The Traditional Islam and Women's Issues in the Shafi'ite Books of Islamic Jurisprudence

THE TRADITIONAL ISLAM AND WOMEN’S ISSUES IN THE SHAFI’ITE BOOKS OF ISLAMIC JURISPRUDENCE

Rusli, S.Ag., M.Soc.Sc*

Abstrak

Artikel ini berbicara tentang Islam tradisional, proses penguatan dan isu-isu perempuan dalam kitab-kitab fiqh Syafi’iyah yang terbentuk melalui jaringan yang dimapankan oleh Islam tradisional dalam pesantren-pesantren salaf. Pendekatan yang digunakan dalam melihat proses penguatan Islam tradisional adalah historis, dalam arti bahwa ternyata isu-isu perempuan yang dimapankan selama beberapa generasi hingga saat ini adalah sejalan dengan proses penguatan Islam tradisional yang cenderung konservatif dan literal dalam memahami pesan-pesan keagamaan. Dalam melihat isu-isu perempuan dalam kitab fiqh tersebut, penulis menggunakan metode textual analysis dengan pendekatan feminis yang menegaskan adanya subordinasi perempuan dalam ranah privat dan publik. Tulisan ini menyimpulkan bahwa pemahaman dan penguatan Islam tradisional dalam masyarakat Indonesia terjadi melalui proses “hegemoni” yang dicapai melalui cara “consent”, adanya kesepakatan komunal bahwa ajaran agama yang mereka terima adalah suatu yang taken for granted. Ini diperkuat dengan semakin banyaknya pesantren tradisional yang menggunakan teks-teks fiqh abad pertengahan yang masih diwarnai oleh budaya-budaya dan paradigma patriarkal. Sementara itu, isu-isu keperempuanan yang terdapat dalam kitab-kitab fiqh Syafi’iyah dapat dikatakan cenderung bias gender. Hal ini dapat dilihat pada pandangan fiqh tradisional terhadap perempuan yang secara umum dapat dibagi ke dalam tiga posisi: perempuan setengah nilainya dari laki-laki, perempuan berada dalam kontrol laki-laki dan perempuan adalah makhluk domestik.


Introduction
It is assumed that the penetration of Islam into Muslim minds in Indonesia coincided with the arrival of Islam into that country.[1] It is suggested that the process of Islamic teachings occurred through trade, particularly in coastal areas. In Aceh, for instance, Islam was disseminated by Muslim merchants who established colonies through trade, and then married with local people. As the colonies became strengthened with Muslim merchants, the harbours gradually came under their control. Furthermore, they acquired privileged rights from the local kingdoms. These are political and economical rights. Therefore, Muslim merchants were able to attack Hinduist and Buddhist powers. From here, it appears that the spread of Islam in Aceh seems to be expansionistic.[2]

The spread of Islam in Ternate and Goa Talo was similar to turning to Islam over indigenous culture, in which Islam appeared in the visible form of local culture and then confirmed its structure.[3] In Lombok, on the other hand, a syncretisation process between Islam and local beliefs occurred. From this struggle, adat bersendi syara’ dan syara bersendi adat (customs based on Islam and Islam based on customs), which is a merging of the two similarly strong cultures took place.[4]

Sociologically, before Islam came to the Archipelago, most of the indigenous people of Indonesia were Hindus, Buddhists, and Animists who believed that natural objects have desires and intentions. This is indicated by the fact that there were influential kingdoms, such as Majapahit (Hinduism) and Sriwijaya (Buddhism). As Jones[5] argues, Islam arrived in Indonesia, particularly in Java, in peaceful and sympathetic ways, not by destroying and attacking the local kingdoms and cultures. One example includes the ways the Nine Saints (Wali Sanga) introduced Islam in Java by turning to Islam over indigenous traditions, as it was obviously done by Sunan Kali Jaga. Considering the nature of Islam as compromising and accommodative to local cultures, Islam was easily welcomed and accepted by local people afterwards.[6]

The Islam that came to Indonesia was originally mystical or sufistic (tasawwuf)[7] in orientation.[8] In terms of Islamic law, the Shafi’ite School of Islamic law[9] was highly dominant. This school is known as somewhat traditional in formulating laws and the strict use of reason. This school relies highly on the principle of ihtiyâth (precaution). Therefore, its Islamic laws tends to be literal and scripturalistic. These lead to shaping a framework of thinking that is conservative and less dynamic in the Indonesian Muslim community, particularly with regard to women’s issues. In comparison with other schools of Islamic law,[10] Shafi’ite Islamic jurisprudence has been the basis for dealing with socio-religious problems that the community confronts every day, such as religious observances, transactions, marriage, and political issues.

Educational institutions such as Islamic schools (madrasah), pesantren (an advanced centre of traditional Islamic studies),[11] and informal Islamic study groups usually held in places of prayer or mosques played a significant role in the spread and penetration of sufistic and Shafi’ite Islam into Indonesian Muslim communities. In such institutions, religious sciences ranging from Islamic theology and Islamic laws to Arabic grammars are taught. Nevertheless, the intensity and depth of the instruction differ according to the goals of teaching in each institution.

Studies of traditional Islam, which are held in places of prayer and mosques, are innumerable. The books, which are used, are usually general, simple and practical. This includes Qur’anic exegesis (tafsîr), Islamic laws, Hadith and Islamic theology. For an Islamic community, to learn and understand these sciences is highly important since these sciences help to explain how to strengthen the faith based on the Qur’an and the Sunna of the Prophet, as well as how to perform religious observances, such as prayer, fasting, alms tax, official pilgrimage to Mecca, and other marital issues. To Muslims, the Qur’an is believed to be the universal, eternal reference of life. From this primary source, Islamic sciences come to the surface. Therefore, it is important to find out and understand the contents of the Qur’an. In addition, Hadith is seen as the second reference that serves to explain Qur’anic verses which are still general and ambiguous in meaning. On the other hand, fiqh is the product of legal reasoning of two basic sources of Islam performed by the Muslim jurists.

Shafi’ite Islamic laws, which are taught in places of prayer and mosques, usually rely on brief, small, practical and condensed books including among others, Fath al-Qarîb,[12] Fath al-Mu’în,[13] and Safînah al-Najâ.[14] In the field of Islamic theology, the books which are used rely on the Ash’arite[15] and Maturidite[16] schools of Islamic theology. In the teaching of Qur’anic exegesis, Tafsîr Jalâlain, which was composed by Jalaluddin al-Mahalli and Jalaluddin al-Suyuti, and Tafsîr al-Munîr composed by Nawawi al-Bantani, are employed. At the higher level, Tafsîr al-Qur’ân al-‘Azhîm composed by Ismail Ibn Katsir is also paid great attention. In the field of Hadith, the literature that isused include among others, Riyâdh al-Sâlihîn[17] and Sahîh Bukhârî and Sahîh Muslim. However, in teaching Hadith, teachers (ustadz or kiayi) do not critically analyse the existence and the quality of the Hadith. It frequently occurs that they took without question the Hadiths that are not certainly authentic. This comes with the insufficient understanding of the meaning of the Hadith. Among other institutions, however, the most effective media for disseminating Islamic teachings is an educational institution that is called “pesantren.”

Pesantren
The word “pesantren,” which means places of residence for santris (students), is derived from the word “santri”. According to A. H. Johns,[18] the word ”santri” comes from Tamil language, meaning “teachers of the Holy Book.” Meanwhile, Berg[19] argues that this word comes from the word “shastri” which in Sanskrit means a person who knows about the Holy Books of Hinduism, or a scholar of the Holy Books of Hinduism.” The word “shastri” itself comes from the word “shastra” which means holy books, religious books and knowledge. Another view found in Babad Cirebon, is that the word “santri” comes from Javanese language, that is, “cantrik” which means, “A person who always follows his teacher wherever the teacher goes and stays in order to crave for knowledge from him.”[20] Although there is controversy about the origin and meaning of “santri,” this term generally refers to a person who studied or still studies in the pesantren with a kiayi.[21] At present, the category of santri does not just apply to the graduate of pesantren, but also refers to a Muslim who is committed to studying Islamic knowledge and willingly observing daily rituals.

Looking at the form of pesantren and its system, it is suggested that pesantren comes from India (Hinduism). On the other hand, Bruinessen[22] argues, pesantren is an educational institution that was imported from Egypt. Historically, the concept of pesantren as a place of residence for santris was known in the Hindu traditions of Indonesia before the arrival of Islam. When Islam came and began to expand, pesantren as places of residence was adopted to intensify the dissemination of Islamic teachings.

In the past, santris came to a kiayi to seek Islamic knowledge. They lived in humble houses made from bamboo that they built by themselves on the lands that belonged to a kiayi. This kind of house was in turn known as “pondok” (funduq, which means hotel or inn). The santris worked at the farm and plantations of a kiayi from the morning to the afternoon in providing their basic necessities. In the evening, santris sat in the presence of a kiayi, studying certain classical books, which are called yellow books or “kitab kuning.” A kiayi recited a book, word by word, and gave explanations on certain words and passages that are difficult to understand. Santris took explanatory notes on certain words of their books and memorized them.

After finishing study with a kiayi, santris went to other kiayis to study more advanced books of Islamic knowledge, or to test their knowledge. After being regarded as capable by a kiayi to disseminate Islamic knowledge, santris usually returned to their hometown establishing the circles of traditional Islamic studies in places of prayer and mosques, or developing their parent’s pesantrens, or setting up their own pesantrens. From here, Islamic teachings have evolved and expanded a great deal. In the early times, the educational systems of pesantren did not recognise classes and the media of teaching, as is available nowadays. Santris sat in the presence of a kiayi creating a circle. The level of a santri was assessed by the length of study and the books read.

In later development, there was a struggle to maintain the traditional teaching of Islam on the one hand, and to make a significant change in order to survive on the other hand. From this struggle, a certain kind of pesantren emerged. It maintains the traditional teaching of Islam employing sorogan[23] and wetonan or bandongan[24] systems of teaching. This kind of pesantren also neglects the use of tables and chairs. It was known as pesantren salafiyah (old traditional pesantren). Other pesantrens modified system of teaching by using tables and chairs and incorporating the government curriculum, providing good facilities, and establishing good management. These pesantrens ignore the traditional systems of teaching, such as sorogan and wetonan or bandongan. They are known as pesantren khalaf (modern pesantren). In addition, there is the pesantren that combines the two systems of salafiyah (traditional) and khalaf (modern).

The number of pesantrens in Indonesia have increased. This includes salafiyah, khalaf, or both. In 1999/2000 there were 9,818 pesantrens in Indonesia, in 2000/2001 11,312 pesantrens, and 12,783 pesantrens in 2001/2002. Today, of 12,783 pesantrens, 66.5 % are pesantrens characterised as traditional pesantrens (salaf) that are still concerned with the use of traditional books of Islam written by Islamic scholars from the Middle Ages. Modern pesantren constitute 3.2 % of pesantren. This means that the concern of Indonesian Muslims with this pesantren is not significant. However, the combined pesantren comprises 30.2 % of pesantren. It is estimated that this kind of pesantren will increase in the future.

Yellow Books or “Kitab Kuning”
In the tradition of the community of pesantren, yellow books or “kitab kuning” are seen as an integral part of Islamic building. These are called yellow books or “kitab kuning” since the papers used are yellow. They are also referred to as classical books, or old books, since the books were composed by Islamic scholars from the Middle Ages; bald books or “kitab gundul” because there is no diacritical sign to mark vowelled consonants (harakât) on the letters in these books. It is difficult to understand the content of the book without understanding of the Arabic language and its grammar. In general, yellow books or “kitab kuning” refer to the books that contain Islamic knowledge which were written by Islamic scholars from past times. These include books on Islamic jurisprudence, mystical Islam, Islamic theology, Islamic ethics, Arabic language and grammar, methodology of Islamic laws, Qur’anic exegesis, Hadith literature, and other issues. To kiayis and santris, yellow books or “kitab kuning” are seen as a universal reference for life to address socio-religious problems. Even in one particular community of pesantren, yellow books or “kitab kuning” are seen as sacred, not prone to mistakes, since these books were written down by ulama who were virtuous and morally excellent. Therefore, what is inside the books was taken for granted. Criticism of these books is forbidden.

Occasionally, the yellow books or “kitab kuning” have only a “matn”, a short, brief and dense book that is usually thin and small in size, such as al-Taqrîb and Qurrat al-‘Ayn. Because of its compactness and brevity, ulama needed to give commentaries on this. Their commentary, which is called “syarh”, includes an accurate analysis of certain words and passages, or theological argumentations to support a statement. In addition, there is supercommentary on “syarh”, which is called “hâsyiyah”. This commentary is very detailed and profound. It usually consists of several volumes. In Muslim communities of Indonesia, three kinds of book have circulated and been intensively taught particularly in pesantren. As can be argued, the circulation of yellow books or “kitab kuning” is inseparable from the development and completion of one book, for instance, from a “matn” to “syarh” to “hâsyiyah”.

Within the community of pesantren in Indonesia, it is reported that there are approximately 900 yellow books, which have been used and taught. Yet the frequency of using these books is not the same, depending on the educational policy of the pesantren. Nonetheless, there are certain books that have been similarly used in most pesantrens in Indonesia. These include among other books, Arabic grammar, Islamic theology, Islamic jurisprudence and its methodology, mystical Islam, Islamic ethics, scholastic theology (‘ilm al-kalâm), rhetorics (‘ilm al-bâlagah), Qur’anic exegesis, Hadith and its science, and others. Of all the books, 20 percent are Shafi’ite books of Islamic jurisprudence. It is this kind of book that has dominated the scholastic traditions of pesantren. Since it is acknowledged by the ulama, it is Islamic jurisprudence that is viewed as more important to learn than other Islamic knowledge. The books of Islamic jurisprudence that have been circulated in pesantrens are Shafi’ite in orientation. We seldom find books of Islamic jurisprudence but Shafi’ite books that have been used as textbooks for santri (students of pesantren).

According to a survey by Bruinessen held in 1995, Shafi’ite books of Islamic jurisprudence in Indonesia have been developed from three main sorces; al-Muharrar by Imam Rafi’i (d. 1226 AD), al-Taqrîb by Abu Suja al-Isfahani (d. 1512 AD), and Qurrat al-‘Ayn by Zainuddin al-Malibari (d. 1567 AD). From the book of al-Muharrar, the book of Minhâj al-Tâlibîn written by Abu Zakariya Yahya al-Nawawi (d. 1277 AD), which is a commentary on al-Muharrar, emerged. This book was commented by such Islamic scholars as Ibn Hajar al-Haytami (d. 1565/6 AD) in Tuhfat al-Muhtâj, Syamsuddin al-Ramli (d. 1559/60 AD) in Nihâyat al-Muhtâj, Jalaluddin al-Mahalli (d. 1460 AD) in Kanz al-Râqhibîn, and Zakariya al-Anshari (d. 1520 AD) in Minhâj al-Thullâb. Zakariya al-Anshari also gave his explanatory notes on Minhâj al-Thullâb in Fath al-Wahhâb. This book, Fath al-Wahhâb, was commented on in Hâsyiyah al-Bujairimî (d. 1806 AD) and Hasyiyât al-Jamal (d. 1789/90 AD). The book of al-Taqrîb was given commentaries by thee prominent ulama, such as Khatib al-Syarbini (d. 1569 AD) in al-Iqnâ’, al-Dimasqi (d. 1426 AD) in Kifâyat al-Akhyâr and Ibn Qasim (d. 1512 AD) in Fath al-Qarîb. Fath al-Qarîb was elucidated in Hâsyiyat al-Bâjûrî and Tausyîh ‘Alâ Ibn Qâsim written down by Nawawi al-Bantani. Qurrat al-‘Ayn written by Zainuddin al-Malibari was commented on by himself in Fath al-Mu’în, and by Nawawi al-Bantani in Nihâyat al-Zain. Fath al-Mu’în was thereupon given a commentary by Sayid Bakri (d. 1893 AD) in I’ânat al-Thâlibîn and Alwi al-Saggaf (d. 1916 AD) in Tarsyîh al-Mustafîdîn.

Today, these books are very well known in pesantren, particularly Fath al-Qarîb and Fath al-Mu’în. They have been used not only in the pesantren, but also in places of prayer or mosques outside pesantren. This brief and condensed book consists of a matn which is in the margin of the book, and a commentary (syarh) in the body of the book. In certain pesantrens, the book of Ihyâ Ulûm al-Dîn written by al-Gazali is also paid great attention. In some pesantrens, this book is employed as a main reference for purifying morals and ethics.
In addition to these important books, other books composed by Indonesian ulama have also been used and taught in the teaching of Islamic knowledge, such as Uqûd al-Lujjain by Nawawi al-Bantani, Hidâyat al-Sâlikîn and Sayr al-Sâlikîn, which were written in Malay language by Abdus Shamad al-Palimbani (1788 AD), and Sabîl al-Muhtadîn written in Malay language by Arsyad al-Banjari (1710-1812 AD). In the field of Hadith, literature that has been widely used and taught includes Sahîh al-Bukhârî, Sahîh Muslim, Sunan Abû Dâwûd, Sunan Ibn Mâjah, Sunan al-Turmudzî and Sunan al-Nasâ’î. In addition, Muwaththa’ by Imam Malik, Riyâdh al-Sâlihin, Bulûgh al-Marûm, Subul al-Salâm and Jawâhir al-Bukhârî have also been paid serious attentions.

Women in Shafi’ite School of Islamic Jurisprudence
The term “fiqh” literally means “understanding.” In Islamic terminology, this means legal opinions of the jurists, which are derived from two basic sources, the Qur’an and the Hadith of the Prophet. As an understanding to the Quran and the Hadith of the Prophet, a diversity in legal opinions occurs. This diversity may possibly be caused by the difference in social and political contexts in which the ulama or jurists lived. For ulama who lived near the centre of Hadith circulation, the attachment to the Hadith is quite close and different from those who were far away. Therefore, it is no wonder that Malik was stronger in using the Hadiths than Abu Hanifah, due to the fact that Malik lived at Medina, the centre of Hadith circulation, while Abu Hanifah lived at Iraq, which was distant from Hadith circulation.

As a result, the legal opinions of Abu Hanifah are more liberal than those of Malik. Meanwhile, Shafi’i, whose legal opinions have been used as a basis by the majority of Indonesian Muslims, combined the Hadith and reason. This can be understood since Shafi’i, in addition to being Malik’s pupil, became familiar with Abu Hanifah’s Islamic jurisprudence that was brought by Muhammad bin Hasan al-Shaibani. Moreover, Shafi’i once lived in such cities as Iraq and Egypt, which were far away from the centre of the Hadith circulation. Nevertheless, the Shafi’ite school of Islamic jurisprudence tends to be traditional in the sense that the approach is still more textual than rational.

In general, the Shafi’ite School of Islamic jurisprudence was divided into several sections, such as religious observance, marriage, transaction, and penal and political laws. Fiqh ‘ibâdah is the collection of legal matters relating to issues such as cultic purity (thahârah), prayer (salât), fasting, alms tax (zakât), and official pilgrimage to Mecca. Meanwhile, fiqh munâkahât consists of issues, such as marriage proposal (khithbah), marriage, guardian (wali), divorce, withdrawal from divorce (rujû’), adequate support of wife (nafaqah), nursing of child (hadanah). Islamic penal laws deal with penal or criminal matters such as laws on stealing or robbery, killing, rape, payment of blood money (diyat) and other issues. Finally, fiqh siyâsah (political laws) deal with issues with regard to political problems in Islam, such as the appointment of the president.

1. Fiqh ‘Ibâdah
In the terminology of Islamic jurisprudence, fiqh ‘ibâdah consists of regulations that are not open to all new reinterpretations. This fiqh established legal statements that are not subject to innovations and modifications. Even the innovations and modifications can be regarded as sinful due to an intervention in God’s authority. In general, laws on religious observances consist of issues such as cultic purity, prayer, fasting, alms tax and pilgrimage to Mecca. In this regard, the writer will raise women’s issues in the Shafi’ite school of Islamic jurisprudence that possibly contain a patriarchal bias. (Cf. Table 4)

Menstruation (haidh)
In general, Islamic law still views menstruation objectively. However, there is still a negative perception of women who menstruate. According to Islamic law, there are four animals that menstruate; women, rabbits, bats, and black dogs.[25] This statement seems to have positioned women as being less than human. Because there are animals that menstruate, incorporating women into this group equates women with animals.

In Shafi’ite Islamic jurisprudence, some issues associated with menstruation appear to burden women. Firstly, the shortest menstruation period is one day. If women who do not have regular periods, for instance, menstruate more than one day, but when time of coming out of the bleeding is counted, and does not reach one day, she has to pay for the prayer that she missed. Secondly, the shortest clean period from menses for a woman is fifteen days.[26] If a clean period does not reach 15 days, blood which comes out is called “diseased blood” (istihâdhah). This means Muslim women still have to do prayer every day, but they have to do some wash-ritual (wudhû’) when they want to do prayer. They are not allowed to do one wudhu for two prayers. This condition makes it difficult for some women who do not have regular menstruation periods, as it frequently occurs for teenagers, grown women, women who are close to menopause, and those who use certain kind of contraception, particularly those who live in country in which winter is longer than summer. All these are an indication that there is still a patriarchal bias in formulating regulations on menstruation that sometimes encumber women.

Female announcer of the hour of prayer
“Adzân” literally means “announcement.” In the terminology of Islamic law, adzân means certain words that are announced to notify Muslims about the coming of prayer time. In Shafi’ite Islamic law, one of the requirements for announcing these words is that the announcer should be male. Women are not recommended, or are even prohibited from announcing prayer time.[27] The reason is that in announcing adzân, it is required to raise the voice, while women’s voices are perceived as something that should not be heard. The argumentation for this prohibition is the Hadith narrated by Ibn Umar, “It is not legally right for women to announce adzân”.[28] The fact that women are not allowed to make adzân is an indication that women are still seen as subordinate to men.

Prayer in a group for women
Jalaluddin al-Mahalli points out that prayer in a group for woman is not recommended, but is permitted. According to his opinion, the reason for women not being recommended to pray in a group in the mosque is that women’s position is not as privileged as men’s. In this regard, he comes up with the Qur’an verse, “men are the protectors and maintainers over women.”[29]
Another argumentation which the Shafi’ite jurists came up with is the Hadith narrated by Abu Dawud, “Don’t prevent women from going to mosque, however, their houses are better for them.” In other words, the best place of prayer for women is their house. This legal judgment indicates the unequal treatment that women are subject to in worshipping God.

Female leadership in prayer
In speaking about female leadership in prayers, Shafi’ite books of Islamic law require that one can be appointed as imâm or leader in prayer, if he is Muslim, mature, male and in full possession of his mental faculties. All jurists from the existing schools of Islamic law also come to an agreement that women are not allowed to become leaders in prayer for male groups.[30]
Al-Mahalli holds the view that women are prohibited to become prayer leaders, and men are not allowed to follow them since, in essence, women are half of men. His argument is the Hadith, ”Women are not allowed to become prayer leaders for men.” If a man follows a woman in prayer because of his ignorance that the leader is a woman, then he recognises that the leader is a woman, he must repeat his prayer.[31] This legal judgment indicates that women are seen as half of men, and therefore, are under their control.

Recommended fasting for women
In general, recommended fasting or “puasa sunnah” is defined as not obligatory fasting. This means if a Muslim does not engage in recommended fasting, he or she is not sinful, different from legally binding fasting, which regards those who do not fast as having committed a sin. In carrying out recommended fasting, married women have to ask permission of their husbands.[32] As the Hadith points out, “Women are not allowed to fast, while their husbands are with them, except on husbands’ permission”.[33] This is due to the fact that the rights of the husband must firstly be fulfilled, and women should not neglect an obligation for achieving a recommendation.

I’tikâf in the mosque
In the terminology of Islamic law, i’tikâf, derived from Arabic, means spending time to stay temporarily in the mosque to come close to God, worshipping Him through recommended prayers, reciting the Qur’an, remembrance of God, and other spiritual observances. In Islam, the legal consequence of i’tikâf is recommendation based on the practice of the prophet who usually did an i‘tikâf in the mosque. However, there are rules that should be taken into account including, among others, if a woman already has a husband, she must ask permission from him.[34] A husband even has the right to prevent his wife from going to the mosque and other places.[35] This is a legal opinion in which patriarchal bias is still so strong that women are not free to perform religious observances, but are still under male control.

Khitân or Female circumcision
Khitan is mutilation of the genitals. For men, this practice is almost the same in all Muslim worlds, that is, cutting the foreskin of the penis. Male circumcision is clearly a Muslim tradition. It was definitely approved of by the Prophet and he was himself circumcised. The beneficial health consequences of male circumcision are clearly known. On the other hand, female circumcision differs according to different cultures. In some places, a female circumcision includes partial or complete removal of the clitoris, but in other areas, it could involve excising part or all of the external genitalis and narrowing the vaginal opening.

In the Shafi’ite School of law, female circumcision is obligatory.[36] The legal argument is the Hadith that is collected by Tabrani, “Khitân (circumcision) is recommended for men, and is an honour for women.” Another Hadith is, “A woman used to perform circumcision in Medina. The Prophet said to her: ‘Do not cut severely as that is better for a woman and more desirable for a husband.”[37] Different from male circumcision, female circumcision does not have any beneficial health consequences. Even, partial removal of the clitoris will result in pain for women. This is an indication that women are seen as an object rather than a subject.

Aqiqah or slaughtering sheep
Aqiqah means a male sheep that is slaughtered on the seventh day of childbirth in which the baby’s hair is cut. This practice is recommended by the tradition of the Prophet, which advises Muslims to slaughter two male goats for a male baby, and one goat for a female.[38] It appears that this is a discriminatory practice that leads to creating the perception that women are half value of men.

Official pilgrimage to Mecca for women
Official pilgrimage to Mecca to perform some rituals that are prescribed in the Qur’an and the Hadith is obligatory for a Muslim who has the physical andfinancial ability to get there. In the Shafi’ite School of law, a woman who wants to go for hajj (pilgrimage to Mecca) should be accompanied by her husband or mahram.[39] If she does not have a husband or mahram, she is not obliged to perform hajj. This legal judgement is based on the Hadith; “Women should not go for hajj, if they are not accompanied by their husbands.” Another condition for women is that they are not in their ‘iddat.[40] This legal judgment is an indication that women are still under men’s control and supremacy.

2. Fiqh Munâkahât
One of the important parts of Islamic jurisprudence is marital issue. The importance of this section can be seen with the detailed study devoted to deal with this issue. According to Al-Bajuri,[41] marriage law is the third pillar of Islamic jurisprudence. However, there are some issues in this section, which are still seen as leading to gender inequality, such as arranged marriage, men’s right to divirce, polygamy, and inheritance.

Ijbâr (Arranged Marriage)
Ijbâr, derived from Arabic, means “coercion.” In the terminology of Islamic law, ijbâr means rights of father or grandfather to marry off his daughter who is still a virgin, be she a still little girl or a mature woman, to another man. As Al-Bajuri[42] argues, a father or grandfather is allowed to marry off his daughter against her will. This means that a virgin can be married off without her permission.[43] In spite of all that, asking for her permission is still recommended. This is supported by the Hadith, “A widow is more deserving to her own self, while a virgin is asked for her permisson. Her silence is seen as a permission.” Considering the nature of ijbâr to be coercion, it is perceived as a symbol of familial relation that is undemocratic and unfair, in particular between a father and his daughter.

Men’s right to divorce
Thalâq or divorce is dissolving a marriage contract by saying certain words that literally lead to divorce. In Islamic law, this practice is available in the Qur’an and the Hadith, such as, “A divorce is only permissible twice: after that the parties should either hold together on equitable terms or separate with kindness”[44] and the Hadith, “The permissible thing to which God is more hateful is divorce.”

In the Shafi’ite School of law, the authority to divorce is in the hands of the husband, while the wife does not have the right to divorce her husband.[45] The reason why this is male’s right, according to Al-Zuhaili,[46] first, it is the husband who gave the dowry and adequate support to the wife. Second, in common, a woman is more easily influenced by her feelings than a man. Therefore, if a woman has the right to divorce her husband, she more easily divorces her husband for simple reasons. Furthermore, divorce is usually followed by financial problems, such as payment of delayed dowry and adequate support to with in the time of ‘iddat. Such burdens will make a husband careful of dissolving a marriage contract. The legal judgment that the right to divorce belongs to the husband indicates that women are still under men’s control and supremacy.

Polygamy
Polygamy, in its most popular usage, means that a husband has more than one wife at the same time. Webster's Dictionary defines this practice as "polygyny." If one wife has more than one husband at the same time it is called "polyandry”. Polyandry is a practice that has never been prevalent in human societies and is condemned by all major world religions. In Islamic law, Muslim jurists (fuqahâ’) allow a husband to have more than one wife up until four, if he can treat his wives equally. Jurists prohibit a man from having more than four wives. If a person, who already has four wives, wants to marry again, he must divorce one of his wives.

The Qur’an, the jurists argued, allows just four wives, as it says, “If you fear that you will not act justly towards the orphans, marry such women as seem good to you, two, three, four [at a time]; If you fear lest you may not be perfectly equitable in treating more than one wife, then you shall be content with one.”[47] In the Hadith narrated by Ibnu Umar, “Ghailan al-Dimasqi converted to Islam while he had ten wives before. Thus, his wives also converted to Islam with him. Then, the Prophet ordered him to choose four wives as seem good to him.” However, in fact, no wife will agree with the second marriage. Therefore, this practice is seen as unequal treatment of women.

Inheritance
The issues of inheritance are an important topic in Islamic law. This is a distribution of the remaining estate that belongs to the deceased person amongst the heirs. In Islamic law, women (daughters) have the same legal rights as men to inheritance. Yet, women get half in comparison with men. This is based on the Qur’an, “The male gets twice the share of the female.”[48] From this text, all jurists including among others, Shafi’ite jurists, came to an agreement on this legal judgement. This is an indication that women, in terms of inheritance, are still seen as half value of men.

3. Fiqh Jinâyah wa Siyâsah (Criminal and Political law)
In books of Islamic jurisprudence, fiqh Jinâyah wa Siyâsah is discussed in two separate sections. The first section, fiqh jinâyah (criminal law) deals with issues regarding legal punishment on robbery, fornication, drunk and murder, blood money, witness, and retaliation. Another section, fiqh siyâsah (political law), consists of issues, such as political leadership and issues pertaining to courts of justice. However, there are issues in both sections that are gender-biased including among others, female witness, blood money, female political leadership and female judge. (Cf. Table 6)

Female witnesses
In Islam, males and females have the same capacity to be a witness. However, in some issues, two female witnesses are similar to one male. Even in certain issues, such as marriage, divorce, and penal matters, jurists do not allow women to be witnesses. This is due to the fact that one of the requirements in those issues is maleness. This is based on the Hadith narrated by Al-Zuhri, “Women are not allowed to become witnesses in such issues as marriage, divorce and penal.” From this Hadith, women are prohibited from being a witness in issues, such as rape, accusing a woman or man of rape without bringing a witness, drinking alcoholic drinks, rebellion, apostasy, and avoiding prayers.[49]

Diyyat (blood money)
In the terminology of Islamic law, diyyat is compensation payable to the heirs of the victim by the offender because of murder or the causing of pain, harm, disease, infirmity or injury to any person or the impair, disabling or dismembering of any organ of the body or part thereof of any person without causing his death.[50] This legal judgement is supported by the Qur’an, “Never should a believer kill a believer; but (If it so happens) by mistake, (compensation is due): If one (so) kills a believer, it is ordained that he should free believing slave, and pay compensation to the deceased's family, unless they remit it freely.”[51]

If the victim (i.e. the unintentionally killed) is female, according to Shafi’ite jurists, the diyyat is just half of that if the victim is male.[52] The argument is the Hadith, “Female diyat is half of male diyyat.” Another argument is that men get twice the share of the female, as well as the diyyat. It appears that women are perceived as half of men.

Female political leadership
Shafi’ite jurists argued that women are not allowed to become a president. Theologically, there is a verse that literally indicates that prohibition, “Men are the protector and maintainer of women, because of that through which Allah has favoured one over another, and because of what they spend of their property,”[53] and the Hadith narrated by Abu Bakrah, “No people who appoint a woman as their leader will ever prosper.”[54] From this point, it can be argued that there is discrimination that women suffer in relation to the issue of presidential appointment.

Female Judge
Shafi’ite jurists require that a judge must be male. Women are not allowed to occupy that position based on the Qur’an, “Men are the protector and maintainer of women, because of that through which Allah has favoured one over another, and because of what they spend of their property.”[55] Another argument is that women are weak, imperfect, while the positions of leaders and judge are among the most perfect of positions for which only the most perfect of men are qualified.[56] In addition, there is a belief that women by nature are more emotional and more easily swayed by their feelings and compassion; therefore, they are more appropriate to carry out their most important duty, which is that of motherhood and the nurturing of children, rather than that of being a judge. This legal judgement is an indication that women are still discriminated against.

Conclusion
In this paper, discussion focused on the entry of traditional Islam into the Indonesian Muslim community and its position on women’s issues. The penetration of traditional Islam into the Muslim community in Indonesia gains momentum through educational institution like “pesantren” in which a variety of Islamic knowledge is taught. The pesantren in Indonesia can be classified into three models; salafiyah (traditional), khalaf (modern) and both. At present, salafiyah model of pesantren outnumbers the modern and combined pesantrens. This means that traditional Islam which is taught in salafiyah pesantrens still play a powerful role in shaping Muslim attitudes and behaviours in Indonesia.

This traditional Islam is found in the classical books or “kitab kuning” written by ulama who lived between the eleventh and nineteenth centuries. These books include Islamic theology, Quranic exegesis, Hadith, Islamic ethics and Islamic jurisprudence. Of these books, the books of Islamic jurisprudence is viewed as more important than other Islamic knowledge. In Indonesia, the books of Islamic law that have circulated and been taught in the pesantrens rely on Shafi’ite school of Islamic law, which was founded by Muhammad bin Idris al-Shafi’i.

It has also been argued that women’s issues in the Shafi’ite School of Islamic law are gender-biased. This is indicated by the view that women are seen as an object with half the value of men. They are perceived as being most suited to domestic roles such as childrearing and home duties. This traditonal teaching on women’s issues that have been accepted by most of the Muslims in Indonesia. These religious ideas become strengthened through the process of hegemony. Muslims accept these ideas through “consent” without any coercion from the state. The fact that there are some religious issues that still disadvantage women supports the Marx’s and feminists’ view that religious ideas play a role in perpetuating gender inequality in society.

*Lecturer at STAIN Datokarama Palu, Sulawesi Tengah.
[1] There are controversies about the arrival of Islam to the Archipelago (Indonesia). Most orientalists including among others, Snouck Hurgronye, argue that Islam came to Indonesia in the seventh and thirteenth century of Hijriyah (based on Islamic calendar). This is based on two assumptions; first, it was tantamount to the fall of Baghdad in 656 AD by the ruler of Mongol, which resulted in the escape of Islamic scholars to Archipelago. Second, mystical literatures were found in the seventh century of Hijriyah. Another opinion, which was a report of the seminar on the history of Islam’s arrival to Indonesia held in Medan from 17-20 March 1963, is that Islam came to Indonesia in the first century of Hijriyah or in the seventh or eight century AD. This is based on the establishment of Perlak’s Kingdom in the ninth century. This opinion is supported by Alwi Shihab [Islam Sufistik: “Islam Pertama” dan Pengaruhnya Hingga Kini di Indonesia, (Bandung: Mizan, 2001)]. To his opinion, Orientalists’ opinion cannot be accepted. Islam, he argues, came to Indonesia in the first century of Hijriyah when Sufis merchants from Arab entered China via the western coastal line.
[2] Nasikun et al., Agama dan Perubahan Sosial, (Yogyakarta: LKPSM, 2001), pp. 19-71.
[3] Ibid., pp. 79-126.
[4] Ibid., pp. 185-214.
[5] Sidney Jones, ‘The Contraction and Expansion of the ‘Umat’ and the Role of the Nahdatul Ulama in Indonesia,’ Indonesia, 38, October, Cornell Southeast Asia Program, 1984, p. 3
[6] A.M. Sievers, The Mystical World of Indonesia: Culture and Economic Development in Conflict, (Baltimore: the John Hopkins University Press, 1974), p. 44
[7] The word tasawwuf was derived from the word tasawwafa, which means becoming clean and pure. There are controversies about the origin and meaning of this word. Firstly, the word tasawwuf comes from the word sauf which means “wool.” This is based on the fact that Sufis wore woollen dresses as a symbol of humility and poverty. Therefore, a person who devotes his life in this path is called “Sufi.” Secondly, this word comes form the word ahl al-suffah, devotees seated on the bench of the mosques at Medina in the time of the Prophet, or from saff awwal which means the first row of the faithful at the prayer, or from safâ that means pure and clean. Hence, practices of Sufism focus on purifying the soul and heart by doing spiritual exercise, like dzikr (remembrance of God), prayer, and other rituals [Gibb and Kramers (eds), Shorter Encyclopaedia of Islam, 3rd Edition, (Leiden and New York: E. J. Brill, 1991), p. 579].
[8] Alwi Shihab, Islam Sufistik: “Islam Pertama” dan Pengaruhnya Hingga Kini di Indonesia, (Bandung: Mizan, 2001).
[9] The Shafi’ite School of Islamic law was founded by Muhammad bin Idris al-Shafi’i, who was born in 767 AD in Ghazza, and died in 821 AD. Al-Shafi’i may be described as an eclectic, who took an intermediate path between independent invention of laws and the traditionalism of his period. He is also regarded as the founder of methodology of Islamic jurisprudence.
[10] In the Muslim worlds, there are numerous schools of Islamic law. In the Sunni community, there are four schools that still exist and have been adopted, such as Hanafite, Malikite, Shafi’ite and Hanbalite. In Indonesia, the majority of Muslims have adopted the Shafi’ite School of Islamic law.
[11] The word “pesantren” was mostly used in Java for the first time. However, this word is widely used in outside Java, such as Kalimantan (Borneo), Sulawesi (Celebes) and Moluccas. In Minangkabau, Western Sumatra, this is referred as surau, while in Aceh, this is called dayah.
[12] This book was written by Ibn Qasim (1197 AD), which is an explanation and commentary on the book al-Taqrîb composed by Abu Suja al-Isfahani (1512). This book was very well known in most pesantrens in Indonesia. This is the first book of Islamic jurisprudence that was firstly taught before advancing to the higher level.
[13] This book was written by Zainuddin al-Malibari (1567 AD), which is a commentary on his small book Qurrat al-‘Ayn.
[14] This book was written by Salim bin Abdullah bin Sumayr, an Arabian Muslim scholar who lived in Jakarta in the middle of the nineteenth century.
[15] Ash’arite school of Islamic theology was founded by Abu al-Hasan al-Ash’ari born in Basra (Iraq) in 873 and died in 935. He was a founder of Sunni Islamic theology. He was also known as establishing the doctrine of “acquisition” (kasab) which has close relations with human’s deeds. According to Al-Ash’ari, every human’s deed was created by God despite only lifting one finger, but it is created and human being is responsible for it. This doctrine is a media to illustrate the human’s free will that is inseparable of God’s will. However, human is responsible for what he or she did. Some of his writings are Al-Ibânah fî Usul al-Dayânah, Maqâlât al-Islâmiyyîn, Risâlah fî Ihtisân al-Khaud fî al-Kalâm and Kitâb al-Syarh wa al-Tafsîl.
[16] Maturidite School of theology was founded by Abu Mansur al-Maturidi (d. 944). He is a theologian who was born nearby Samarkand. With Al-Ash’ari and other theologians, he founded scholastic Islamic theology.
[17] Study of the significance of this book of Hadith literature was carried out by Mark Woodward, “Textual Exegesis as Social Commentary: Religious, Social and Political Meanings of Indonesian Translation of Arabic Hadith Texts,” The Journal of Southeast Asian Studies, 52, No. 3, August, 1993, pp. 565-583.
[18] A.H. Johns, “Islam in Southeast Asia,” in Indonesia, No. 19, Cornell Modern Indonesia Project 1975, p. 40.
[19] Quoted in Zamakhsyari Dhofier, Tradisi Pesantren: Studi tentang Pandangan Hidup Kiayi, (Jakarta: LP3ES, 1983), p. 18.
[20] Nurkholis Madjid, Bilik-bilik Pesantren: Sebuah Potret Perjalanan, (Jakarta: Paramadina, 1997), p. 20.
[21] The word kiayi meaning a person who is deeply absorbed in Islamic knowledge, is generally used in the Central and Eastern Java. On the other hand, in western Java, this is called Ajengan, in Northern Sumatra and Jambi, Syaikh, in Minangkabau Abunya and Inyik, in Aceh Tengku and in Lombok Tuanku Guru.
[22] Martin van Bruinessen, “Pesantren dan Kitab Kuning: Pemeliharaan dan Kesinambungan Tradisi Pesantren,” Jurnal Ulumul Qur’an, Vol. 3, No. 4, 1992, p. 82.
[23] Sorogan is a system of teaching in traditional pesantren in which a santri or santris come to a kiayi who recites a particular classical Arabic book, translates it in native language and gives brief explanations of certain words and passages. Santris then repeat the recitation and translate it into their native language word by word in the presence of a kiayi, similar to what has been translated by the kiayi.
[24] Wetonan or bandongan is a system of teaching in traditional pesantren in which a group of santris sit in the presence of a kiayi listening to him reading, translating, explaining, and analysing a yellow book. In this system, santris make explanatory notes on certain words and passages that are difficult to understand.
[25] Al-Nawawi, Al-Majmû’ Syarh al-Muhadzdzab, Vol. 2, (Beirut: Dar al-Fikr, nd), p. 344.
[26]Ibid. p. 334; Ibn Qasim, Fath al-Qarîb, (Indonesia: Surabaya, nd), p. 11; al-Malibari, Fath al-Mu’în, (Semarang: Usaha Keluarga, nd), p.10; al-Dimasqi, Kifâyat al-Akhyâr, Vol.1, (Beirut: Dar al-Fikr, nd), p. 75; al-Bantani, Nihayat al-Zain, (Beirut: Dar el-Fikr, nd), p. 44; al-Anshari, Fath al-Wahhâb, (Beirut: Dar el-Fikr, nd), p. 26.
[27] Sayyid Bakri, I’ânat al-Thâlibîn, Vol. 1, (Beirut: Dar el-Fikr, 1993), p. 268; al-Khatib, Mughnî al-Muhtâj, Vol. 1, (Egypt: Mustafa al-Halabi, nd), p. 1958; Al-Syirazi, Al-Muhadzdzab, Vol. 1, (Beirut: Dar al-Fikr, 1994), p. 81.
[28] Sayyid Sabiq, Fiqh al-Sunnah, Vol.1, (Beirut: Dar al-Fikr, 1983), p. 102.
[29] Qur’an, sura al-Nisa: 228.
[30] Al-Syirazi, op.cit., hlm 136; Ibn Qasim, op.cit., p. 17; al-Bantani, op.cit., p. 73.
[31] Al-Syirazi, op.cit., p. 136; al-Malibari, op.cit., p. 39.
[32] Al-Malibari, op.cit., p. 60.
[33] Al-Syirazi, op.cit., p. 262.
[34] Al-Syirazi, op.cit., p. 262; Sayid Bakri, op.cit., p. 259.
[35] Al-Syirazi, op.cit., p. 92.
[36] Al-Malibari, op.cit., p. 132; Sayid Bakri, op.cit., Vol.4, p. 173; al-Bantani, op.cit., p.358; al-Anshari, op.cit., Vol.2, p. 169; al-Zuhaili, al-Fiqh al-Islâmî wa Adillatuhu, Vol.1 (Beirut: Dar al-Fikr, 1989), p. 306.
[37] Narrated by Abu Dawud.
[38] Al-Dimasqi, op.cit., Vol.2, p. 460; al-Anshari, op.cit., Vol.2, p. 190.
[39] Mahram is unmarriageable, being in a degree of consanguinity precluding marriage [Hans Wher, A Dictionary of Modern Written Arabic, (Libanon: Librarie du Liban, 1974), p.172]
[40] Iddat is legally prescribed period of waiting during which a woman may not remarry after being widowed or divorced (Hans Wher, op.cit., p. 595).
[41] Quoted inSyafiq Hasyim, Hal-hal yang Tak Terpikirkan tentang Isu-isu Keperempuanan dalam Islam, 2nd Edition, (Bandung: Mizan, 2001), p. 141.
[42] Al-Bajuri, Hâsyiyat al-Bâjûrî, Vol. 1, (Beirut: Dar al-Fikr, nd), p. 176.
[43] Al-Shirazi, op.cit., Vol. 2, p. 52; Al-Anshari, op.cit., Vol.2, p. 36; Ibn Qasim, op.cit., p. 45; Al-Dimasqi, op.cit., Vol. 2, p. 53; Al-Saqqaf, Tarsyîh al-Mustafîdîn, (Beirut: Dar al-Fikr, nd), p. 311.
[44] Qur’an, sura al-Baqarah: 229.
[45] Al-Shirazi, op.cit., Vol. 2, p. 109; Bakri, op.cit. Vol. 4, p. 2; Al-Bantani, op.cit., p. 213; Ibn Qasim, op.cit., p. 47; Al-Saqqaf, op.cit., p. 334; Qaylubi and Umairah, Hâsyiyatâni, Vol. 3, (Beirut: Dar al-Fikr, nd), p. 323.
[46] Al-Zuhaili, op.cit., Vol. 7, p. 360.
[47] Qur’an, sura al-Nisa: 3.
[48] Qur’an, sura al-Nisa: 11.
[49] Qaylubi and Umairah, op.cit., Vol. 4, p. 325; Bakri, op.cit.,Vol. 4, p. 274; Al-Dimasqi, op.cit., Vol. 2, p. 282; Ibn Qasim, op.cit., p. 69.
[50] Abdul Aziz Dahlan, et.al., Ensiklopedi Hukum Islam, Vol. 1, (Jakarta: Ichtiar Abadi van Hoeve, 2000), p. 226.
[51] Qur’an, sura al-Nisa: 92.
[52] Al-Syirazi, op.cit.,Vol. 2, p. 278; Al-Khatib, op.cit., Vol. 4, p. 56-7; Bakri, op.cit., Vol. 4, p. 124; Al-Dimasqi, op.cit.,Vol. 2, p. 167; Ibn Qasim, op.cit., p. 54.
[53] Qur’an, sura al-Nisa: 34.
[54] Reported by al-Bukhari, 13/53.
[55] Qur’an, sura al-Nisa: 34.
[56] Al-Syirazi, op.cit.,Vol. 2, p. 407; Al-Malibari, op.cit., p. 137; Bakri, op.cit.,Vol. 4, p. 211; Al-Khatib, op.cit.,Vol. 4, p. 375; Ibn Qasim, op.cit., p. 65; Al-Bantani, op.cit., p. 367; Al-Anshari, op.cit.,Vol. 2, p. 207; Qaylubi and Umairah, op.cit.,Vol. 4, p. 296.