Journal of the American Oriental Society 130.1 (2010) 1 Debates on Women’s Status as Judges and Witnesses in Post-Formative Islamic Law Karen Bauer The Institute of Ismaili Studies, London introduction The question of whether any consistent logic guided doctrine on women as judges and witnesses in post-formative Islamic law has been particularly vexing for contemporary schol- ars. 1 Although women are disadvantaged in almost every aspect of rules on testimony and judging, their disadvantage is not consistent: two women do not always equal one man; in some cases they can testify without men; and some schools allow them to act as judges. These rules would seem to relect the jurists’ ideas of women’s mental capacities. Moham- mad Fadel has argued that jurists must have seen women’s minds as equal to men’s, for any claim that women were generally intellectually deicient would be inconsistent with the doctrine that permitted them, in certain intellectual arenas, to act equally to men. 2 Judith Tucker notes, however, that although some anafī jurists say that women are not deicient in rationality (ʿaql), they assert that they are unable to remember as well as men; she character- izes this as “a somewhat contradictory moment.” 3 In this article, I contextualize the jurists’ discourse on women as judges and witnesses by examining it diachronically, highlighting prominent arguments as they develop through time. 4 I suggest that rulings that enable wom- en to act equally to men do not necessarily relect the formative jurists’ ideas of women’s mental capacity, but often the only explanations for the rulings are given by post-formative jurists, which are neither uniform nor static. A diachronic analysis reveals that there are some elements of the juridical discourse that are constant. Jurists share a premise of certain inequalities between the sexes: they explain 1. Some authors who consider the question of women’s value as witnesses are Asma Sayeed, “Gender and Legal Authority: An Examination of Early Juristic Opposition to Women’s adīth Transmission,” Islamic Law and Society 16 (2009): 115–50; Mathieu Tillier, “Women before the Qāī under the Abbasids,” Islamic Law and Society 16 (2009): 280–301; Judith Tucker, Women, Family, and Gender in Islamic Law (Cambridge: Cambridge Univ. Press, 2008); Ron Shaham, “Women as Expert Witnesses in Pre-Modern Islamic Courts,” in Law, Custom, and Statute in the Muslim World: Studies in Honor of Aharon Layish, ed. Ron Shaham (Leiden: Brill, 2007), 41–65; Mohammad Fadel, “Two Women, One Man: Knowledge, Power, and Gender in Medieval Sunni Legal Thought,” IJMES 29 (1997): 185–204; and Abdulaziz Sachedina, “Woman Half-The-Man? Crisis of Male Epistemology in Islamic Jurisprudence,” from his web site, http://www.people.virgina.edu/~aas/article/article1.htm. Many authors touch on the subject of women as judges in Islamic law, but to my knowledge none has examined it in depth. 2. Fadel, “Two Women, One Man,” 194. 3. Tucker, Women, Family, and Gender, 141. 4. I thus agree with Julie Meisami’s suggestion to focus on authorial intent and genre rather than to view the discourse from the perspective of gender alone. Meisami, “Writing Medieval Women: Representations and Mis- representations,” in Writing and Representation in Medieval Islam: Muslim Horizons, ed. Julia Bray (Abingdon: Routledge, 2006), 74. Author’s note: Many people have helped me in the process of writing this article. I would especially like to thank Patricia Crone, Behnam Sadeghi, Michael Cook, Christopher Melchert, and Mohammad Fadel for their insightful comments on earlier drafts. My thanks also to Hossein Modarressi, in whose course I began research on women judg- es, Peri Bearman for her judicious comments and editing, and the anonymous reviewers for their helpful feedback.