2. Yusuf, Hamza, Can Women Serve as Imams?, Seasons, Spring 2007, at 47–64Google Scholar. This article was written two years after the Wadud Prayer. Shaykh Yusuf adds some insights, but for the most part this article is a brief and eloquent summary of positions already expressed in the lengthy collection of fatwas prohibiting unrestricted female prayer leadership cited below. The article is itself a superb expression of North American traditionalism and its culture of taqlid, meaning the choice to defer legal options to these scholars (talflq) rather than consider one's own legal options by surveying the breadth of already-accepted rulings. Relatedly, see our discussion of consensus infra.

3. Given the number of Muslim women in the workforce in North America and the growing number of Muslim men who are stay at home fathers, the obligation to attend the Friday prayer should be offered to women who work and an exemption on the grounds of caring for children, the elderly, or the infirm at home should be offered to men.

4. See Juliane Hammer's excellent article discussing the role of media in the Prayer, Wadud, Hammer, Juliane, Performing Gender Justice: The 2005 Woman-Led Prayer in New York, 4 Contemporary Islam 91 (2010) (special issue on Muslims and Media)Google Scholar.

5. Id.

6. To be legally precise, women are not forbidden to lead men in prayer. Rather if a man is led in prayer by a woman, his prayer is considered invalid. Nearly all contemporary discussions of unrestricted female prayer leadership, though, discuss it in terms of prohibition and permission. We will follow the latter usage.

7. See our discussion of “westoxification” infra note 14.

8. The majority of the responses to the Wadud Prayer cite the breadth of these legal permissions to the degree that we can accept them as a legal commonplace. See A Collection of Fatwas and Legal Opinion on the Issue of Women Leading Prayers, Living Islam, 03 19, 2005, http://mac.abc.Se/home/onesr/d/itp.html#fwlp [hereinafter Fatwas]Google Scholar. It is not uncommon for women to lead the men in her family, especially if she is the most knowledgeable of religious matters. Even scholars who take a narrow view of woman-led prayer admit it is permissible for her to lead the men in her family in these circumstances: Imam Zaid Shakir writes, “Some modern scholars hold it permissible for a woman to lead men in prayer within the confines of her house, if there are no men qualified to lead the prayer.” Shakir, Zaid, “An Examination of the Issue of Female Prayer Leadership,” in Fatwas at 36, 40Google Scholar; see Al-San'ani, , Subul al-salam 2:76Google Scholar; Az-Zaydan, , al-Mufassal, 1:252Google Scholar. Imam Zaid's prohibition is also published in An Examination of the Issue of Female Prayer Leadership, The Columbia Sourcebook of Muslims in the United States 239 (Curtis, Edward E. IV ed., Colum. Univ. Press 2008)Google Scholar. We will cite Imam Zaid's response from the collection of Fatwas for the reader's ease of reference to the prohibitions.

9. Chtyrbaeva, Janyl, “Kyrgyzstan: Girl Pursues A Difficult Dream—Becoming an Imam,” Radio Free Europe, 03 18, 2005, http://www.rferl.org/content/article/1058031.htmlGoogle Scholar.

10. There were innumerable responses on the web, published in North America, and abroad. No overview could possibly account for them. We will only be able to cover those responses most important for our discussion, which will focus on North American Islam.

11. Prado, Abdennur, About the Friday Prayer led by Amina Wadud, Abdennur Prado, 03 19, 2005, http://abdennurprado.wordpress.com/2005/03/10/about-the-inday-prayer-led-by-amina-wadud/Google Scholar.

12. El-Farouk Khaki, personal correspondence with Laury Silvers, 2006. El-Farouk Khaki is a human rights activist and attorney, founder of Salaam: Queer Muslim community, ED and co-founder of Muslim Canadian Congress, co-founder of el-Tawhid Juma Circle, Chair of APAA, and Host/Coordinator of Salaam/Al-Fatiha International Queer Conference in Toronto 2003.

Globally, the first known communities holding regular woman-led Friday congregational and tarawih prayers were in Johannesburg, South Africa, organized by the Muslim Youth Movement. Mosques in Johannesburg, Capetown, and Durban continue to organize woman-led prayers and have women give the Friday sermon. South Africa's pioneering woman-led prayer movement is widely reported on the web and in print. See Amina Wadud's report of her visit to South Africa in her book Inside the Gender Jihad: Women's Reform in Islam 163 (Oneworld 2006)Google Scholar.

13. Most Muslims interested in gender rights, even a number of Progressive Muslims, are so uncomfortable with homosexuality that they tend to overlook the extensive contributions of Queer communities in the areas of family planning, sexual health, HIV/AIDS in the Muslim community, and female religious authority, most especially in woman-led prayer.

14. Many of the responses were balanced, yet firm. But there were also numerous vitriolic responses, some by scholars and others by popular commentators on the web. See, e.g., the website Living Islam, www.livingislam.org, which has published empathetic and well-argued pieces from scholars such as Ustadha Zaynab Ansari as well as Shaykh G.F. Haddad's misogynist and racist rant quoted in part here.

Shaykh Haddad imagines a spiraling state of chaos. The tone and content of his piece is atypical; but Haddad is a well-regarded religious scholar of Islam, commentator on Islam in the Modern World, and guide with many followers. His response should, if anything, highlight the fairness of the other scholars cited here who no less fervently disapproved of the Wadud Prayer but managed to respond in a manner befitting the Sunna their followers expect them to uphold. Haddad's piece dramatically illustrates the fears of “westoxification” in which the worst of the West is combined with marginal and broadly unacceptable rulings from the Islamic scholarly tradition. He writes,

The “Progressives,” for example, have invented a hijabless prayer for themselves as their New York congregation displayed. One day their female leader might actually make this state of undress the law and frown upon its lingering use by female congregants still possessed of a (male chauvinistic) sense of shame. Later, American “Progressive” illuminatas will insist that the Fatiha be recited in English inside prayer (perhaps allowing Swahili during Kwanzaa), free from racist Arabocentric strictures.

In the end, a Muslim might pray in short shorts behind his sing-songy female imam with the non-Arab accent, after she has graced the congregants with a khutba about “God, praise Her.” She is hijabless “because La ikra ha fıl-Dın” and shakes hands indifferently with men, none of whom minds that she wears “Opium” to the prayer. Another congregant prays with malt liquor on her breath. The man right next to her prays in a junub state but he is not junub according to a zahirı position if there was no ejaculation. He married his granddaughter, which is licit according to a khariji position-temporarily and without witnesses, of course.”

Haddad, G.F., Amina Wadud's Innovation of Misguidance, Living Islam, 11 8, 2005, http://mac.abc.Se/~onesr/d/itp.html#ufawGoogle Scholar.

15. Fatwas, supra note 8.

16. Mohammad Fadel has since suggested that unrestricted prayer leadership could be argued to be a beautiful innovation (bidˋa hasana) on the grounds that respect for women cannot be internalized in the community until men in authority pray under the leadership of women and their relationship is publicly equalized (Mohammad Fadel, personal correspondence with Laury Silvers, Oct. 2009).

In a television interview just prior to the Wadud Prayer, Shaykh Ali Gumaˋa was asked about Dr. Wadudˋs plan to lead a mixed-gender Friday congregational prayer in New York. He responded that unrestricted female prayer leadership is permissible in a community that accepts it, noting that it would not be accepted in Egypt for this reason. We wonder that he did not anticipate the world-wide rejection of the prayer, even among Muslims in North America (whom he may have considered more culturally open to female prayer leadership). Following that global outrage, Gumaˋa released his fatwa—discussed, infra, at note 24 and accompanying text, notes 79 and accompanying text, and note 109 and accompanying text—prohibiting it. We would argue that the second, formal, opinion may not nullify the first. Following his reasoning in his first opinion, female prayer leadership is not permissible where communities reject it. The second opinion was given after the nearly global rejection of female prayer leadership by the Muslim community at the time. Thus rejected by most in the broader community, female prayer leadership would have to be prohibited. But there is more to his second, formal, opinion than that. Noting his concerns over female modesty, we suggest that his second opinion is also an attempt to prevent or quiet fitna in the community. On legal scholars' responsibility to prevent fitna, please see our discussion on modesty, infra notes 79-85 and accompanying text. Shaykh Ali Gumˋa's television interview was reported on in the Arab press:

The Mufti of Egypt, who is affiliated with al-Azhar, stated during an interview televised on Egyptian TV, that in situations where scholars have disagreed, the final decision is left to the people concerned with the issue. If they accept being led by a woman, then this is their business. There is no problem as long as it is appropriate to their customs. If, on the other hand, they reject this [female leadership], then this is their business as well. [He added that] this is what most Muslim countries including Egypt apply, and for that reason it is not expected that this [female leadership of prayer] will occur in Egypt since it goes against the culture and customs of its people and what they have been used to throughout their lives.

Salama ˋal-Hamid, Abd, The Mufti of Egypt, Shaykh ˋAli Gumaˋa: Scholars' Difference of Opinion Permits Doctor Amina Wadud to Lead Men, Al-Arabiyya, 03 16, 2005, http://www.alarabiya.net/articles/2005/03/16/11294.htmlGoogle Scholar.

17. Reda, Nevin, What Would the Prophet Do?, Muslim Wake Up, 03 10, 2005, http://web.archive.org/web/20050315040410/http://www.muslimwakeup.com/main/archives/2005/03/women_imamat.phpGoogle Scholar. Nevin Reda has a Ph.D. in the study of the Qur'an from the University of Toronto and a Masters in Biblical Hebrew Language and Literature. She is a co-founder and coordinator of the Canadian Certificate in Muslim Studies program at Emmanuel College.

18. Laury Silvers was forwarded several versions of his piece as it circulated the rounds of scholars, each time becoming more thoroughly argued. These scholars' unsung contributions to the piece nicely demonstrate the Muslim ideal of scholarly cooperation and humility.

19. See Siddiqi, Muzammil, Women in Leading Posts, Islam Online, 08 11, 2005, http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503545996Google Scholar; Benard, Cheryl, Civil Democratic Islam: Partners, Resources, and Strategies (Rand 2003)Google Scholar; Crane, Robert D., Assessing the Gender Insurgency of Professor Amina Wadud: Strategic, Tactical, and Legal Perspectives, The American Muslim, 03 15, 2005, http://www.theamericanmuslim.org/tam.php/features/articles/muslim_women_leading_prayer/Google Scholar.

20. Crane, supra note 19.

21. The term (gharbzadegi) was coined in Iran in the 1960s by Jalal al-e-Ahmad and taken up by Ayatollah Ruhollah Khomeni. See Mottahedeh, Roy, The Mantle of the Prophet: Religion and Politics in Iran 296 (Oneworld 2000)Google Scholar. The term or concept of “Westoxification,” is broadly in use in North America.

22. Most Muslim scholars represented here are not opposed to female religious authority as long as that authority is defined in terms they interpret to be Islamically sound. Typically this means supporting women's rights in terms of equity and not equality. For them, equity is more adequate to long-held Islamic legal and ethical principles. See Shakir, Zaid, The Social Involvement of Women in Islam, Zaytuna Institute (04 4, 2004), http://www.zaytuna.org/articleDetails.asp?articleID=50Google Scholar. Their widespread influence in North American Islam aside, not all traditionally-oriented Muslims or traditionally-educated Muslim scholars would agree that gender-equity is the only possible traditional model (for instance, see the work of Abdullahi al-Naim, Farid Esack, Ebrahim Moosa and Khaled Abou El Fadl). This article hopes to add to the evidence of such interpretations.

23. Saleh quoted in El-Magd, Abou, Mideast Muslims outraged, see ‘conspiracy’ after woman leads prayers in U.S., The Free Republic (03 19, 2005), http://www.freerepublic.com/focus/f-news/1366312/postsGoogle Scholar.

24. Shaykh Ali Jumuˋa [Gumaˋa], in Fatwas, supra note 8, at 28. The Shaykh's name has been spelled in different ways in various English sources, including as Jumˋa, Gumˋa, Jumaa, and Jumaˋa.

25. Muslim Women Can Lead Some Prayers: Scholars, Islam Online, 03 12, 2005, http://www.islamonline.net/English/News/2005-03/12/article06.shtmlGoogle Scholar. For example, in its fatwa bank, Islam Online also provided the opinion of Imam Ahmad Kutty, from the Islamic Institute of Toronto, Ontario, whose prohibition was significant for being balanced in tone and content Islam Online, (Mar. 13, 2005), http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503546384.

26. Mattson, Ingrid, Can a Woman be an Imam? Debating Form and Function in Muslim Women's Leadership, in The Columbia Sourcebook of Muslims in the United States, supra note 8, at 255–60Google Scholar.

27. Id. at 260-63.

28. Silvers, Laury, Islamic Jurisprudence, ‘Civil’ Disobedience, and Woman-Led Prayer, in The Columbia Sourcebook of Muslims in the United States, supra note 8, at 246Google Scholar.

29. Shakir, Zaid, American Muslims, Human Rights, and the Challenge of September 11^th, in Scattered Pictures: Reflections of an American Muslim 151 (Kindle, ed., NID Publishers 2007)Google Scholar.

30. Id.

31. Fadl, Khaled Abou El, On Women Leading Prayer, Scholar of the House (2005), http://www.scholarofthehouse.org/onwolepr.htmlGoogle Scholar.

32. Taylor, Pamela K., Score One More for Women Imams, Beliefnet, 2006, http://www.beliefhet.com/Faiths/Islam/2006/03/Score-One-More-For-Women-Imams.aspxGoogle Scholar.

33. Prado, supra note 11. Manuel Escudero provided text of his opinion to us for use in this article, stating: “There are no ordained imams in Islam. The imam, the person leading the prayer, comes up as the choice of the group being led in prayer. And if the group chooses a woman, there is nothing in the Qur'an that would negate that ruling” (Manuel Escudero, personal correspondence with Laury Silvers, Aug. 20-21, 2010). Note that Escudero's reasoning is similar to Shakyh Ali Gumaˋa's original opinion and that of Khaled Abou El Fadl.

34. Id.

35. id. See also the film, The Noble Struggle of Amina Wadud (Elli Safari 2007)Google Scholar that documents the New York City prayer, but also the Barcelona conference.

36. Reda, supra note 17.

37. Id.

38. Azam, Hina, A Critique of the Argument for Woman-led Friday Prayers, AltMuslim, 03 18, 2005, http://www.altmuslim.eom/a/a/ay2194/Google Scholar.

39. Ibish, Hussein, Erudition as Dead End: Hina Azam and the Perils of Legal Dogmatism, Ibishblog, 03 25, 2005, http://www.ibishblog.com/erudition_dead_end_hina_azam_and_perils_legal_dogmatismGoogle Scholar.

40. Safi, Omid, Shattering the Idol of Spiritual Patriarchy, Progressive Muslim Union of North America, 04 15, 2005, http://web.archive.Org/web/20050427060150/http://www.pmuna.org/archives/2005/04/pmu_prayer_init_1.phpGoogle Scholar.

41. Id.

42. Id. The distinctions “ritual” versus “spiritual” authority are our own, but we believe are a correct analysis of San's argument.

43. Jones, Vanessa E., Let us Pray Together: More Muslim women are fighting for equal treatment in the mosque, Boston Globe, 02 24, 2005, available at http://www.boston.com/news/globe/living/articles/2005/02/24/let_us_pray_together/Google Scholar.

44. The two positions are not logically-opposed if one sees women's rights in terms of gender-equitable relations. See Zaid Shakir, American Muslims, supra note 29; Hina Azam, supra note 37; Ansari, Zaynab, Dr. Amina Wadud and the Progressive Muslims: Some Reflections on Woman-Led Prayer, Living Islam, 08 18, 2005, www.livingislam.org/k/awpm_e.htmGoogle Scholar.

45. ISNA, Women Friendly Mosque Initiative, ISNA, http://www.isna.net/Leadership/pages/Resources-Womens-Involvement.aspx (visited Feb. 19, 2010).

46. Many woman-led prayer groups keep a low-profile; thus, it is difficult to give an accurate report of their numbers and locations, but the Woman Imam Network's Meetup.com page demonstrates that these prayers continue to be organized globally. Woman Imam's Network, Meetup Groups, MeetUp, http://win.meetup.com/ (visited Feb. 19, 2010).

47. Rushd, Ibn, Abo al-Walid Muhammad B. Ahmad, Bidayat al-Mujtahid Wa Nihayat al-Muqtasid 339 (Dar al-Salam 1416AH)Google Scholar.

48. See Shakir, Fatwas, supra note 8, at 39-40.

49. Ibn Rushd, supra note 46, at 340.

50. See, e.g., Qur'an 2:43 & 2:110.

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55. al-ˋAdhimabadi, Imam Muhammad, ˋAwn al-Ma'bud Sharh Sunan Abi Dawud 2:300–301 (Dar al-Kitab al-ˋArabi)Google Scholar; Muhammad B. Sa'D Az-Zuhri, At-Tabaqat al-Kubra 8:460 (Dar Ihya at-Tarath al-ˋArabi)Google Scholar. See also Shakir, Fatwas, supra note 8, at 36.

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57. Supra note 46.

58. For a discussion on the four schools use of Hadith in legal thinking, see Brown, Jonathan A.C., Hadith: Muhammad's Legacy in the Medieval and Modern World 97 (Oneworld 2009)Google Scholar. For an introduction to the history of Islamic Law and its major features, see Weiss, Bernard, The Spirit of Islamic Law (Univ. Ga. Press 2006)Google Scholar.

59. See Brown, supra note 56, at 150-72 for a discussion of the role of Hadith in Islamic jurisprudence; Shakir, Fatwas, supra note 8, at 39.

60. Shakir, Fatwas, supra note 8, at 36.

61. Ibn Rushd, Bidayat, supra note 46, at 340.

62. Id.

63. For a complete discussion of the possible readings of the Hadith see Shakir, Fatwas, supra note 8, at 36-39.

64. Shakir, Fatwas, supra note 8, at 40. Perhaps al-Muzani was comfortable with women's ability to bear religious authority since his sister was a well-known scholar in her own right who had spent a good deal of time in Shafiˋi's circle? Imam Abu Thawr was a senior companion of al-Shafiˋi and a transmitter of Shafiˋi's “old” corpus of fatwas.

65. Imam Abu Thawr's argument and position is presented in Al-Mawardi, Abul-Hasan Ali B. Muhammad B. Habib, Al-Hawi Al-Kabir Fi Fiqh Madhhab Al-Imam Al-Shafi'i 2/326 (Dar al-Fikr n.d.)Google Scholar.

66. Ibn al-ˋArabi, known as “The Greatest Shaykh” of Sufism, was also a scholar in other religious disciplines, such as theology, jurisprudence, and philosophy. It has been suggested that he may have been formulating a distinct school of legal thinking at the time of his death. See Chodkiewicz, Michel, An Ocean Without Shore: Ibn ˋArabi, the Book, and the Law (Streight, David trans., Suny Press 1993)Google Scholar.

67. See Hazm, Ibn, ’Ali B. Ahmad B. Saˋid, al-Fasil fi al-Milal Wa al-Ahwa’ Wa al-Nihal 5/119 (Dar al-Jeel 1996)Google Scholar. These scholars accepted that only men were sent specifically as messengers who bore a new Law, as stated in the verse, “Before you, We only sent men (rijalan) whom we inspired” (Qur'an 21:7). But they also accepted that women were among those chosen to be prophets who more broadly serve as reminders of God, as stated in verses alluding that certain women received revelation (wahy). See, e.g., Qur'an 28:7, 19:17-18, and 3:42-43. Not all of the four scholars accepted all of the six women mentioned.

68. Al-ˋArabi, Abu ˋAbd Allah Muhammad B. ˋAli B. Muhammad Ibn, Al-Futuhat Al-Makiyya 1/481 (Scanned Manuscript)Google Scholar.

69. Safi, supra note 39.

70. The first generations of Muslims were no different. The first four Caliphs and early jurists were known to have ruled first and foremost with the well-being of the society in mind. For instance, when Muslims had recently conquered expansive territories and were now governing a diverse population of non-Muslims and non-Arabs, the third Caliph Umar ibn al-Khattab (d. 644) prohibited Muslim men from marrying Christian and Jewish women. Although the practice is permitted in the Qu'ran, Umar feared that due to the specific circumstances at hand the appeal of newly accessible non-Muslim women would come at the expense of Muslim women. The Caliphs and early jurists' practice was formalized by later scholars as siyasa sharˋiyya or istislah, meaning literally to manage people's affairs using the Sharˋa and seeking out what would be most beneficial and wholesome for them. See al-Tabari's discussion of verse 2:221 in 3 Al-Tabarj, Abu Jafar Muhammad B. Jarir, Jamiˋ al-Bayan ˋan TaˋWil Ay Al-Quran (Tafsir al-Tabari) 711 (Hajr 2001)Google Scholar.

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72. Al-Zarqa, , Muhammad, Ahmed, Sharh Al-Qawa'Id Al-Fiqhiyyah 227 (Dar al-Qalam, 1409AH/1989)Google Scholar.

73. Al-Qaradawi, Fatwas, supra note 8, at 33-34.

74. Shaykh Abdullah bin Bayyah, , Muslims Living in Non-Muslim Lands (Yusuf, Hamza trans.), in The Modern Religion, http://www.themodernreligion.com/world/muslims-living.html (visited Feb. 22, 2010)Google Scholar.

75. Id.

76. Id.

77. Id. Only the ritual prayer aspect of the Friday service must be performed at its appointed time.

78. See Katz, Marion, The Corruption of the Times and the Mutability of the Shari'a, 28 Cardozo L. Rev. 171 (2006)Google Scholar.

79. Prado, supra note 11.

80. Al-Qaradawi, Fatwas, supra note 8, at 31.

81. Id.

82. See the Istiqlal mosque in Jakarta, Indonesia and the Tajmouati mosque in Fez, Morocco for examples of mosques in which men and women pray side by side with a low barrier or mashrabiyya screen between them. See the Clairmont Road Mosque in Capetown, South Africa for an example of a mosque in which men and women pray side by side with only rope separating the two groups.

83. See the Sultan Ahmet mosque in Istanbul, Turkey or the Hassan II mosque in Casablanca, Morocco for an example of a mosque in which women pray in a gallery above the men. See the al-Husayn mosque in Cairo, Egypt for a mosque in which women pray in a separate room altogether. Many mosques in North America are located in former homes or street-front businesses, the architecture of which may demand that men and women pray in separate rooms. In these cases, the imam's voice is piped in via video and/or loudspeaker.

84. Recently, the presidency of the two Holy Mosques in Saudi Arabia (the Great Mosque in Mecca and the Prophet's mosque in Medina) announced that women would be separated from men during the circumambulation only. The uproar that followed from women and men alike from around the Muslim world forced them to rescind their decision. Badran, Margot, Rites and Rights: the Mosque Movement From Mecca to Main Street, The American Muslim, 01 9, 2007, http://theamericanmuslim.org/tam.php/features/articles/rites_and_rights_the_mosque_movement_from_mecca_to_main_street/0012597Google Scholar. It is not unusual for men and women to pray “Mecca Style” in other locales when, for instance, a mosque congregation overflows into the street during an ˋeid prayer. For instance, see photographs of the ˋeid prayer at Mustafa Mahmoud Square in Mohandessin, Cairo, Egypt in 2008, http://www.casafree.com/modules/actualite-en-photo/international/aid-al-adha-2008-dans-le-monde-musulman/Eid-al-adha2008-035.jpg.

85. Abou El Fadl, supra note 30.

86. Yusuf, , Can Women Serve as Imams, supra note 2, at 49Google Scholar.

87. Shakir, Fatwas, supra note 8, at note 49. For instance, Imam Zaid notes that rejecting binding consensus is considered disbelief.

88. Id.

89. Ali, Abdullah bin Hamid, Scholarly Consensus: Ijma ˋBetween Use and Misuse, Lampost Productions 11, http://www.lamppostproductions.com/node/249 (visited Feb. 22, 2010)Google Scholar.

90. Id. at 15.

91. Id. at 14.

92. Id. at 21.

93. Yusuf, , Can Women Serve as Imams, supra note 2, at 49Google Scholar.

94. Abdullah bin Hamid Ali, Fatwas, supra note 8, at 16; Shakir, id. at 40. Abdullah bin Hamid Ali only addresses Tabari's ruling.

95. Shakir, id. at 41.

96. Jonathan Brown notes that the soundness of the very Hadith that Sunni scholars use to establish the notion of consensus was circularly established by consensus. Because there are no grounds for the notion of consensus in the Qur'an, Sunni scholars look to Hadith for justification. But the Hadith on which the notion of consensus is founded is somewhat unreliable. There is some weakness in every one of its transmissions. Thus Sunni scholars declared the Hadith “sound” on the basis of their consensus that it was sound. Other arguments were ultimately made to establish its trustworthiness, but it should be noted that the basis of the notion that consensus is equal in certainty to the Qur'an and Hadith relies on circular reasoning. Brown, supra note 56, at 110.

97. al-Nawawi, Yahya B. Sharaf al-Din, An-Nawawi‘s Forty Hadiths Hadith # 6, http://www.40hadith.com/40hadith_en.htm (visited Feb 24, 2010)Google Scholar.

98. Shakir, supra note 8, at 35.

99. Ibn al-'Arabi, supra note 66, at 1/481.

100. Al-Qaradawi, Fatwas, supra note 8, at 32-33.

101. Id. at 33.

102. See Hajar, Ibn (d. 1448) “Women and men are equal [halves] with regards to commands, unless specified otherwise.” Ibn Hajar, Abul-Fadl Ahmad B. Ali B. Muhammad, Fath Al-Bari Fi Sharh Sahih Al-Bukhari Hadith # 153, p. 254 (Dar al-Maˋrifa n.d.)Google Scholar.

See Al-Khattabi (d. 998) “[From this hadith; ‘Women and men are equal halves,’ we deduce that:] if the discourse is in the masculine form, then it also applies to women except where evidence shows that men were specifically intended.” This was stated in al-Khattabi's commentary on the Hadith in Abu Dawud's collection: “The Messenger of God (peace be upon him) was asked what a man should do if he experienced wetness [in his under-garments] without remembering any nocturnal dreams, to which the Prophet answered that he should bathe. When asked by Umm Salim if the same applies to women he replied: “Yes, for women are the equal halves of men.” Al-Khattabi, Hamad B. Muhammad B. Ibrahim, MaˋAlim Al-Sunan Fi Sharh Sahih Abu Dawud, Hadith # 77.

See Ibn al-Qayyim (d. 1350) who, citing Qu'rab 4:11, states: “[I]f injunctions are directed in the masculine form without being coupled to the feminine, then it is addressed to both men and women because the masculine form is used for them both, such as [when God says]: ‘if he [the deceased] left brothers, then the mother takes a sixth.’ [i.e., the same rule applies if ‘she’ was survived by only ‘sisters,’ then the mother still takes a sixth].” Al-Qayyim, Ibn, Muhammad B. Abi Bakr B. Ayyoub, Flam Al-MuwaqqiniˋIn ˋAn Rabb Al-‘Alamin p. 1/92 (Dar al-Jeel 1973)Google Scholar. Ibn al-Qayyim mentioned several other examples; however, when translated to English, they become meaningless in this regard since they become phrased in a gender-neutral form. For example: “The witnesses should not refuse when they are called on (for evidence).”

See Ibn Hazm (d. 1064):

There is no disagreement amongst Arabs, or anyone fluent in their language, that men and women, when together, are addressed, or spoken of, in the same manner used when those being addressed or spoken of are men alone. Therefore it is correct to say that there is no “masculine-only” term for men, except for that which is also used to refer to both men and women, unless additional [contextual] evidence shows that men were intended alone. Therefore, it is impermissible to restrict the Discourse to part of whom it is directed to except in the presence of [evidence from] nus (evident text), or ˋijma (scholarly consensus). It follows that since the term “Do” applies to both male and female alike, and since the Messenger of God, peace be upon him, was sent to both men and women, and since the Discourse of God and his Prophet to men and women is the same discourse, it is not permissible to restrict any of this to men alone except in the presence of nus, or ˋijma. If they argue: “Why, that means women are addressed and required to learn about their religion and command what is good and prohibit what is wrong!” We'll say, “Yes and it's an obligation for them as it is for men …” Hazm, Ibn,‘Ali B. Ahmad B. Sa’id, Al-Ihkam Fi Usul Al-Ahkam 3/80 (Dar al-Afaq al-Jadida n.d.)Google Scholar.

103. Ibn Hajar, supra note 100, at 254.

104. This Hadith has been narrated by Umm Salama Hind bt. Abi Umayya and authenticated by Muslim (d. 875), Sahir Muslim # 2295, al-Dorar (2009), www.dorar.net; and by Al-Qaradawi, Yusuf, Min Fiqh Al-Dawla fi al-Islam 161 (Dar al-Shuruq, 1997) (emphasis added)Google Scholar.

105. See, e.g., Fadlallah, Ayatollah Sayyed Muhammad Hussein, Fatwa regarding Female Circumcision, Bayyant (12 12, 2007), http://english.bayynat.org.lb/news/12072007.htm (Shia)Google Scholar; Egyptian Ban on Female Circumcision Upheld, Bbc (12 28, 1997), http://news.bbc.co.Uk/2/hi/42914.stmGoogle Scholar, (Sunni, Shaykh Mohammed Sayyed Tantawi); Somalia: Fatwa against FGM, Women Living Under Muslim Laws (2005), http://www.wluml.org/english/newsfulltxt.shtml?cmd[157]=x-157-412165, (Somalian Clerics)Google Scholar.

106. The Moroccan Family Code (Mudawana), Human Rights Education (Rights, Global trans., 2005), http://www.hrea.org/moudawana.htmlGoogle Scholar.

107. Badran, Margot, Feminist Activism and Reform of Muslim Personal Status Laws: A look at Egypt and Morocco, Jura Gentium (01 7, 2008), http://www.juragentium.unifi.it/en/surveys/women/activism.htmGoogle Scholar; Palestine: Female Judges Give Palestinian Women Hope of Fair Hearings, Awid (03 16, 2009), http://www.awid.org/Issues-and-Analysis/Libraiy/Palestine-Female-judges-give-Palestinian-women-hope-of-fair-hearings (Sheik Tayseer al-Tamimi)Google Scholar.

108. Morocco women preachers appointed, Bbc (05 4, 2006), http://news.bbc.co.Uk/2/hi/africa/4971792.stm(Mourchidat)Google Scholar.

109. Mudawana Code, supra note 104; Gumaˋa, Fatwas, supra note 8; Palestine, supra note 107 (presenting the view of Sheik Tayseer al-Tamimi); Mourchidat, supra note 106.

110. Supra note 102.

111. Reported by Timothy J. Gianotti (who attended the meeting in personal correspondence with Laury Silvers (Feb. 2010) (on file with author).