Stop telling Muslim feminists that they’re “picking and choosing” from Islam as if that’s a bad thing and as if that’s not already what scholars have always done in Islam.
Muslim preachers and some Muslim academic scholars of Islam like to portray the Islamic tradition as frozen in the past, some unclear, unspecified past they can’t really put their fingers on or give a timeline of exactly. Think about, for instance, every time we hear the phrase, “Islam does not allow …” or “in Islam, …” An excellent example is that “Islam” or “the Islamic tradition” does not allow women to marry People of the Book or to lead mixed-gender prayer. In this discourse, Islam becomes a monolith suddenly when it comes to explicitly gendered issues. Otherwise, Islam is “diverse” and “nuanced,” and scholars’ disagreements with each other are highlighted, minority opinions from the past employed to serve a contemporary vision of Islam as long as it does not threaten patriarchy, particularly gender hierarchy. (For a recent example of reductive expressions of Islam, please refer to a khutba that Imam Zaid Shakir gave recently where he oversimplifies meanings of “our tradition” and invites wrath again those who challenge this “tradition” of his. Here’s a critique of it.)
“Picking and choosing” (takhayyur in Arabic—discussed in detail below) has always been inherent to Islam. In fact, it is through such a practice that religion, all religions, survive and remain meaningful to their practitioners. In order to make sense of Islam in their specific context and positionality, Muslims have always negotiated and re-negotiated with the Islamic tradition to extract the best possible meanings out of scripture and interpretation. The difference, however, is that unlike the past, today, women and feminists are an active part of the discourse, engaged in the re-negotiation and “cherry-picking” processes, showing that Islam is not just the realm of men or elite scholarly male body but also for others to contribute to. The reason, then, that picking and choosing is viewed as unacceptable today is not that there is anything un-Islamic about it or that it is unprecedented; it is deemed unacceptable solely because Muslim feminists rely on the tool of takhayyur and others similar to it to support their interpretations of Islam. In other words, it is the element of gender in “cherry-picking” that makes it unacceptable and “un-Islamic” in some Muslims’ mind. Because Muslim feminists engage in it as well and even find it useful, “cherry-picking” is un-Islamic; it is not un-Islamic in and of itself.
Chill – I give examples and evidence of all this below.
The Fluidity of the Historical Islamic Tradition
Medieval Muslim jurists developed a system that facilitated a multiplicity of opinions. They employed terms such as takhayyur (picking and choosing) and tarjīḥ (preponderance), among others, specifically to accommodate the fluidity and flexibility of the past legal interpretations. (Before anyone objects, yes: While Medieval Muslim jurists did not coin the term takhayyur, Ahmed Fekry Ibrahim in Pragmatism in Islamic Law: A Social and Intellectual History argues that post-classical Islamic law made increasing use of the principle of takhayyur, which later, modern scholars relied on heavily in their quest for Islamic reform.) Wael Hallaq (in “Can the Shari’a be restored?”) notes that the jurists never questioned the idea of legal pluralism and expected for it to stay, introducing a system that would allow for both scholars and laity to pick the least stringent of the interpretations and rulings available to them. Hallaq shows that pre-modern scholars, jurists and others, never claimed, let alone insisted, that their work, their theories, or the subject matter they were discussing (such as usūl al-fiqh) was fixed or well-defined.
In response to the argument that modern and contemporary scholars and reformers are operating outside the framework of the Islamic tradition, Ahmed Fekry Ibrahim argues that the pragmatism that underlies reformist methodology has precedent in pre-modern Islamic law. He challenges the assumption that pragmatism is a by-product of modernity and demonstrates, instead, that reformists’ strategies are much more grounded in the historical Islamic tradition than some historians—and I add lay Muslims and Muslim preachers—give them credit for. He argues that “jurists resorted to these departures when a commitment to legal methodology could not achieve the desired legal outcome, to wit, the permission of pragmatic eclecticism” (Pragmatism in Islamic Law, p.8.) In other words, Muslim scholars have always departed (“deviated”) from their predecessors when they deemed necessary, such as when their desired outcome was not being accommodated by an adherence to past opinions and conclusions. (There’s another book that people should read. Behnam Sadeghi’s The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition, which shows that it was the conclusion rather than the premise that scholars sought to defend, using whatever tool they could. So, for example, with woman-led prayer, which is the case study the book takes on, the scholars started off with the conclusion/argument that women are prohibited from leading prayer, even of female-only congregations, according to the Ḥanafī and Mālikī schools. More on this here and here.)
Some of the technical terms that illustrate the flexibility of pre-modern Islamic law are as follows: tarjīḥ, talfīq, tatabbu‘ al-rukhaṣ, takhayyur, and maṣlaḥa. Tarjīḥ, or preponderance, is determined by “the strength of evidence or the number of authorities supporting a given view” (Pragmatism in Islamic Law, p. 3). In the pre-modern period, multiple juristic opinions were evaluated, and the opinion with the strongest evidence was chosen or established as the most correct option for any given situation. This doctrine often involved “ad hoc reasoning designed to privilege the result that a given jurist desired” (Pragmatism in Islamic Law, p. 12). The criteria on which tarjīḥ (preponderance) was based rarely included social needs, despite the possibility that, as Ibrahim notes, social needs must have motivated new interpretations (Pragmatism in Islamic Law, p. 195). What I find most striking is that tarjīḥ was an option available not only to jurists but also to the laity (striking because I believe that today’s Muslim scholarly elite treat lay Muslims like they don’t know anything, like lay people’s opinions don’t matter, as though their relationship with Islam/interpretation is irrelevant to the scholars’ interpretations. Lay Muslims are told what to think, and when they disagree with scholars or do what best fits their idea of Islam, they are shamed for disagreeing with scholars—and they shame each other and other lay Muslims for such disagreements as well. For more on how lay Muslims approach authority, see my dissertation – contact me and I’ll send it to you.)
Another term is talfīq, which literally means “to sew two pieces of cloth together.” Talfīq is a form of tatabbu‘ al-rukhaṣ and refers to the combining of two doctrines (Pragmatism in Islamic Law, p. 105). One instance in which this term may be applicable, and is referred to as synchronic talfīq (the doctrine being applied in the same legal transaction) is “when a woman is married off with neither the permission of her guardian (walī) nor the presence of two witnesses…This person would be combining the Mālikī position (considering a marriage contract valid even without witnesses) with the Ḥanafī view (a woman of age and sound mind can marry without a guardian)” (“Takhayyur, Talfiq” in The Oxford Encyclopedia of Islamic Law). In other words, talfīq allows us to combine multiple doctrines or pick and choose from contradictory doctrines even if they are not from the same schools or same scholars (in the example above, the validity of a nikāḥ without witnesses according to Mālikī law and the validity of a nikāḥ without male guardian according to Ḥanafī law) in order to get a conclusion we want or that works best for us.
The term that allowed for social needs to be rendered a legitimate reason for producing new interpretations was tatabbu‘ al-rukhaṣ. Literally “pursuing the dispensations” of the legal schools, the term refers to “the conscious decision to pursue [revisit] the juristic opinion perceived to be most expedient from any of the four Sunni schools,” or from within the same school (Pragmatism in Islamic Law, p. 64). That is, roughly, the most convenient/practical/useful opinion of any of the established legal schools was the correct opinion depending on one’s context and situation. (This should make one wonder, why did they have anything other than “most expedient” opinions to begin with, right? Yeah, no, that’s not how people work, apparently. And to make better sense of this, I’ll have to write about the development of the legal schools another time—they’re not objective, and they took centuries to be developed and arguably remain incomplete). Note that it also says not just outside of one’s legal school but also within. That means that within a legal school, scholars were allowed to disagree with each other. Because the boundaries of the legal schools are actually very unclear. And prior to the rise of the legal schools, the term tatabbu‘ al-rukhaṣ referred to “the selection of the less stringent juristic opinions of mujtahids [people qualified to do ijtihad]” (Pragmatism in Islamic Law, p. 64)—so the least strict, also arguably the most useful. Because it was historically associated with the Qur’anic term ittibā‘ al-hawā (or following one’s whims) and some scholars even used the two terms interchangeably, Ahmed Ibrahim infers that this negative connotation may explain “the tendency among some modern reformers to opt for the use of the term takhayyur [selecting from among a variety of opinions]” instead (Pragmatism in Islamic Law, p. 64). Therefore, takhayyur and tatabbu‘ al-rukhaṣ are used synonymously in the modern period. Takhayyur and tarjīḥ “were mostly exercised within the same school,” whereas “tatabbu’ al-rukhaṣ is more often associated with crossing school boundaries” (Pragmatism in Islamic Law, p. 179).
Takhayyur, literally “picking and choosing” is derived from the root word for “selecting” and refers to the practice of picking and choosing legal rules from a variety of sources, and a variety of legal schools, in order for one to arrive at a conclusion that works best in a given context. In the Ottoman Civil Code (1869-1876), takhayyur was exercised to select opinions deemed most appropriate, not just among the Sunni legal schools but also among non-Sunni schools in order to “accommodate the needs of modern Muslim nation states.”
Read collectively, all of the above terms demonstrate that a principle that was clearly integral to medieval Muslim jurists was a multiplicity of viewpoints from which both scholars and the laity could choose. The purpose (objectively?) was to create ease and accommodate an individual’s convenience or a practical approach to Islam, signaled by the definitions of some of these terms as the “least” or less “stringent opinion.” Pragmatic concerns motivated these doctrines. As new issues and concerns arise, whichever past ideals no longer fit into the tradition are fundamentally permitted to be modified and replaced with better, more suitable ones.
This discussion is not to romanticize the past Islamic tradition. In fact, the use of these tools was regulated. Not all opinions were considered or could be declared valid, and all opinions that one could select from were expected to fall within the boundaries of “valid disagreement,” or khilāf. Nor were these options all considered equally valid or equal in principle. For instance, takhayyur (picking and choosing among multiple sources and interpretations) was considered “a last resort after tarjīḥ [failed] to yield a preference for one legal option.” But which opinions were valid or invalid was always a matter of debate and continues to be so.
My point is that the pre-modern legal scholars often made attempts to ensure that what they perceived as the “best” possible meaning or interpretation won. The idea is that a system has already been put in place that contemporary Muslims can draw upon to accommodate their evolving needs. There is no valid reason to associate the Islamic tradition exclusively with its patriarchal renditions; instead, the tools that pre-modern scholars developed offer valid ways in which they may be utilized even to challenge the historical interpretations. I suggest that these terms, these tools, need not be limited to only patriarchal renderings of Islam, and Muslim feminists, too, can rely on them—and they are only practicing and furthering tradition by disagreeing with past and contemporary scholars because these disagreements were always expected to be there so that people could choose from among them.
While what is “best” or “worst” may change with time and is sometimes politically motivated, or may be a conclusion derived solely by male scholars of the past with no input from contemporary women or men scholars or lay people, the tools in the historical tradition can be and are utilized by contemporary Muslim scholars to arrive at new conclusions. One example is divorce, as Judith Tucker addresses (in In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine, p. 84 specifically): when obtaining divorce, Muslim women have historically relied on legal pluralism, choosing a judge or a legal school based on the desired outcome rather than on their own school. What I am suggesting is that Islamic feminism, as a part of the tradition, now plays a role in these debates about what constitutes “best” and “least stringent” interpretations. Clearly, or perhaps inevitably, with the absence of women’s opinions among the juristic options available to Muslims historically, Muslim women’s contributions today expand the existing multiple viewpoints and options from which one can choose.
Why, then, any reasonable human would ask, is the impression of stagnant, fixed nature of the Islamic tradition on questions of gender so pervasive among mainstream Muslim scholars and lay Muslims? You can read my dissertation for more on this (“Islamic Tradition, Change, and Feminism: The Gendered Non-Negotiable” UT Austin, 2018).
But the important thing is not that picking and choosing has precedence in Islam (because precedence doesn’t and shouldn’t determine the validity of a method or an interpretation—and there’s an interesting pattern that dictates when precedence is essential, by the way, and when it’s not! And you guess it: it has to do with gender. If something challenges gender hierarchy, we need evidence from the past for it; if it doesn’t, it’s coo. More on this another time, though). The important thing is that there’s nothing wrong with picking and choosing. This is actually how religions survive. If all religions were practiced and understood like they were in the specific contexts (as if we can ever truly know, or even guess, that context to begin with), they would never survive—because they wouldn’t be relevant for people, because they wouldn’t have any meaning for people, and why would anyone then practice them?