1:366. Some
traditions suggest that an acceptable dir‘ must be long and
loose enough to cover the appearance of a woman’s feet,
although without a khimār, it is insufficient. Al-Ṣan‘ānī,
518
al-Muṣannaf 3:128; Ibn Abī Shayba, Kitāb al-Muṣannaf 2:36.
One tradition relates that ‘āisha was seen wearing during
prayer a garment around her waist (mu’tazirah), a dir‘ and a
thick khimār. Al-Ṣan‘ānī, al-Muṣannaf p. 129. On the other
hand, Umm Ḥabībah, a wife of the Prophet, is reported to
have worn a dir‘ and an izār that was large enough to drape
around her and reach the ground. Notably, she did not wear a
khimār. Id. Yet another tradition relates that the Prophet’s
wives Maymūna and Umm Salamh would wear a khimār and
a dir‘ sābigh. Ibn Abī Shayba, Kitāb al-Muṣannaf 2:36.

The issue of ‘awrah is complex partly because it is
extremely difficult to retrace and reclaim the historical
process that produced the determinations as to ‘awrah. The
conventional wisdom maintains that early on, Muslim jurists
held that what should be covered in prayer should be covered
outside of prayer. This, however, is not entirely true. The
dominant juristic schools of thought argued that the ‘awrah of
men is what is between the knee and navel. A man ought to
cover what is between the knee and navel inside and outside
of prayer. A minority view, however, argued that the ‘awrah
of men is limited to the groin and buttocks only; the thighs are
not ‘awrah. The ‘awrah of women was a more complex
matter. As noted below, the majority argued that all of a
woman’s body except the hands and face is ‘awrah. Abū
Hanifa held that the feet are not ‘awrah, and some argued that
half the arm up to the elbow, or the full arm, is not a ‘awrah.
A minority view held that even the face and hands are ‘awrah
and therefore, must be covered as well. An early minority
view held that the hair and calves are not ‘awrah. In addition,
some argued that women must cover their hair at prayer, but
not outside of prayer. Importantly, the jurists disgreed on
whether the covering of the ‘awrah is a condition precedent
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for the validity of prayer. The majority held that covering the
‘awrah is a fard (basic and necessary requirement) so that the
failure to cover the ‘awrah would invalidate a person’s
prayers. The minority view (mostly but not exclusively
Mālikí jurists) held that covering the ‘awrah is not a condition
precedent for prayer – accordingly, this school argued that
covering the ‘awrah is among the sunan of prayer (the
recommended acts in prayer), and the failure to cover the
‘awrah would not void a person’s prayers. A large number of
Hanafī jurists argued that as long as three-fourth of the body
is covered the prayer is valid. Interestingly, Mālik reportedly
allowed people to pray naked (‘urāh), if they were unable to
procure dressing garments. However he suggested that such
people should pray alone so as not to see each other’s ‘awrah,
and remain standing throughout. However if they are praying
in the dark of night (layl muẓlim), they may pray in
congregation with an imām leading them. Saḥnūn b. Sa‘īd,
al-Mudawwana al-Kubrā (Beirut: Dār Ṣadr, n.d.), 1:95–96.
See also, al-Qarāfī, al-Dhakhīrah, 2:106–107; Ibn Mufliḥ,
al-Mubdi‘, 1:370–374. The Shi‘ī al-Tūsī adopts the same
view and also allows them to pray in congregation during
daylight hours, as long as they pray in only one line and in a
sitting position. al-Ṭūsī, al-Mabsūt, 1:87. Al-Bahūtī goes so
far as to say that even in this case, congregational prayer
remains obligatory. Al-Bahūti, Kashshāf al-Qinā’, 1:324. See
also, Ibn Ḥazm, al-Muḥallā, 2:255–257. Being unclothed for
prayers does not allow one to steal clothes out of necessity,
according to al-Ramlī. Since one can pray naked, there is no
necessity as in the case of stealing clothes to protect oneself
from heat or freezing temperatures, or stealing food to prevent
death by starvation. Al-Ramlī, Nihāyat al-Muḥtāj (1992),
2:12. See also, al-Bahūtī, Kashshāf al-Qinā‘ 1:322–324, who
addresses the various means by which those without sufficient
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clothes can pray. The overwhelming majority of jurists held
that the ‘awrah of a slave-girl, or even a female servant girl,
is different. Some jurists argued that the ‘awrah of such a
woman is between the knee and navel – the same as a man.
The other jurists held that the ‘awrah of such a woman is
from the beginning of the chest area to the knees and down to
the elbows. Therefore, the majority agreed that a slave-girl or
servant-giri may pray with her hair exposed. A minority view
argued that slave-girls should cover their hair in prayer, but
do not have to do so outside of prayer. In short, it seems to me
that the conventional wisdom is not exactly correct; there
seems to be sufficient grounds for differentiating between the
‘awrah in prayer and outside of prayer. Furthermore, as noted
below, the ‘awrah of slave-girls or servant-girls, inside and
outside of prayer, raise serious questions about the basis for
the historical juristic determinations regarding the ‘awrah of
women. See, on the law of ‘awrah: al-Ṣan‘ānī, al-Muṣannaf
3:128–136 (documents some of the early opinions). For
Mālikī school, see: Ibn Rushd (II), Bidāyat al-Mujtahid,
1:156–158; Ibn Rushd (I), al-Muqaddimāt al-Mumahhtdāt,
1:183–185; Sahnūn, al-Mudawwana (Dār
Ṣadr), 1:94; al-Ḥaṭṭāb al-Ra‘īnī, Mawāhīb al-Jalīl,
2:177–187; al-Qarāfī, al-Dhakhīrah, 2:101–105. For Shāfi‘ī
school, see: al-Shāfi’ī, al-Umm (Beirut: Dār al-Fikr, n.d.),
1:109; al-Ramlī, Nihāyat al-Muhtāj (1992), 2:7–8, 13;
al-Māwardī, al-Ḥāwī al-Kabīr, 2:165–171. For Ḥanafī
school, see Ibn Nujaym, al-Baḥr al-Rā’iq, 1:467, 469–476;
Ibn ‘ābidīn, Hāshiyat Radd (1966), 1:405; al-Kāsānī, Badā’ī
al-Ṣanā’ī, pp. 543–546. For Hanbalī school, see Ibn
Qudāmah, al-Mughnī (Dār Iḥyā’ al-Turāth al-’Arabī), 1:601;
Ibn Mufliḥ, al-Mubdī, 1:361–367; al-Bahūtī, Kashshāf
al-Qinā‘, 1:315–317. For Ja‘farī school, see al-Ṭūsī,
al-Mabsùṭ, 1:87–88.

ON AWARAH OF SLAVES:
Some of the late jurists argued that if a slave-girl will
cause a fitnah she must cover her breasts or hair. Al-Ḥaṭṭāb
relates that although a slave womans ‘awrah is the same as a
man’s, some have said that it is reprehensible for someone
who is not her owner to view what is under her garments, or
to view her breasts, chest, or whatever else “leads to fitnah”
(wa mā yad’ū al-fitnah minhā). Consequently, despite having
the same ‘awrah as men, it is preferred that she bare her head
but cover her body. Al-Ḥaṭṭāb, Mawāhib al-Jalīl, 2:180, 184.
See also, al-Qarāfī, al-Dhakhīrah, 2:103–104. Al-Bahūtī
relates views suggesting that as a matter of caution (iḥtiyāṭ), it
is preferrable that the slave-girl cover herself in the same
fashion as an adult free woman, including covering her head
during prayer. Al-Bahūtī, Kashshāf al-Qinā‘ 1:316. Ibn
‘Ābidīn also argues that most of the scholars of the Ḥanafī
school do not permit a slave woman to have her breasts,
chest, or back exposed; however it is said that a slave
woman’s chest is part of her ‘awrah only in prayer but not
otherwise. Nevertheless, Ibn Abidin finds this latter view
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unconvincing. Ibn ‘Ābidīn, Hūshiya Radd (1966), 1:405. See
also, Ibn Nujaym, al-Baḥr al-Rā’iq, 1:474; al-Marghīnāī,
al-Hidāya, 1:44