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DEBATING WOMEN’S MOSQUE ACCESS IN SIXTEENTH-CENTURY MECCA

What is probably the most extensive and explicit legal and political debate over women’s mosque access in premodern Islamic history was stimulated by an incident in 937 AH/1530 CE, when the authorities in Mecca decided to exclude women from the Sacred Mosque during the nighttime hours. As we shall see, this episode is reflected in two long-published works by the prominent Shāfiʿī jurist Ibn Ḥajar al-Haytamī (d. 974/1567), who sketches the sequence of events in one work and analyzes the legal issues involved in a lengthy fatwa.¹ However, al-Haytamī does not fully clarify the nature of the exclusionary policy or its historical and political context. These are elucidated by a unique manuscript preserved in Cairo, a work by Aḥmad ibn ʿAbd al-Ghaffār. This remarkable document is an extraordinarily lengthy (121-folio) personal account, legal polemic, and fatwa collection documenting the decision to exclude women from the mosque during the nighttime, the reactions of the legal scholars, and the author’s passionate efforts to reverse the ban. In terms of genre, it is sui generis; at many points, it abandons conventional forms of legal writing in order to address a current issue with copious firsthand testimony and circumstantial detail.

THE MANUSCRIPT AND ITS CONTEXT

The manuscript itself is undated. However, the final page contains a marginal notation that the text has been checked against the original and provided with emendations (iṣlāḥāt) “in the handwriting of its author, may God Most High preserve him, grant blessings to his life, and perpetuate his benefit and that of his knowledge.”2 It would thus seem that the copy was produced in the lifetime of its author and under his supervision. Ibn ʿAbd al-Ghaffār’s precise death date is unknown;³ however, he apparently died before 966/1558–59, the date of al-Jazīrī’s ʿUmdat al-ṣafwa, which refers to him as deceased.⁴

The earliest available biographical entry on Ibn ʿAbd al-Ghaffār was produced by Badr al-Dīn al-Qarāfī (d. ca. 1008/1600). It gives his full name as Aḥmad ibn Mūsā Sharaf al-Dīn⁵ ibn ʿAbd al-Ghaffār. He is stated to have been born in Egypt and to have settled in Medina, where he devoted himself to acts of piety (ʿakafa ʿalā al-ṭāʿa) and made frequent trips to visit the Meccan sanctuary.⁶ The entry describes him as a scholar of high caliber who distinguished himself among his contemporaries for his achievements in multiple fields (nādirat al-zamān fī’l-funūn). After settling in the Ḥijāz, he gave instruction in several (unspecified) disciplines and became the leading authority to whom the people of the region resorted (aqraʾa al-ʿulūm wa-ṣāra al-marjaʿ fī tilka al-amākin al-muṭahhara). He numbered among his students the prominent jurist Muḥammad al-Ḥaṭṭāb (d. 954/1547), whose commentary on the classic manual Mukhtaṣar Khalīl became a standard work in Mālikī law.

As listed by al-Qarāfī, Ibn ʿAbd al-Ghaffār’s works suggest that his main focus was on mathematics and its application in Islamic law; for instance, he produced a work on the calculation of inheritance shares in cases where one or more heirs die before the division of the original estate (al-munāsakha), a difficult problem in the already complex system of fractional shares established by the Qur’an.7 The nature of Ibn ʿAbd al-Ghaffār’s interests is also suggested by a passing reference in a biographical notice on Khalīl al-Ḥalabī, which states that the latter traveled to Cairo in the year 924/1517 “and there devoted himself to the study of inheritance shares, arithmetic, the calculation of prayer times, geometry, music, and medicine under the supervision of Shaykh Aḥmad ibn ʿAbd al-Ghaffār.”⁸ However, the fact that Ibn ʿAbd al-Ghaffār is known as a teacher of al-Ḥaṭṭāb suggests a legal dimension to his teaching, and indeed the latter cites Ibn ʿAbd al-Ghaffār’s legal opinions several times in his work.⁹

Another source suggests that Ibn ʿAbd al-Ghaffār had a lively interest in the social and legal controversies of Mecca in his time. He was the author of a circumstantial account and polemical analysis of a controversy over the legality of coffee in Mecca in 917/1511.¹⁰ This work, whose original title appears to be unknown, was abridged and revised by his contemporary ʿAbd al-Qādir ibn Muḥammad al-Jazīrī in his well-known work ʿUmdat al-ṣafwa fī ḥall al-qahwa. In the introduction to his own book al-Jazīrī praises Ibn ʿAbd al-Ghaffār’s work in defense of the permissibility of coffee, but observes that he “was so expansive in expressing his refutation of the opponent … and exposed so many copious and choice proofs that, because of the extensiveness and prolixity of the statements he presented, it makes tedium and boredom on the part of those who peruse it almost inevitable.”¹¹ Although some elements of the resulting work clearly originate with al-Jazīrī, both his introduction and the many occasions in the body of the text where he explicitly resumes his citation of Ibn ʿAbd al-Ghaffār’s text suggest that it substantially reproduces the original composition.

The basic elements of this work, although unusual in terms of the ordinary genres of Islamic legal (or historical) writing, are very much reminiscent of the work on women’s access to the Great Mosque of Mecca that interests us here. It combines a detailed narrative of the origins of the controversy and its political context, transcripts of key documents (including the official “minutes,” maḥḍar, of a council of scholars convened by the authorities, as well as partial transcriptions of fatwas solicited by both sides), and original legal argumentation characterized both by a spirited and sometimes satirical authorial voice and by a keen insistence on empirical corroboration of the factual assumptions underlying legal claims. In some ways, the substance of his arguments in the two works is also parallel. In both cases, he argues that the behavioral excesses that sometimes accompany the activity in question (coffee drinking in one case, women’s presence in the mosque at night in the other) do not affect the legal status of the activity itself, that only the actual infractions (rather than potential harms) can be interdicted by the authorities, and that the harms claimed to accompany the practice are either altogether illusory or outweighed by the benefits it yields. In both cases, he focuses on the value of the activity in question as an aid to individual spiritual development; the consumption of coffee can keep the aspiring devotee awake and alert for nighttime vigils, and women’s presence in the mosque at night may be conducive to meritorious actions and positive spiritual states. In both cases, he asserts that the formal legal arguments of his opponents are placed in question by the social pressures and political intrigues that tacitly informed them. At a broader level, each work can be read as a critique of the intervention of the political authorities in the hermeneutic process of Islamic law.

Interestingly, although it must have been a substantial work and was clearly admired in some circles, Ibn ʿAbd al-Ghaffār’s monograph on the permissibility of coffee is not mentioned by the bio-bibliographical sources. His work on women’s access to the Great Mosque at Mecca fared only somewhat better. Al-Qarāfī notes that Ibn ʿAbd al-Ghaffār has a work on “refraining from forbidding women to go to the evening (ʿishāʾ) prayer” and cites al-Ḥaṭṭāb as stating “I believe he called it (aẓunnuhu sammāhu) Kashf al-ghishā fī ʿadam manʿ al-nisā min ṣalāt al-ʿishā.” The fact that al-Qarāfī reports the title secondhand from al-Ḥaṭṭāb—who himself seems to be unsure about it—suggests that the book was not directly familiar to him. Indeed, unless part of the title has been dropped by a later copyist, either al-Ḥaṭṭāb or al-Qarāfī was sufficiently imprecise in reproducing it that the actual subject of the work was obscured. Its inaccuracy suggests that one or both of them were ill-informed not only about the title of Ibn ʿAbd al-Ghaffār’s polemic but also about the issue that gave rise to it. Later biographical compilations neither correct the title nor provide any additional information about Ibn ʿAbd al-Ghaffār.12

Furthermore, it does not appear that the content of Izālat al-ghishāʾ is cited or alluded to in later treatments of the problem of women’s mosque access, although much of the argumentation would have been relevant (if only for purposes of refutation) to the discussions of subsequent scholars. All of this suggests that Izālat al-ghishāʾ was essentially a piece of ephemera. Despite the substantive (and sometimes brilliant) legal analysis it contained, it addressed a concrete problem that appears to have been resolved relatively swiftly. After the reversal of the policy of excluding women from the Meccan mosque at night, the specific issue at stake lost its currency. The work was produced in the living context of an open controversy, and although it may have circulated briefly thereafter, it largely passed into obscurity after that controversy was resolved. Only the physical survival of Ibn ʿAbd al-Ghaffār’s passionate intervention in the debate has preserved this fleeting moment for posterity.

THE BAN

At the time of the events discussed by ʿAbd al-Ghaffār, the power structure in Mecca had several major components. The Meccan religious establishment reflected the diversity of a population constantly augmented by newcomers from all parts of the Islamic world. By the period in question, there were four chief judges representing the four major Sunnī schools of law, as well as four prayer leaders presiding over the daily congregational prayers in the Sacred Mosque. Because the predominant school of the local population was Shāfiʿī, a Shāfiʿī served as chief judge (qāḍī al-quḍāt).13 Politically, Mecca had long been governed by a lineage claiming descent from the Prophet Muḥammad (the Sharīfs). This dynasty in turn acknowledged the suzerainty of regional powers—until the beginning of the tenth century AH/sixteenth century CE, the Mamlūks of Cairo.

The interaction of the various components of this authority structure is suggested by the earlier controversy chronicled by Ibn ʿAbd al-Ghaffār, the coffee debate of 917/1511. At this time, coffee was a beverage relatively newly introduced to the Arabian Peninsula. According to the official account of this event (recounted in the maḥḍar reproduced by Ibn ʿAbd al-Ghaffār), the controversy was initiated by the Mamlūk pasha Khāʾir Beg, who was at that time the muḥtasib of Mecca (a position that combined the duties of a market inspector and an enforcer of public morality). His intervention was ostensibly based on an encounter with a furtive group of coffee drinkers in the Great Mosque of Mecca during a night in the month of the Prophet’s birthday. Although they claimed to be celebrating the mawlid, Khāʾir Beg was sufficiently suspicious of the nature of their gathering (and the reports of coffee drinking in locales “like taverns”) that he decided to convene a council of the leading Meccan legal scholars. It seems that Ibn ʿAbd al-Ghaffār contested this version of events, alleging that Khāʾir Beg’s intervention was instigated by morally dubious private individuals with alleged medical training.14 Representatives of the Shāfiʿī, Mālikī, and Ḥanafī schools of law were convened and expressed a mixed consensus. On the one hand, they held that the gatherings at which coffee was consumed were illicit and should be interdicted; on the other, they denied that coffee was in itself a prohibited substance. However, on the basis of medical testimony obtained by Khāʾir Beg, they ultimately held that coffee was forbidden. This ruling was promulgated in Mecca and dispatched to the political authorities in Cairo. Despite the arrival of an official decree of prohibition from Cairo, however, the ban proved ineffective in suppressing the sale and consumption of coffee.¹⁵

These events suggest the interdependence of the Meccan religious establishment with the multilayered political context within which it functioned. The muḥtasib, a representative of the Mamlūk administration but also (at least on an ideological level) of Islamic ethical standards, was clearly in need of the moral imprimatur of the religious scholars. They in turn, however, were sufficiently vulnerable to the temporal authorities that the disinterestedness of their legal interpretations was subject to dispute. According to Ibn ʿAbd al-Ghaffār, the intervention of the Mamlūk muḥtasib was itself instigated by the lobbying of private individuals of questionable motivations.

The Great Mosque of Mecca, the site where the licitness of coffee at least ostensibly first presented itself as a social problem, appears in this narrative as an important locus of Meccan sociability. Whether the gathering had a religious purpose (as the participants claimed) or whether it was politically or socially subversive (as Khāʾir Beg clearly suspected), the mosque was a rare site where Meccans could assemble in ways that were both public and autonomous. Until the rise of coffeehouses, a development just beginning when these events transpired, the mosque was almost unique in this regard; it was a space where concerns about social propriety, religious rectitude, and political order converged.

The incident of 937 occurred after the downfall of the Mamlūks and the advent of an Ottoman administration in the Ḥijāz. Following his military victory over the Mamlūk Sultan al-Ghawrī’s forces at Marj Dābiq in 922/1516, the Ottoman Sultan Selim agreed to send a document of investiture (tawqīʿ) to the Sharīf Barakāt of Mecca, as al-Ghawrī had done before him, and confirmed Barakāt’s young son Abū Numayy as his coregent.16 The administration of the Sacred Mosque was one area where the Ottomans swiftly demonstrated their concern—perhaps significantly, particularly with respect to the maintenance of order during the nighttime hours. Ibn Fahd records that already in Dhū’l-ḥijja of 923/1517, the Ottoman amīr Muṣliḥ al-Din summoned the judges of the four schools of law and the gatekeepers (bawwābūn) of the mosque and objected to the doors of the mosque being left open at night, allowing dogs to enter. He ordered them to lock (qafl) the doors at night.¹⁷ He also inquired into the practice of paying deputies (nuwwāb) to guard the doors, an intervention that led to an altercation that threatened to become physically violent.¹⁸ It appears that initiatives to enhance the order and cleanliness of the mosque were less problematic than interventions in the financial and professional arrangements of the guards. The Ottoman administration also took measures to enhance the role of the Ḥanafī prayer leader in the Meccan sanctuary, who represented the preferred madhhab of the Ottoman state (but not of the majority of the local population).¹⁹

The political authorities could also become involved with issues of ritual propriety and public authority on the initiative of religious scholars. One of the most vigorously contested (but also the most entrenched and cherished) of Meccan religious practices was the observance of the Prophet’s birthday festival, or mawlid. In the tenth/sixteenth century, this holiday was commemorated in Mecca with an elaborate public ceremony that began in the Sacred Mosque after the maghrib prayer. The Shāfiʿī chief judge would lead the dignitaries and people of Mecca in a procession from the mosque to the Prophet’s birthplace, where a special sermon was delivered. The procession then returned to the Great Mosque, where the ceremony ended with the performance of the ʿishāʾ prayer.20 Ibn Ḥajar al-Haytamī, who settled permanently in Mecca in 940/1533, describes “the mixing of men and women in the mosque” as one of the most offensive aspects of the observance of the mawlid, particularly in Mecca. Women also participated in the procession from the mosque to the Prophet’s birthplace. Al-Haytamī describes the women as turning out for this occasion adorned with their best jewelry and clothing and wearing their finest perfume; he claims that their mixing with men has led to improprieties too dreadful to mention. According to al-Haytamī, a certain judge became aware of the situation and forbade the women to go out for the mawlid; however, the women “vanquished” or “overpowered” him (ghalabnahu) time after time. He finally forbade people from going out to the Prophet’s birthplace on the mawlid festival altogether. However, the festival was restored, only to be banned again, and so on (hākadhā).²¹

Early in the year 937 AH (which began in August 1530 CE), one of the temporal rulers (baʿḍ umarāʾ al-shawka) instructed the custodians of the Sacred Mosque to regulate women’s behavior in the mosque. Ibn ʿAbd al-Ghaffār never identifies this amīr by name; even though the sharīf Abū Numayy would appear to be an obvious candidate, one also might assume that he would be qualified as “the amīr” rather than merely “one of the amīrs.” Nevertheless, Ibn ʿAbd al-Ghaffār’s pious disinclination to assign blame to identifiable individuals may have given him reason for ambiguity, as may reluctance to insult a powerful reigning ruler. It is perhaps more likely that the amīr in question was a muḥtasib; among other things, this would fit well with Ibn ʿAbd al-Ghaffār’s extensive analysis of the legal duty of “commanding right and forbidding wrong,” which was often seen as the basis for this office in the sharīʿa. It is also conceivable that the reference is to some other figure, such as the Ottoman governor of Jeddah or the amīr al-ḥajj (although the latter’s presence throughout the period discussed would seem unlikely).²² In any case, Ibn ʿAbd al-Ghaffār states that that the amīr in question undertook his initiative without consulting any of the religious scholars.²³

This initial directive was that woman were forbidden to “sit in the middle of the mosque” after the last of the five daily prayers (the ʿishāʾ, which occurs after complete darkness has fallen); however, they were still permitted to circumambulate the Kaʿba throughout the night. Based on this, about an hour after the Ḥanbalī imam had completed the ʿishāʾ prayer the guards would make women who were sitting in the mosque get up; some women would then leave, and others would go to make ṭawāf without interference from the custodians. However, the mosque guards appear to have exceeded their mandate; when about a fourth to a third of the night had passed, they would begin harassing the women until finally all of them were cleared out of the mosque. Then they would shut the doors of the mosque and go away. Thus, for the remainder of the night the area around the Kaʿba was empty of worshiping women, whereas before that there were almost always some present.24 One interesting aspect of this account is that it implies that women were the only worshipers left making circumambulation in the middle of the night, so that when they departed, the custodians of the mosque could take the rest of the night off. It is unclear whether this is what is intended, although (as we shall see) Ibn ʿAbd al-Ghaffār does state elsewhere that women often dominated the mosque during the nighttime hours. It is also conceivable that the remaining (male) worshipers were locked inside the mosque.

Ibn ʿAbd al-Ghaffār recounts that he disapproved intensely of these measures, which deprived women of the opportunity to circumambulate at a particularly holy time of night. He found them especially inappropriate because most of the women present at that time were elderly and shabbily dressed and manifestly had no objective for their presence in the mosque but worship. He recounts that one night he witnessed one of the guards speaking roughly to a shabbily dressed woman, wanting her to leave so that he could depart himself because she was the only person left in the circumambulation area (maṭāf). He insisted that she had completed her set of seven circuits, although she swore to God that she had not. Ibn ʿAbd al-Ghaffār tried to intervene, saying “Even if she has finished, let her circumambulate the House as much as she wants; it is God’s House, and no one is entitled to deny anyone else access to it, whether by night or day.” The guard was unimpressed, retorting “Tell it to the amīr!”—followed by something that Ibn ʿAbd al-Ghaffār found too inappropriate to repeat. However, he allowed the woman to complete her seven circuits before forcibly ejecting her.²⁵

This incident disturbed Ibn ʿAbd al-Ghaffār so much that he consulted a religious scholar (presumably one more prominent and influential than himself). The latter agreed that the strictures on women’s access to the Holy Mosque were impermissible and promised to speak to the amīr, but for some reason failed to do so. Then, on Saturday the seventeenth of Jumādā al-ūlā of the same year (January 6, 1531) the amīr convened a council of the noteworthy figures and religious scholars of Mecca. The amīr consulted the gathered notables about the possibility of creating a barrier between the men and women in the Sacred Mosque, either by building an enclosed section (maqṣūra) for the women or by hanging curtains or the like, for fear of the corruption resulting from the mixing (ikhtilāṭ) of men and women. Interestingly, the council participants did not agree to the construction of a maqṣūra or the equivalent. However, they agreed that women should be forbidden from attending the mosque inappropriately adorned (mutabarrijāt; c.f. Qur’an 33:33) and should be commanded to go there attired only in the manner stipulated by the sharīʿa and without mixing with men. Furthermore, they agreed that the women should be expelled from the mosque after the ʿishāʾ prayer and not allowed to return until just before the dawn prayer and also that they should be prohibited from attending altogether on specific nights (i.e., those of major nocturnal festivals).26

The amīr then issued a memorandum (maḥḍar) stating that he had become aware of the mixing of men and women and describing how he had consulted with certain figures and they had come to an agreement on measures to prevent this. In addition to the provisions already mentioned, the decree stated that women should not be located in front of men during prayers. All of this was justified by “the fear of temptation and corruption (khawf al-fitna wa’l-fasād).” The contents of the decree were to be publicly proclaimed, with stern warnings against infractions. When it was finished and signed, the guards of the sanctuary were ordered to prevent women from entering the area of the Kaʿba after the ʿishāʾ prayer. After they made the women leave, they circulated through the mosque with lanterns, searching every corner for women who might be hiding.²⁷

Ibn ʿAbd al-Ghaffār reports with displeasure that the guards carried out the ban zealously, not exempting women who were manifestly innocent of any seductive display, even hunchbacked crones and indigents in threadbare clothes. In contrast, they were willing to make exceptions for women with social prestige and economic resources—even, ironically, if the women in question were the female relatives of the very men who had issued the decree. This became clear on the night of the twenty-seventh of Rajab, when there were large crowds of men and women circumambulating the Kaʿba as part of the minor pilgrimage (ʿumra) that was customary in Mecca on that date. Some women who wanted to circumambulate during the forbidden time succeeded in doing so by identifying their powerful male relatives (the authors of the ban) to the guards.28 As Ibn ʿAbd al-Ghaffār remarks elsewhere with withering contempt, “I do not know by what [verse of the Holy] Book or by what precedent of the Prophet (sunna) the Farewell Circumambulation has become inaccessible except by means of high rank (jāh)!”²⁹ Furthermore, he argues, the guards’ practice of allowing only individual women of status to circumambulate at the forbidden times frustrates the intent of the ban. Whereas women circumambulating amidst crowds enjoyed a certain degree of anonymity and concealment, the exceptional presence of individual women on the maṭāf at night led people to speculate about their identity and to specify that a given woman was so-and-so, the wife of so-and-so, or the daughter of so-and-so.³⁰

What is worse, the guards ejected women in a coarse and demeaning way, verbally abusing them and then (if that failed) dragging them off by their clothes. Their removal from the mosque, Ibn ʿAbd al-Ghaffār claims, became a pretext for harassment and even physical mistreatment. On some nights, this led to panic and disorder among the women hastening to exit the mosque; in the confusion, women lost prayer rugs and other personal effects, and it was particularly difficult for children, pregnant women, and the physically infirm. Ironically, disreputable men could take advantage of the disordered crowd of women as they were herded out of the mosque.31 Ibn ʿAbd al-Ghaffār emphasizes that he witnessed these abuses himself. He recounts that one night he saw three or four women who had slipped into the area around the Kaʿba after the curfew when the guards were not paying attention; they circumambulated as fast as they could, hoping to finish a set of seven circuits before they were caught. One of them was holding a baby. When the guards caught up with the women, the one with the baby explained that it was forty days old and she wanted to do ṭawāf with him for the sake of the resulting blessings, according to the custom of the people of Mecca. They told her to come back when the mosque reopened; she and the other women explained that they lived too far away, but the guards would not relent. The guards told the women that they should be ashamed for the sake of their honor, although the author thought it was the guards who should be ashamed.³² (Elsewhere, the author notes that women were so intent upon circumambulating with their forty-day-old infants that they sometimes bribed the guards with food or money to ignore them as they hid in a corner awaiting their chance.³³)

In addition to the poor conduct of the guards, Ibn ʿAbd al-Ghaffār complains of the discrepancy between the application of the ban and the rationales cited in its support. He points out that outside of the forbidden times, the guards do not confront women no matter what their level of perfume or adornment. Even the creators and zealous enforcers of the ban allow their womenfolk to go out to the mosque scented and adorned. Whenever men and women are present in the mosque at the same time, they are not prevented from mixing. In short, the guards ignore everything else mentioned in the decree and make the time of day the one relevant factor in allowing or excluding women.³⁴

The inconsistency of application of the ban was exemplified for Ibn ʿAbd al-Ghaffār by the fact that the prince who had forcibly imposed it was willing to relax it for his own (religiously dubious) purposes. After his recovery from a severe illness, he held a ritual in commemoration of the birth of the Prophet (a mawlid) in thanks to God. He invited everyone, or perhaps everyone who was anyone (jamīʿ al-nās), and summoned all of the professional mawlid reciters in town; the mosque was illuminated with lamps and torches. On that occasion, women were not made to leave the mosque at the usual time; they attended the mawlid and lifted their voices in ululation. Sweets (or possibly sugar syrup: sukkar) were circulated among women and men alike. Many of the dignitaries who were responsible for the ban attended this ceremony without raising the slightest objection. Then, “when the mawlid was over, the lights were extinguished, and the time of the descent of the Lord into the lowest heaven35 and the time when hearts are fully receptive to prayer arrived, then the women were expelled from the mosque and prevented from circumambulating. There is no power and no might but with God, the Supreme, the Great; we take refuge with God from the reversal of things (inʿikās al-aḥwāl)!”³⁶ Ibn ʿAbd al-Ghaffār was clearly aghast that the ban was suspended for the sake of a ceremony that he regarded as ostentatious and religiously baseless (he remarks skeptically that the prince held the mawlid “in thanks to God, as he alleged”), whereas it prevented the inconspicuous performance of religious acts of undisputed merit.

Ibn ʿAbd al-Ghaffār did not abandon his efforts to challenge the ban. First, he consulted with the religious authorities who had signed the decree, seeking to clarify their justifications for it. He states that they failed to provide sound legal reasoning in support of their position and summarily dismissed his appeal to the ḥadīth forbidding Muslims to “forbid the maidservants of God from [going to] the mosques of God.” He composed a piece courteously explaining the grounds for objection to the ban, but it was not well received.³⁷ After his efforts to persuade the local authorities through religious debate proved fruitless, he strove to mobilize religious opinion internationally by sending a legal inquiry (istiftāʾ) to scholars in Medina, Egypt, Yemen, and other places. (As we shall see, like most such questioners he phrased his inquiry in such a way as to elicit reactions favorable to his cause.) Although (perhaps as a result of his carefully framed inquiry) he was able to claim that all the scholars “who are to be taken seriously” agreed on the illegitimacy of the decree, this still did not convince the Meccan establishment. The composition of his work Izālat al-ghishāʾ was itself a part of his vigorous and sustained effort to stimulate opposition to the ban, one on which he embarked only after long reflection and in the face of grave reservations about casting aspersions on other scholars. After the failure of his other efforts to sway elite opinion, he performed the prayer of istikhāra seeking God’s guidance on the matter and decided to write the book.³⁸

Whether Ibn ʿAbd al-Ghaffār’s reluctance reflects genuine personal scruples or simply a conventional stance of deference and humility, the religious etiquette of scholarly debate places certain limits on his discussion despite the generally spirited (and in many places devastating) tone of his polemic. Most importantly, although he routinely expresses an incredulous disdain at the arguments of his opponents, he preserves the proprieties by leaving them anonymous. Not one of his antagonists, from the prince who initiated the ban through the notables and scholars who supported it, is identified by name. This makes historical reconstruction of the debate over the ban more difficult, although the overall sequence of events suggests that the major scholars in Mecca at the time must have supported it.39 In general, the opposite side of the debate can be reconstructed only from the discussion of Ibn ʿAbd al-Ghaffār, who cannot be assumed to be representing it favorably. The only prominent legal thinker whose fatwa in support of the ban appears to be identifiable and preserved is Ibn Ḥajar al-Haytamī.

In another work, a devotional piece about the birth of the Prophet Muḥammad, al-Haytamī provides a much shorter—yet still revealing—alternative account of the genesis and fate of the ban. He writes,

It occurred soon before our settlement in Mecca that many of the scholars of the four schools of law in the Noble Mecca advocated and promoted with all possible vigor (qāmū ashadd al-qiyām wa’ntaṣarū ashadd al-intiṣār) that women be forbidden from leaving their homes to go to the Sacred Mosque altogether because of the shameful acts (qabāʾiḥ) that were well-known, nay, incontrovertibly reported (ishtahara bal-tawātara) to be committed by them even in the mosque [itself]. Others opposed them so that fatwas proliferated, and each party composed works in refutation of the other; each party sent enquiries to the scholars of Egypt based on their own agendas (bi-ḥasb gharaḍihim), and [the scholars of Egypt] responded to each enquiry as was appropriate to it. So much correspondence, error, and abuse transpired between them that it became an occasion of temptation for sinful people (al-fasaqa) and those with deviance and vain desires in their hearts to defend the wrong and allow those shameful acts to continue as they were. So [the shameful acts] increased, overflowed, spread and became general.⁴⁰

Although al-Haytamī did not settle permanently in Mecca until 940/1533, he sojourned there for a year following his second pilgrimage in 937/1531—that is, in the year of the events in question and presumably while the ban was still in effect. Thus, although not an eyewitness to the initiation of the ban, he must have been personally well acquainted with the controversy that surrounded it.

One interesting feature of al-Haytamī’s account is that, unlike Ibn ʿAbd al-Ghaffār, he represents the ban as having been initiated by the religious scholars. It seems likely that Ibn ʿAbd al-Ghaffār’s more detailed account provides a fuller picture of the multiple constituencies (mosque personnel, political authorities, notables, judges) whose intersecting agendas informed the ban. Al-Haytamī’s narrative, however, reflects the extent to which scholarly argumentation could be isolated from its social context. Because legal interventions formally emerged from the intersection of legally problematic actions with abstract hermeneutic processes, the role of intersecting social and political processes—the events and interventions through which given behaviors were raised as an issue and framed as a legal problem requiring solution—could easily be elided. Because of Ibn ʿAbd al-Ghaffār’s eagerness to represent opposing legal scholars as victims of the abrupt and independent measures of actors without religious authority, he is distinctively motivated to reveal the extraneous factors that suddenly isolated women’s activities as problematic and presented them as a subject for legal interpretation. In contrast, al-Haytamī wishes to represent the Meccan scholarly establishment’s support for the ban as a legitimate expression of scholarly reflection, and thus he depicts it as an independent exercise of hermeneutic reasoning applied directly to a pressing social problem.

Al-Haytamī’s account also raises another issue, namely, how the fashioning of a legal inquiry (istiftāʾ) could predetermine the legal analysis of a question by framing it in a specific way. By stating that the parties to the conflict produced inquiries “based on their own agendas” and that the responses were “appropriate” to the inquiries presented, he implies that skillful questioners (in this case, themselves scholars) had the ability to elicit legal reasoning to support either side of a disputed question. Ibn ʿAbd al-Ghaffār was clearly aware of the accusation that he had predetermined the responses to his inquiry by misstating the facts.41 Because a muftī is not responsible for inquiring into questions of fact, by its very nature a fatwa addresses the fact pattern presented by the questioner rather than the actual state of affairs on the ground. In this case, it is quite clear that the initial framing of the question substantially contributed to the shaping of the answers. Ibn ʿAbd al-Ghaffār provides the verbatim text of the inquiry that he sent to scholars in Egypt (although elsewhere he suggests that it is merely a summary of a more comprehensive—and, it is implied, more balanced—presentation of the question).⁴² The question reads as follows:

What is your opinion (may God be satisfied with you!) about what occurred in Noble Mecca, that is, the banning from the Kaʿba after the ʿishāʾ prayer until soon before the dawn prayer of all women without exception, and their being prevented from circumambulating then, without distinction between a virtuous and a depraved woman, an old woman and a young one, an adorned woman and one dressed in workaday clothes, a woman who is perfumed and one who is not perfumed, such that that [ban] is applied as well to women visiting from abroad (al-āfāqiyāt) and women who are performing the minor pilgrimage and to someone who wishes to perform the Farewell Circumambulation and has performed part of her series of seven circuits before the ʿishāʾ but ʿishāʾ came before she could complete it—she is prevented from completing it after ʿishāʾ. The person who banned [the women from circumambulating after ʿishāʾ] has claimed that there are harms in their mixing with men in the middle of the night and that it is difficult to distinguish between a woman who is committing harmful acts and others, so that he considered it more appropriate—indeed, imperative—to ban them generally. Is [he] correct in that or mistaken and sinful, because the harm [of women’s presence] is speculative (ghayr muḥaqqaqa)? Give us a legal opinion, and may God reward you with paradise by His grace and favor!⁴³

The inquiry that elicited al-Haytamī’s fatwa is very different in emphasis. It reads:

In these times, it has become a frequent occurrence that women go out to the markets and the mosques to hear preaching, and to circumambulate the Kaʿba, etc., in the mosque of Mecca, presenting themselves in unaccustomed ways that will definitely have a seductive effect. Specifically, they adorn themselves when going out for any of these purposes with the best adornments, jewelry and garments at their disposal, such as ankle rings, bracelets, and gold that is visible on their hands, and large amounts of incense and perfume. In addition, they expose large portions of their bodies, such as their faces, hands, and other parts, and sashay as they walk in a way that is noticeable to anyone who looks at them, whether intentionally or unintentionally. Is it incumbent on the imam or on other holders of authority and power to exclude them from these places, even from the mosques, and even from the mosque of Mecca, despite the fact that they cannot perform the circumambulation [of the Kaʿba] outside of it, unlike prayer? Or should the two [activities—i.e., circumambulation of the Kaʿba and prayer] be distinguished on that basis?44

Although both of these inquiries are ultimately about the legal status of the actions of the authorities who banned women from the mosque at night, rather than of the women themselves, each one of them elicits a specific reaction by depicting the women in a distinctive and emotionally evocative way. In Ibn ʿAbd al-Ghaffār’s inquiry, the women are vividly depicted as victims of an unjust deprivation of access to the Kaʿba. By presenting the detailed scenario of the woman who is prevented from completing her seven-circuit circumambulation in the context of a pilgrimage, he highlights the most distressing (and ritually problematic) potential effects of the ban. In contrast, al-Haytamī’s questioner focuses on the role of women as provocative actors in their own right. It is also striking that Ibn ʿAbd al-Ghaffār treats the ban as a fait accompli whose (baneful) effects are subject to evaluation, whereas the question addressed by al-Haytamī posits the women’s bad behavior as an ongoing problem that could prospectively be solved by barring women from the mosque (and indeed from other public places). It is possible that this difference simply reflects time sequence; that is, the inquiry could have been presented to al-Haytamī before the imposition of the ban. However, Ibn ʿAbd al-Ghaffār’s narrative suggests that the solicitation of fatwas followed the ban rather than preceding it. It seems possible, or indeed likely, that the question addressed by al-Haytamī is fashioned as it is to present the ban as an attractive solution rather than a problematic and disputed reality.

MECCAN WOMEN’S USAGE OF THE SACRED MOSQUE

According to Ibn ʿAbd al-Ghaffār, his opponents base their defense of the ban less on the strength of the legal arguments they can offer than on the enormity of the misbehavior they claim the women to be committing. In response to legal critique, one of them will reply, “You are excused, because you aren’t aware of the dreadful offenses that women are committing at that time, which are not approved by God, His Prophet, or any of the Muslims; if you knew that, you wouldn’t doubt the necessity and obligatoriness of this ban.” Ibn ʿAbd al-Ghaffār humorously describes how the opponent then shakes his head in wonderment and horror.45 Thus, the claims of the ban’s supporters can be refuted only by clarifying what it is that women are actually doing in the mosque at night.⁴⁶ As a result, many of his comments are devoted to describing the nature of women’s presence in the mosque. These provide an unusual glimpse of women’s activities in a major (if atypical) mosque from an author who is not polemicizing against them. Indeed, in juxtaposing his opponents’ flamboyant claims about women’s misbehavior with what he asserts to be a more sober account of their actual activities, he helps to give some insight into the kinds of exaggeration and distortion generated by many scholars’ preoccupation with issues of fitna. Although he himself is undoubtedly biased, his willing admission that Meccan women violate many ideal standards of Islamic propriety—combined with his generally temperate and plausible account of their behavior—suggests that his discussion is not merely a counterpolemic.

Ibn ʿAbd al-Ghaffār states of women’s habits of frequenting the mosque,

As for what is manifest of their behavior and observable to all, both elites and commoners, it is merely that [the women] become numerous in the mosque and the maṭāf from soon before the sunset prayer (maghrib) to the beginning of the period of ʿishāʾ; at that point their numbers reach their fullest extent. Some of them are busy circumambulating [the Kaʿba], and some of them are sitting in the place that is ordinarily reserved for them (al-makān al-muʿadd lahunna ghāliban), which is near to the Ṣafā Gate, without any manifest suspicious conduct or palpable misbehavior. Then, after the ʿishāʾ prayer, their numbers decline gradually for some time into the night (ilā jānib min al-layl). Then [in the morning] they become numerous after that again on the maṭāf until the sun becomes very high and its heat is felt, and then their numbers decrease. They may also be present in large numbers during the day, to the extent that it is possible [for them], as on women’s days (ayyām al-nisāʾ). The maṭāf is rarely empty of [women] during the night or day, just as it is rarely empty of men; what is more, for an hour or so after the Ḥanbalī [imam] completes the ʿishāʾ prayer and from the time when the sun rises until its heat is felt, they [i.e., women] are usually far more numerous than men, because at those two times there are few men, and the women take advantage of it because of the benefits they reap from it … , including kissing the [Black] Stone, touching [the stone and the corner of the Kaʿba], and other things.47

Based on Ibn ʿAbd al-Ghaffār’s description, the most popular time for local Meccan women to attend the mosque was in the evenings between the maghrib (sunset) and ʿishāʾ (nighttime) prayers (followed by the early morning hours). He states elsewhere that at this time there were large crowds of men and women in the mosque and it was difficult for men to find a break in the continuous ranks of women to get to the maṭāf.48 Although most women clearly departed for home after the ʿishāʾ prayer, many also cultivated the pious practice of spending the entire night in circumambulation. For many women, according to Ibn ʿAbd al-Ghaffār, the period between the sunset and nighttime prayers might be the only appropriate occasion to visit the mosque. Some women, particularly if they were young and nubile (shābba), did not go out during the daytime (presumably as a form of modest seclusion) and could now visit only in the early evening hours or immediately before daybreak—times when the area around the Kaʿba was crowded with men.⁴⁹ Other women were occupied with their livelihoods (maʿāsh) during the daytime hours.⁵⁰ Indeed, a source from a somewhat earlier period suggests that a certain informal deference seems to have been paid to Meccan women’s desire to circumambulate discretely during the hours of darkness. Around the end of the seventh/thirteenth century, a pious Egyptian Sufi who circumambulated at all hours of the day and night offended public opinion in Mecca by his obliviousness toward this custom. During the nighttime hours, he would find himself circumambulating with both secluded and unsecluded women (nisāʾ mukhaddarāt wa-ghayr mukhaddarāt), and in violation of local norms he took the opportunity to greet and converse with them. It was found particularly offensive that he addressed the women by name, thus revealing their identities to everyone in the vicinity.⁵¹

Ibn ʿAbd al-Ghaffār states that of the evenings of the week, the most popular visitation times for Meccan women were Monday and Friday eves (i.e., Sunday and Thursday nights).⁵² It is notable that this description correlates well with other accounts of the mosque-going habits of Ḥijāzī women. In the second half of the fifteenth century, the Shāfiʿī scholar al-Samhūdī noted of the Prophet’s Mosque in Medina that on major festivals⁵³ and indeed “on most Friday nights” (Thursday nights in English parlance, as the new day was taken to start at sundown),

women gather in large numbers between the sundown and nighttime prayers in the direction of the Noble Face [i.e., the head end of the Prophet’s tomb], [the women] being adorned and perfumed with various kinds of aromatic fragrances in a way that is forbidden when they go out. Then a large number of men who seek corruption join them and speak to them at that time; as for virtuous people and anyone who has any shame, they avoid visiting [the Prophet’s grave] at that time.

Interestingly, al-Samhūdī suggests as a remedy for the scandalous behavior rumored to occur on these occasions that the period between the maghrib and ʿishāʾ prayers be reserved for women’s visitation; men would be able to enter only before maghrib or after ʿishāʾ. He claims that this solution was, in fact, attempted by the servants of the sanctuary during the sojourn of an unnamed “virtuous person” in Medina; however, the effort was unsuccessful “due to the obstinacy of the spreaders of corruption.”54 He states that the only way to achieve this reform would be for the ruler of the city to impose it personally until it became an established custom.⁵⁵ Ḥijāzī women’s long-standing preference for attending the mosque in the evening hours is also reflected in the comment of al-Muḥibb al-Ṭabarī (seventh/thirteenth century) that “today” the women of the Two Sanctuaries (Mecca and Medina) most often attend the nighttime (ʿishāʾ) prayer.⁵⁶

Not only did women prefer to frequent the mosque during the evening hours, but the social and religious function and tone of their evening visits to the mosque also differed significantly from those of their visits during the daytime. Ibn ʿAbd al-Ghaffār reports more than once that during the daytime respectable women would go out to visit the mosque (and, apparently, to other locations) only dressed in conformity with the best standards of modesty. They did not wear perfume or adorn themselves ostentatiously, nor did they wear jewelry whose tinkling would be audible to men. To do so during the day would have been universally recognized as unbecoming; indeed, such behavior occurred during the day only rarely, on the part of women who were notoriously ill-reputed. During the evening hours, in contrast, the same women who dressed and comported themselves so decorously during the daytime would venture out to the mosque only if splendidly turned out in all of the ways forbidden by the sharīʿa, with perfume, jewelry, and other adornments. Indeed, the Meccan custom of affluent women’s perfuming and adorning themselves to attend the mosque in the evening was so entrenched that, if a woman was unable to do so, she would simply refrain from going there.⁵⁷ After the ʿishāʾ prayers, most of the richly adorned women would depart the mosque. Those who remained into the night were primarily elderly and poor or intermediate in wealth.⁵⁸

Ibn ʿAbd al-Ghaffār’s account of the habits of Meccan women suggests that their conventions of modesty and self-presentation intersected with (and were partially informed by) the norms formally articulated by Islamic scholars, but were not fully congruent with them. Their modesty and concealment during the daylight hours and preference for frequenting the mosque in the gloom of evening or early morning reflected textual norms. As articulated by male scholars, however, constraints on women’s public display were not time-bound; it was never appropriate for a woman to enhance her attractions with fine clothes, perfume, or the like when exposed to the gaze of unrelated men. It is not sufficient to assume, as is sometimes implied by the comments of male scholars, that Meccan women simply flouted recognized norms out of frivolity, self-indulgence, or ignorance. Had this been the case, they would have been equally oblivious or indifferent to normative standards at all times of the day. Instead, proper self-presentation—in this case, the use of fine clothes and adornment when appearing in public in the evening hours—was itself an alternative norm observed by at least some Meccan women. Ibn ʿAbd al-Ghaffār’s reference to “affluent” women (mūsarāt) suggests that one function of the women’s behavior was the display of economic resources, which presumably contributed to the establishment and maintenance of social status.59 As such, it formed part of a culture of female sociability that we can infer, but not completely reconstruct. It is also very possible that for Meccan women, self-beautification and perfuming for nighttime visits to the mosque represented a way of honoring the sanctity of the place and time, very much as men were encouraged to honor the sanctity of the Friday prayers by beautifying and perfuming themselves.

Indeed, Meccan women’s reputation for copious use of scent even (or perhaps especially) when visiting the Sacred Mosque had been commented on for centuries. Ibn Baṭṭūṭa recounted in the fourteenth century,

The women of Mecca are exceedingly pretty, surpassing in beauty, possessed of virtue and chastity. They use a great deal of perfume, to the point that one of them will go to bed hungry and buy perfume with her foodstuffs. They go to perform the circumambulation of the House [i.e., the Kaʿba] every Friday night [i.e., Friday eve, or Thursday night]. They come in the prettiest clothes, and the scent of their perfume pervades the sanctuary; one of them departs and the trace of her perfume remains redolent after her departure. The people of Mecca have good customs and a jealousy (ghayra) that we shall mention, God willing.⁶⁰

It is notable that Ibn Baṭṭūṭa’s description contains no hint of censure; the Meccan women are virtuous, chaste, and heavily perfumed. Similarly, al-Sakhāwī describes a daughter of the amīr of Mecca in the early ninth/fifteenth century as going to extremes in her application of scent, a fact that did not prevent him from describing her as “modest.”61 In contrast, the Shāfiʿī jurist ʿIzz al-Dīn Ibn Jamāʿa (d. 767/1366) complains that the Meccan women’s wafting fragrances within the mosque distract people and attract their glances; he considers it an abuse worthy of intervention by the authorities.⁶² Nevertheless, the custom persisted; in the seventeenth century, the Ottoman traveler Evliya Çelebi would observe of the Meccans that “if a woman passes by a man of God his brain is suffused with the perfumes of musk and ambergris and civet.”⁶³

A certain degree of informal gender separation prevailed within the mosque, even in the context of circumambulation of the Kaʿba. Ibn ʿAbd al-Ghaffār states that it is the women’s custom to perform ṭawāf exactly as is prescribed by the sharīʿa, in rows behind those of the men (i.e., presumably in circles concentrically surrounding them) and not mixing with the men.⁶⁴ If it happened that a woman jostled in among the men to kiss the Black Stone or to touch the rukn, people would rebuke her severely; indeed, some ignorant devotees and uncouth commoners would take it as an excuse to indulge in vulgar abuse.⁶⁵ Despite the accusations of his adversaries, Ibn ʿAbd al-Ghaffār insists that women adhered to the custom of circumambulating separately from the men even on major nocturnal festivals.⁶⁶

However, gender separation within the mosque was not strictly observed in other contexts. Ibn ʿAbd al-Ghaffār speaks of men sitting near to, or even among, women at mawlids “and the like.”⁶⁷ He also makes it clear that the mosque custodians did not intervene to impose gender segregation during daylight hours and implies that mixing was both possible and routine. He notes that between the sunset and nighttime prayers, the women still sit in their usual place near the Ṣafā gate of the mosque, just as they used to before the ban; men walk past them and sit between, in front of, and behind them, and no one objects.⁶⁸ This suggests that there was a recognized area where women gathered, particularly in the evening hours that they favored for mosque visitation. However, the area where women were concentrated was not physically or visually separated from the rest of the mosque, and men could pass through it—or even sit down among the women—at will.

Because Ibn ʿAbd al-Ghaffār is interested in the timing and spatial location of women’s activities in the mosque, rather than in their content, he does not specify precisely what women did during their evening visits to the mosque. His references to women who went to great lengths to bring their infants to the mosque forty days after birth suggests that drawing on the auspicious power of the sacred sanctuary at the end of the period of seclusion after childbirth was an important women’s ritual. Bringing an infant to evening prayers and having a mosque custodian hold it close to the Kaʿba (or the Prophet’s grave) is a women’s ritual that is also documented for later centuries in both Mecca and Medina. A description of the Prophet’s Mosque in Medina from 1303/1885 states that “on every Friday night, and sometimes on Monday night, [women] crowd to bring babies on the fortieth day after their birth into the [Prophet’s grave] chamber after the maghrib [prayer]; [the child] is placed under the curtain for about two or three minutes, and then the eunuch who put him in brings him out, the face of the child being illuminated, and gives him to his mother.”69

A similar description is provided by the contemporary Medinian Jaʿfar al-Barzanjī, who notes that it is done “for the sake of blessings (tabarrukan) and in the hopes that they will be granted protection, soundness from defects and illnesses, long life, and other things.”⁷⁰ Also in the late nineteenth century, Snouck Hurgronje recounts that after observing the forty-day period of seclusion after childbirth, a new mother in Mecca would invite her friends to a party.

In the afternoon the ladies eat and drink together. Towards sunset they go with the young mother into the mosque, and take the child wrapped in the most costly clothes on a small silken mattress shining with gold and silver. This they hand over to a mosque eunuch (âgha) who at once understands that this is the fortieth day after birth and lays the child on the raised threshold five feet high of the Kaabah. … Ten minutes the child lies there: then the eunuch gives it back to the mother, and receives a gift for his trouble. The women then with the congregation perform the sunset prayer.⁷¹

It thus appears that this postchildbirth rite was an important practice of women in the Ḥijāzī sanctuaries over a period of centuries.

Women also flocked to the mosque in particularly large numbers during the evening hours at holy times in the religious calendar. Meccan women were accustomed to making the minor pilgrimage (ʿumra)—which involved circumambulating the Kaʿba and making seven circuits back and forth between the adjacent hills of Ṣafā and Marwa—frequently from the month of Rajab through the end of Ramadan.72 During this three-month period of enhanced religious activity, a woman who wanted to make ʿumra would ordinarily leave for the mosque sometime after the midafternoon (ʿaṣr) prayer and try to arrive in time to pray ʿishāʾ with the congregation; if she had to walk a long distance, she might come earlier to give herself time to rest. After the ʿishāʾ, she would circumambulate the Kaʿba and then go out to perform the saʿy between Ṣafā and Marwa.⁷³

The crowds of women were particularly dense on the twenty-seventh of Rajab and during the last ten nights of Ramadan, two of the holiest times of the Islamic calendar.74 The supporters of the ban complained that on those nights the raised voices of the masses of women and the provocative tinkling of their ornaments made the mosque noisier than a marketplace; the women appeared with their faces uncovered and mixed with men, their charms exposed in the glare of the lamps and candles that illuminated the mosque. Furthermore, because the women circumambulating the Kaʿba on those occasions outnumbered virtuous men by a factor of ten to one, it was almost impossible for a man who sincerely wished to focus on his devotions to pray or circle the Kaʿba. (Because it is unknown what proportion of the men were regarded by the anonymous complainant as “virtuous,” it is unclear whether women vastly outnumbered men overall or simply the minority of sincere worshipers.) Women were so numerous that it was impossible for a man to avert his eyes; rather, he had to look carefully to find a path between them on his way to pray or circumambulate, exposing him to the danger that his glances might become lustful and that his state of ritual purity could be canceled.⁷⁵ Furthermore, on such occasions women would often spend the night in the mosque, bringing bedding, eating and drinking there, and sullying the sanctuary by washing their hands and engaging in other questionable activities.⁷⁶ Again, the patterns of behavior described (and the objections raised against them) are reflected in other sources. The Meccan Ḥanafī jurist Ibn al-Ḍiyāʾ (d. 854/1450) complains of “the women of Mecca’s going out to the mosque and to the noble place of circumambulation (al-maṭāf) and their gathering there on Friday [i.e., Thursday] night and the nights of the festivals (al-aʿyād) and of the sacred nights (al-layālī al-fāḍila) of the year. On those occasions they engage in much frolic and raise their voices, which is an occasion for temptation/misbehavior (fitna) between women and men.”⁷⁷

Ibn ʿAbd al-Ghaffār disputes the factual accuracy of much in his opponents’ description of women’s behavior during nighttime festivals. He denies that the women have their faces uncovered on such occasions, or that they have audibly tinkling ornaments, or that they mix with men during circumambulation. (To the extent that they do commit such acts, he fully agrees that they should be prevented.⁷⁸) He also denies that women bring actual bedding to the mosque; at most, they bring prayer carpets. They do not bring full meals and spread out tablecloths; rather, at most they eat sweets. During the nights of Ramadan, men do this and more—indeed, they are in the habit of spending the nighttime hours in the mosque for purely social reasons.⁷⁹ As for the final nights of Ramadan, in Ibn ʿAbd al-Ghaffār’s opinion the problem is not the presence of women, but the practice of illegitimate religious innovations, including the illumination of the mosque with lamps and candles and the erection of pulpits from which the prayer leaders give sermons. These customs do lead to the mixing of men, women, and attractive adolescent boys, problematic bodily contact, and the raising of voices in the mosque, and they have been denounced by scholars in the past.⁸⁰ The solution is not to exclude women, but to abolish these innovations.

Interestingly, most of the problematic behavior by women in the mosque—whether routine appearances with inappropriate dress and perfume or special practices associated with holy nights of the Muslim calendar—seems to have been distinctively associated with local Meccan women. The conduct of female pilgrims and of foreign women dwelling in Mecca as a form of pious retreat (mujāwirāt) was perceived as far less problematic. Ibn ʿAbd al-Ghaffār states on numerous occasions that it is only the Meccan women who are accused of bad behavior.81 This may in part have been because female pilgrims and visitors were religiously on their best behavior, inhabiting a liminal state where displays of status and wealth would have been inappropriate. Indeed, persons in the state of ritual preclusion required for the pilgrimage (iḥrām) were explicitly forbidden from anointing themselves with perfume. However, the contested behavior of Meccan women probably did not simply originate in a religious laxity bred of greater familiarity with an easily accessible sanctuary. Rather, for local women the mosque was much more complexly integrated into their social and religious lives; it was the locus for customary forms of sociability and piety that were embedded in local concepts and practices of status and value, ones that sometimes diverged from the formal norms articulated by cosmopolitan male scholars.

THE LEGAL ANALYSIS

Ibn ʿAbd al-Ghaffār’s legal discussion is lengthy, detailed, and often repetitive. However, his main arguments can be condensed to a small set of central points. His opponents argue in support of the ban that women’s comportment in the mosque at night gives rise to social and sexual corruption that can be prevented only by forbidding women’s presence in the mosque. Because of the severity of the sins involved, it is imperative that they be forestalled by interdicting the smaller infractions that lead to them. Although not all women are guilty of bad behavior, identification of individual transgressors would require unacceptably intrusive examination of individual women. Thus, the only solution is a blanket prohibition on attendance by women as a group.

Ibn ʿAbd al-Ghaffār responds to these contentions on several different levels. First, he disputes the factual accuracy of claims that corrupt activities are rampant in the mosque, arguing that behavioral infractions are both less frequent and less severe than claimed by his opponents. Second, he argues that the definite religious benefits of women’s worship (in particular, circumambulation of the Kaʿba) that are lost as a result of the ban outweigh the speculative benefits (i.e., the prevention of anticipated misbehavior) accruing from its imposition. Third, he argues that it is impermissible to penalize all women for the infractions of individuals. He uses a wide variety of legal arguments and hypothetical examples to argue that it is invalid to generalize (taʿmīm) to all women accusations about the wrongdoing of a few. Fourth, he argues that it is not permissible for the authorities to interdict behavior that is merely disapproved, rather than forbidden, or that may be conscientiously regarded as permissible (even if undesirable) by the individuals who are engaging it. Finally, he argues that his opponents’ position is a legal innovation (bidʿa) involving an impermissible degree of original argumentation diverging from the established doctrines of the four schools of law. He bases his arguments firmly on the authority of the legal tradition, representing his interlocutors as rash and unqualified in their construction of legal responses to what they claim are newly emerging social needs.

One of the most striking and atypical qualities of Ibn ʿAbd al-Ghaffār’s legal analysis is the extent to which it problematizes the categorization of all women as a homogeneous class and the treatment of this class in a way significantly different from—and less advantageous than—that of men. In this sense, one could characterize his arguments as a critique of his opponents’ gender discourse. One of his most characteristic and effective rhetorical techniques is to equate his opponents’ arguments about the legal implications of women’s alleged bad behavior with parallel cases of infractions committed by men. Denuded of the sexualized overtones of the discussion about women, such examples often sound tellingly absurd.

In a motif that he repeats often throughout his discussion, Ibn ʿAbd al-Ghaffār raises the example of eating garlic or other pungent foodstuffs in (or before going to) the mosque.82 It is accepted by all schools of law that it is at best undesirable, and at worst forbidden, to enter the mosque after eating garlic, onions, or leeks, based on several explicit prophetic statements to this effect.⁸³ In this sense, it parallel’s women’s entering the mosque while wearing perfume; in each case, the presence of a person emanating a scent (good or bad) that may be disturbing to other worshipers is regarded as legally repugnant. However, no one was in the habit of forcibly excluding men who had eaten garlic from mosques. Thus, the formal parallelism of the two cases pointed up the differential spirit in which they were treated. In his most striking use of this parallel, which he repeats twice, Ibn ʿAbd al-Ghaffār evokes the hypothetical case of a person who becomes aware of a race (jins) of people (for instance, Indians) who have become accustomed to eating onions and other noxious things in the mosque between the noon and midafternoon prayers. He then forbids all people of that race—or indeed all men—from sitting in the mosque during that period of time, even if they have not eaten onions, and allows them to sit there at other times, even if they have eaten onions. Furthermore, he attempts to establish this as an element of the sharīʿa that will remain in force for future generations.⁸⁴

Ibn ʿAbd al-Ghaffār is well aware that this example will strike his readers as absurd, and it is clearly intended to shock them into reflecting on the fact that they do not find such a legal intervention absurd when it is applied to women. It is worth noting that in an introductory passage of his discussion, he states that his disputation against his opponents is in the mode of dialectical argumentation (al-abḥāth al-jadalīya), where the objective is to refute the arguments of the other side rather than to establish the position that is correct in itself.⁸⁵ Thus, many of his comments must be taken simply as thought experiments to demonstrate the inconsistency or (when extended to their logical conclusions) the absurdity of his opponents’ stance. Nevertheless, this is as close as an otherwise conventional legal thinker of Ibn ʿAbd al-Ghaffār’s time could come, with the available analytic vocabulary, to accusing his opponents of sexual discrimination.

In contrast, al-Haytamī comments in his legal manual Tuḥfat al-muḥtāj that “the ruler or his representative is entitled to prevent” women from going to mosques if they are physically attractive, perfumed, or adorned, “just as he is entitled to prevent someone who has eaten something smelly from entering the mosque.”⁸⁶ It is conceivable that this novel analogy reflects al-Haytamī’s response to the arguments made by Ibn ʿAbd al-Ghaffār or like-minded participants in this very controversy; it seems calculated to demonstrate that the exclusion of women is not capricious or unfair rather than to identify its traditional legal basis (which was the fear of fitna). If so, this would represent a case in which the polemics surrounding a specific controversy generated arguments that were canonized in an influential work of substantive law.⁸⁷

In another passage, Ibn ʿAbd al-Ghaffār provides a broader and less fanciful account of the ways in which the sins of men and women are being differentially treated by his opponents. Every man knows by personal observation that there is scarcely a time when the mosque is empty of groups of men sitting together to amuse themselves with various kinds of malicious gossip (ghība, which is considered ḥarām by the consensus of the scholars), up to and including unsupported accusations of adultery (qadhf, which is universally acknowledged to be a mortal sin, min al-kabāʾir). Ibn ʿAbd al-Ghaffār gives examples of scholarly complaints against such behavior to illustrate its gravity, pointing out that the Mālikī authority al-Qurṭubī actually advocated expelling men who were known for vain speech and lying in the mosque, just as one might (hypothetically) be expelled for eating onions or garlic.88 Furthermore, rumors attest to the gathering of adolescent boys (assumed to be the object of erotic interest for older men) in the mosque and the bad behavior to which it gives rise. There is no doubt, he concludes, that tolerating all of these infractions leads to corruption more flagrant and repugnant than that which is attributed to women. Furthermore, it is more difficult to distinguish the individual culprits (gossips and the like) than it is to identify individual women who are perfumed or mix with men. Thus, on analogy (qiyās) with his opponents’ arguments, it would be obligatory to expel all of the men from the mosque and forbid them to circumambulate the Kaʿba; yet they do not advocate this. Ibn ʿAbd al-Ghaffār asks sarcastically what their rationale for this might be, “unless it be that they distinguish between men and women in that respect, and infer that men are forgiven for committing sins that are not forgiven to women because of the lowliness of [women’s] rank and the deficiency of their intellects and religion!”⁸⁹

Ibn ʿAbd al-Ghaffār also cites a ḥadīth adduced by his opponents, in which God tells the Prophet to instruct the people that no one should enter a house of worship except with a sound heart, a truthful tongue, clean hands, and pure (i.e., chaste) genitals.⁹⁰ He notes that—even were the ḥadīth to be authentic—no caliph, judge, or scholar in Islamic history is known to have expelled anyone from a mosque for lacking a sound heart. Even assuming that people could be held accountable for such qualities, “What is the rationale for applying it to women to the exclusion of men? … And how do they know that men always have sound hearts, truthful tongues, and the rest of the qualities, and do not deserve to be excluded during the night or day? And if the men’s genitals are always pure, how do the women’s genitals come to be impure—does it suffice for [women] to be doing it among themselves?”⁹¹

In another passage, Ibn ʿAbd al-Ghaffār asks rhetorically “why it is more appropriate to prevent women from circumambulating for the benefit of men, rather than vice versa.” Invoking the example of early Muslim authorities who forbade men from circumambulating with women, he suggests that men should be barred at times when women are more numerous, and vice versa. Referring to his opponents’ arguments that on some festival nights women outnumber pious men around the Kaʿba by a factor of ten to one, he asks why they have chosen to prioritize the interests of men. Implicitly likening the Meccan sanctuary to a pious foundation (waqf) established by God, he asks sarcastically, “Did they find in the conditions of the donor that men should be given precedence over women?!”92

Ibn ʿAbd al-Ghaffār sees the issue not simply as one of technical legal argumentation but also as one of gender bias. He believes that the internal inconsistency in his opponents’ thinking and their palpably unequal treatment of the sins of men and women are ultimately manifestations of a visceral sense of disrespect for women that is subject to misrecognition as religious zeal. He argues that his opponents acted “in conformity with the natural disposition (wāziʿ), which is innate for many people, to go to excesses in condemning women and disdaining them.” Such people do not believe that women have any dignity or sanctity (ḥurma) at all. This natural tendency becomes conflated for them with the motivation of adherence to the law (yaltabis ʿalayhim hādhā al-wāziʿ al-ṭabīʿī bi’l-wāziʿ al-sharʿī), and they falsely fancy that it is an example of the zeal (ghayra) that is considered praiseworthy in religion rather than one of the vestiges of the pre-Islamic Time of Ignorance.⁹³ Although this is a sentiment that might be endorsed by many modern Muslims encountering premodern juristic discussions of issues such as women’s mosque access, it is rare indeed for a premodern jurist to suggest that the formally neutral hermeneutic processes of his peers reflect a visceral bias against women that they conveniently mistake for fidelity to pious ideals.

Unlike his opponents, who (at least in his depiction) implicitly regard every woman as laboring under the suspicion of moral turpitude or seductive intent, Ibn ʿAbd al-Ghaffār emphasizes the likelihood of a given woman’s innocence and indeed the possibility of her sanctity. In the case where a man uses abusive means to deprive an innocent woman of an opportunity for worship, it is he, not she, who is the transgressor. Such a man, he writes, runs the risk of falling under the divine warnings “Why should God not punish them when they are barring [people] from the Sacred Mosque?” (Qur’an 8:34) and “Those who abuse believing men and women undeservedly, bear a calumny and a glaring sin” (Qur’an 33:58). What is more, such a person is in peril of falling under an extra-Qur’anic divine warning, “Whoever bears enmity towards an intimate (walī) of mine, I have declared war upon him”94—for God’s intimates, both male and female, are numerous and their identity is unknown.⁹⁵

Ibn ʿAbd al-Ghaffār is no advocate of strict gender equality, at least with regard to ritual duties. He does not perceive women’s rights to mosque access as rigorously symmetrical to men’s, but rather concedes that men have “greater entitlement (aḥaqqīya)” to the mosque than women with respect to prayer. However, in his view the imbalance falls far short of justifying women’s actual expulsion from a mosque, just as it would not make it permissible to expel male slaves or travelers from the mosque on Friday due to their exemption from the duty to attend.⁹⁶ Based both on the relevant ḥadīth texts and on the consensus of the legal scholars, Ibn ʿAbd al-Ghaffār affirms that it is preferable for a woman to worship in her home. This does not apply, of course, to circumambulation of the Kaʿba; yet some scholars affirm that prayer (ṣalāt) is superior even to ṭawāf. However, he does not believe that this fact invalidates the motives of women who prefer to go to the mosque to circumambulate or pray.

No one is entitled to stand in judgment over anyone else with respect to worship, forbid him from performing a less meritorious (mafḍūla) act of worship and compel him to perform a more meritorious act of worship. Rather, the legally responsible person (mukallaf) is his own master in that respect. He performs whatever acts of worship God has facilitated for him and opened his heart to perform, regardless of whether they are the most meritorious or less meritorious, without being interdicted from doing so. It may be that he feels enthusiasm for one act of worship that he does not feel for others, even if they are more meritorious. The first proof for the impermissibility of interdicting him with respect to that is … [the report that] the Messenger of God (peace be upon him!) said, “Do not forbid your women from [going to] the mosques, and their homes are better for them.” Despite his explicit statement that it is better for [women] to pray at home, [the Prophet] forbade people to prevent them from going to mosques, which is less meritorious.97

Based on this logic, Ibn ʿAbd al-Ghaffār rejects al-Balāṭunusī’s inference that a woman who chooses to go to the mosque to pray (rather than performing a more meritorious prayer at home) must have ulterior or sinful motivations.⁹⁸ Overall, his arguments reflect a willingness to accept women as autonomous legal and spiritual agents who can and should select their acts of worship based on their individual religious needs.

Although Ibn ʿAbd al-Ghaffār staunchly defends the human dignity and the religious agency of women, he is certainly not a feminist avant la lettre. He is perfectly willing to acknowledge gender asymmetry—and indeed gender hierarchy—when he believes that it is textually well grounded and authorized by legal precedent. He makes a sharp distinction between husbands and male guardians, who may legitimately detain women at home, and public authorities who bar them from the mosque. He has no objection to the idea that a woman’s own guardian may choose to prevent her from going to the mosque. Both the protection (ṣawn) of the woman and sexual jealousy (ghayra) are entitlements (ḥaqq) of the guardian, particularly of the husband; the legal scholars have established that the husband’s permission is one of the conditions for the permissibility of her going. Ibn ʿAbd al-Ghaffār declares, “If it should happen that the mosque were altogether empty of women because their guardians had forbidden them [to go] in a [legally] permissible way, even if they were perfectly attired according to the norms of the sharīʿa, we would not oppose [the guardians] in that, because a stranger [i.e., a nonrelative] has nothing to say about it.”⁹⁹

Ibn ʿAbd al-Ghaffār does not contend that women are to be equated with men (although neither are women to be mistreated simply as a result of their sex); rather, he rejects the idea that all women are to be equated with each other, regardless of behavior, age, or appearance. Indeed, Ibn ʿAbd al-Ghaffār likens his opponents to an unjust judge who not only beats both of the opposing litigants but also goes on to beat everyone else present simply because they were found in the same house or mosque—or because they share with them the qualities of maleness or femaleness.100 For Ibn ʿAbd al-Ghaffār, this is an example of “generalization” (taʿmīm), an unusual coinage that he uses to label (and condemn) the extension of a ruling applying to a specific offender to all members of a larger class—in this case, specifically women.¹⁰¹ The theme of taʿmīm is also reflected in the inquiry that he sent to the scholars of Egypt, where his central objection to the ban is that it applies to “all women without exception … without distinction between a virtuous and a depraved woman, an old woman and a young one, an adorned woman and one dressed in workaday clothes, a woman who is perfumed and one who is not perfumed.”¹⁰² It is a recurring motif of his argument that, although he does not condone religiously sinful and legally questionable actions such as women’s attendance at the mosque while perfumed or adorned, he likewise does not condone the imposition of a sanction on other individuals who are innocent.

Again turning to parallel infractions committed by men, Ibn ʿAbd al-Ghaffār argues that, if the smell of alcohol or of garlic was wafting from a group of people, it would presumably not be legitimate to inflict the ḥadd penalty for wine drinking on all of them in the first case or expel them all from the mosque in the second.¹⁰³ He also rejects the idea that a whole group of people could be held presumptively guilty of a given infraction simply because it had become customary among them as a group. For instance, even if one knew that swearing on pain of divorce and then breaking one’s oath had become ubiquitous in society, it would not be permissible presumptively to separate any couple without knowing whether the husband had actually violated an oath of divorce.¹⁰⁴

The argument that all women cannot be barred from the mosque (even if only at specific times of day) for the infractions of a few is rendered more forceful by Ibn ʿAbd al-Ghaffār’s choice of framing exclusion from the mosque as a punishment (taʿzīr). This pointed definition of the legal problem brings it into the purview of an area of Islamic law subject to evidentiary and procedural standards. For Ibn ʿAbd al-Ghaffār, such discretionary punishments (that is, sanctions not textually established by Qur’anic decree) fall under the more general rubric of the Qur’anic obligation to “command right and forbid wrong.”105 Significantly, he does not overtly argue the point that exclusion from the mosque is a punitive sanction (as opposed to, say, an administrative measure necessary for public order). It is one that his opponents would almost certainly have disputed; the legal tradition on women’s mosque attendance dismisses it tacitly by declining to discuss it at all. This is acknowledged to be the case by Ibn ʿAbd al-Ghaffār; however, he sees it simply as a shortcoming in the arguments of his opponents, who have failed to address the stipulated conditions of this area of the law.¹⁰⁶

The duty of “commanding right and forbidding wrong,” Ibn ʿAbd al-Ghaffār argues, is subject to several significant limitations. First, the rules of “forbidding wrong” do not allow proactive and invasive investigation of suspected wrongdoing. According to the scholars of the Mālikī madhhab (as well as others), the wrong in question must be publicly manifest; one cannot seek it out by intrusive inspection (taftīsh) or, for instance, by sniffing someone or searching for things concealed under his garments. Although this limitation may make it difficult to confirm precisely who (if anyone) is guilty of suspected wrongdoing, one may not proceed if it is not possible to identify the individual culprits.¹⁰⁷ Second, one must always put the best possible construction on the acts of one’s fellow Muslims, even in cases where an innocent explanation would be far-fetched. Third, one may not sanction others for engaging in behavior that is legally objectionable (makrūh) but not actually forbidden (ḥarām). If the legal status of the act in question is disputed, one may not rebuke or sanction another person who is doing something that he or she does not personally believe to be forbidden.¹⁰⁸

Of course, the supporters of the ban were not, in fact, conducting or condoning searches of women. They rejected out of hand the notion (clearly absurd to everyone involved) that women might be inspected at the gate of the mosque for their clothing, age, and comportment before being allowed to enter at night—an obvious violation of prevalent ideas of modesty.109 Rather, they argued that due to the difficulty of distinguishing individual women who were guilty of infractions in the mosque, it was necessary to exclude all women as a class during the most problematic hours of the day. Admittedly this involved barring some women who were innocent of any intent but sincere worship, but the only alternative was to condone the bad behavior occurring in the mosque.¹¹⁰

Ibn ʿAbd al-Ghaffār questions both the substantive accuracy and the legal cogency of his opponents’ position. First, he disputes that it is prohibitively difficult to distinguish women who are blameless from women who pose a threat to public order. He points out that many women are observably innocent; they are visibly old, shabbily dressed, and otherwise innocuous. Second, his opponents have arbitrarily established the time of day, rather than the dress or comportment of the woman, as the sole criterion; during the day, they do not bar any woman from entry, even assuming that she is visibly adorned and redolent of perfume.¹¹¹ In response to the argument that perfume may be palpably present in a group, but difficult to trace to an individual, he argues (somewhat impractically) that it is perfectly possible to distinguish a strongly perfumed woman from a group by asking them to stand far apart from each other, thus isolating the source of the scent.¹¹²

However, Ibn ʿAbd al-Ghaffār does not appear to be seriously advancing the position that individual women should be more rigorously scrutinized for admission to the mosque. In a different passage of the work, he advocates that the ruler appoint an upstanding inspector (muḥtasib) for the mosque, aided by similarly trustworthy assistants. These people should circulate through the mosque, particularly checking secluded corners. If they catch men or women engaging in blameworthy behavior, they should castigate the culprits to the exclusion of anyone else.¹¹³ Individual men who pursue women, in the mosque and elsewhere, are known in the community and would be familiar to the mosque inspector within the space of a month. Fear of the embarrassment and gossip caused by individual expulsion from the mosque would be a sufficient deterrent for both male and female offenders.¹¹⁴

The position of the supporters of the ban is that, even if sinful behavior is not manifest, to perpetuate the current situation is to enable and condone unacceptable acts. Even if one cannot see sexual misbehavior being committed openly, one knows that it is happening and bears the responsibility for preventing it. Ibn ʿAbd al-Ghaffār responds to this logic with the bold contention that, in fact, the sharīʿa imposes no obligation to investigate or prevent wrongdoing that is not publicly manifest. It is only openly observable offenses that are legally significant and subject to sanctions; discreetly committed sins impose no obligations on the religious or temporal authorities.

We have not been made responsible for what occurs de facto (lam nukallaf bi-mā fī nafs al-amr); rather, it is forbidden for us to pursue it. Sins of every kind have always occurred de facto in every town and in every age, even in the days of the prophets (God’s blessings upon all of them!), and [the prophets] were not commanded to eliminate them so that they could be assured of their non-existence. Similarly, we are certain that very many repugnant acts are [now] occurring de facto in God’s Holy City [of Mecca], the City of His Prophet [Medina], and other towns, including zinā, the drinking of wine, the taking of interest, and other mortal sins, because there are many times as many incontrovertibly transmitted reports (li-tawātur al-akhbār) about the occurrence of that as there are about the women [allegedly misbehaving in the mosque].115

As we have seen, Ibn ʿAbd al-Ghaffār also holds that it is not permissible to interdict behavior whose impermissibility is disputed, and one may not object if a member of another school of law performs an action that is permitted in that school (even if it is forbidden by one’s own school).¹¹⁶ With respect to this requirement, he states that most scholars hold that the presence of adorned and perfumed women in the mosque is merely makrūh (undesirable). More specifically, he observes that most Meccan women are Shāfiʿīs, so they would consider it makrūh rather than ḥarām (forbidden).¹¹⁷ Therefore, he contends that their behavior in this respect should not be interdicted. His argument here depends on a rigorous distinction between the categories of makrūh and ḥarām that his opponents might have disputed; in some contexts, scholars understood karāha to be tantamount to taḥrīm. In any case, Ibn ʿAbd al-Ghaffār does not find it necessary to argue that anyone considers the presence of perfumed and adorned women in the mosque legally neutral (let alone desirable), and it would have been impossible for him to do so; rather, he treats makrūh actions as ones that, although perhaps suboptimal, are not forbidden and are therefore at the discretion of the individual.

Ibn ʿAbd al-Ghaffār invokes the authority of al-Qarāfī for the principle that in commanding acts that are merely recommended and forbidding acts that are merely disapproved, one should engage in counsel (irshād) rather than rebuke (tawbīkh).118 Citing a ḥadīth in which the Prophet, upon seeing a woman decked out in her finery entering the mosque, instructs the people to forbid their wives to adorn and flaunt themselves in the mosque, Ibn ʿAbd al-Ghaffār points out that—far from expelling all women from the mosque—in this report the Prophet does not even eject the culprit herself. From this he infers that the order to forbid women to display themselves in the mosque must express a recommendation rather than an obligation (amr nadb lā wujūb).¹¹⁹ (This argument cleverly parallels the more traditional contention that the Prophet’s negative command “Do not forbid the maidservants of God from [going to] the mosques of God” establishes a recommendation rather than a prohibition, but to the opposite effect.) Thus, Ibn ʿAbd al-Ghaffār is able to reinterpret apparent precedents for the limitation of women’s presence in mosques as instances of respectful exhortation. Although some women in the Prophet’s time are reported to have left the mosque swiftly after prayers, he notes that they did so by their own choice (bi’khtiyārihinna).¹²⁰ Overall, Ibn ʿAbd al-Ghaffār strongly emphasizes the distinction between courteous exhortation that leads to voluntary action and acts of coercion (kurh).

Related to Ibn ʿAbd al-Ghaffār’s argument that it is not permissible to interdict actions that are not themselves legally forbidden is his analysis of the concept of manʿ (forbidding). He argues that there are two distinct meanings of the term that are conflated by his opponents. One of them refers to the legal status of the act in question and the other to the issue of enforcement. In the first sense, it refers to the act’s being prohibited, as a matter either of taḥrīm or simply of karāha. It is this kind of abstract, theoretical prohibitedness that is the purview of scholars engaging in legal reasoning (ijtihād). The results of their analysis are not binding on any specific individual.121 In the second sense, manʿ refers to actual prevention of someone’s performing a given act. This function is performed by the public authorities with respect to the general population and also by husbands with respect to wives (and masters with respect to slaves). It applies to specific individuals and does not establish abstract general rules. Manʿ in the second sense (i.e., that of actual interdiction) is legitimate only if manʿ in the first sense (i.e., that of abstract legal prohibitedness) is present.¹²²

It is notable that in his fatwa on women’s mosque access, Ibn Ḥajar al-Haytamī offers support for the opposite view on this particular point.¹²³ He notes approvingly the view that the public exposure of a woman’s face is permissible with respect to the woman herself, but that it is nevertheless permissible or even obligatory for the authorities to interdict it for fear of its seductive effect on other people. By this logic, al-Haytamī argues, it is incumbent upon the authorities to prevent women from appearing in public at all if they engage in any behavior (such as attending the mosque adorned and perfumed) that is likely to have a seductive effect—presumably, regardless of whether such behavior is actually forbidden from the viewpoint of the women themselves.¹²⁴ Once again, Ibn ʿAbd al-Ghaffār emphasizes the moral subjectivity and choice of the individual woman, whereas his opponents prioritize considerations of public order.

Ibn ʿAbd al-Ghaffār concedes that some of the more dire offenses that are alleged to be associated with women’s presence in the mosque at night, which include actual sexual misbehavior, are absolutely forbidden. However, he emphasizes that even in this case, the authorities can intervene to interdict and punish only if they know through legally valid channels that offenses have occurred. In fact, the evidence is merely baseless gossip. It is rumored that, beginning with the fall of darkness and continuing into the night, many reprobate men mix among the women, immoral women steal off to be alone with them in the corners of the mosque and plan future sexual assignations, and people even manage to kiss or fondle each other within the mosque itself. Some youths claim that actual fornication has occurred within the mosque. Ibn ʿAbd al-Ghaffār emphasizes, however, that such reports are rarely heard from reliable informants. Some scholars claim to have heard such things from the culprits themselves, and this is the only likely way that one could learn of them; one does not plan future fornication in a voice that is audible to others, and one steals kisses only discreetly. Nevertheless, someone who does report such things of himself may merely be bragging.

In any case, these rumors do not deal with things that happen every night or even every few nights. Usually they are based on old stories that have been in circulation for years and are set in the reigns of bygone rulers. Overall, Ibn ʿAbd al-Ghaffār characterizes the accusations of actual sexual misconduct in the mosque as mere rumors (ishāʿāt), as well as “exaggerations and speculations” (al-mubālaghāt wa’l-mujāzafāt).125 The doubt that he casts on reports of sexual misconduct serves two purposes. One is to remove much of the urgency from the argument that exclusion of women is necessary to prevent greater harms. It also serves to show that women are being sanctioned for crimes that have not been proven and may, in fact, never have occurred.

Ibn ʿAbd al-Ghaffār’s discussion of the role of rumor in the construction of an illusory image of female wrongdoing in the mosque is supported by a tragic incident recounted by his Meccan contemporary Ibn Fahd. Despite its sanctity, the Sacred Mosque of Mecca was also a public place where a woman could experience an otherwise rare degree of exposure to the attentions of unrelated men. This may have been particularly true for Meccan women, who visited the mosque not in the liminal state of a pilgrim temporarily removed from her ordinary social context, but in the course of their daily lives and normal social relations. Ibn Fahd records in his account of the year 927/1521 that the unnamed daughter of a man whose name is omitted in the manuscript (there is a blank in its place) went out after the ʿishāʾ prayer to the mosque, where she encountered a man (identified by name) who was drunk. He accosted her and snatched her outer wrapper (izār). An indignant passerby struck him with his dagger (janbīya) and wounded him. Perhaps because the incident involved actual physical injury, it became widely known. The woman’s father, returning from a trip to Egypt, was taunted with a reference to the gossip—and promptly killed his daughter. He was said to have confessed to killing her because of her bad character (fisq). Such an act was clearly not normal or routine, as it led to public outrage and legal intervention. However, inquiries by a local judge and by the Ottoman governor (nāʾib) of Jeddah were frustrated when the father bribed the medical witnesses to state that his daughter died of natural causes. Ibn Fahd finishes the anecdote with the mournful exclamation, “The command belongs to God, before and after; there is no might and no power but in God!”¹²⁶

Although surely rare and shocking (as witnessed by Ibn Fahd’s indignant narration and anguished final comments), the story of this anonymous young woman suggests the vulnerability that could result from a woman’s presence in what was probably the only public place accessible to a respectable (and apparently unaccompanied) female. She chose a time, after nightfall, that was preferred by Meccan women for their excursions to the mosque. However, the cover of darkness apparently did not prevent her from being recognized; the rumor spread, and soon reached her father. This appears to be a very rare case of a documented premodern “honor killing,” and it is significant that it appears to have been anomalous and offensive in the eyes of many contemporary Meccan men—whether because they considered honor killing generally unacceptable or simply because they considered this particular woman innocent is unclear. Although there is no indication that gossip about this tragic incident contributed to the exclusion of the women from the mosque at night that occurred a decade later, it supports Ibn ʿAbd al-Ghaffār’s contention that rumors about rare incidents of alleged impropriety involving women in the mosque could become magnified beyond all proportion with the actual events.

Unsurprisingly, given his outspoken support for the ban, al-Haytamī has a very different view of the reliability and significance of reports about sexual impropriety in the mosque. As we have seen, he states that the ban was imposed “because of the shameful acts (qabāʾiḥ) that were well-known, nay, incontrovertibly reported (ishtahara bal-tawātara) to be committed by [the women] even in the mosque [itself].” Here he uses terminology derived from the discipline of ḥadīth to suggest that the reports of women’s misdeeds were so numerous as to preclude error or collusion (tawātur). Some of “precursors of zinā” were committed in the mosque—and on the very occasion of kissing the Black Stone.

One of the religious students (ṭalabat al-ʿilm)—may God have mercy upon him!—related to me that while he was kissing the Black Stone, a woman jostled him; he left the circumambulation area (maṭāf), and she followed him to its margin. He fell victim to her temptations (iftatana bihā) and went with her to her house; [however], God protected him from committing fornication (al-fāḥisha) with her, because she found he had no money with him (lam tara maʿahu shayʾan). I was [also] informed by someone who attended my classes … that when he was kissing the Black Stone a woman jostled him to kiss the Black Stone and he kissed her [instead]; so God afflicted him with a condition that made him completely give up [seeking] knowledge, then it made him a laughingstock and an object of ridicule to everyone who saw him. … May God give us refuge from His anger, testing, trials, and tribulations by His favor and grace, amen!127

Al-Haytamī’s comments support Ibn ʿAbd al-Ghaffār’s contention that shocking stories about sexual indiscretions in the sanctuary (and the possibility of their leading to actual zinā) played a potent role in evoking support for the ban. The first anecdote obliquely suggests that the woman in question was a prostitute: after taking home her helpless prey, she refuses to have sex only when he proves unable to pay. In the second anecdote, in contrast, it is not apparent that the woman is guilty of anything worse than an excess of religious fervor. The fleeting (if intimate) nature of the inadvertent physical contact is counterbalanced by the gravity and permanence of its purported effects; a promising religious scholar is transformed into a distraught social outcast. (Al-Haytamī continues with a description that, from a modern secular point of view, suggests mental illness.) It is clear that al-Haytamī invests contact between the sexes—whether flagrantly immoral (as in the first case) or apparently innocent (as in the second)—with an awesome potency that completely confounds the logic of Ibn ʿAbd al-Ghaffār’s sober and pragmatic approach to the possibility of sexual misconduct.

In addition to allegations of bias against women and denial that actual interdiction is legally permissible, Ibn ʿAbd al-Ghaffār engages with his opponents on the level of legal theory. He writes that their principal mode of argumentation “is the method of the people of independent reasoning (ahl al-ijtihād): basing the legal ruling on the rationale (ʿilla) and deriving it from the legal proofs of the Qur’an, the sunna, the practice of earlier generations (ʿamal man maḍā), and juristic principles (al-qawāʿid al-uṣūlīya), such as the principle of ‘blocking the paths’ (sadd al-dharāʾiʿ) and the principle that legal rulings change with the changing of [social] conditions, and the like.” Only secondarily do they invoke school precedents on the basis of taqlīd.128 Ibn ʿAbd al-Ghaffār is himself passionately opposed to this form of argumentation. He devotes a significant portion of his legal analysis to demonstrating that even the most famously brilliant and independent legal scholars of the past were, in fact, highly deferential to the established doctrines of their schools.¹²⁹ Thus, his first mode of refutation of the opposition’s arguments is simply to assert their lack of qualifications (ahlīya) to perform independent legal reasoning. Accordingly, he declares analysis of their original reasoning to be “a useless waste of time”—although, of course, he proceeds to engage with it in great detail. In his view, even those qualified to engage in independent legal reasoning based on the methodology of the founder of a specific school (al-mujtahid al-muqayyad) are nonexistent in his own time. The only valid line of argumentation is to adduce an applicable precedent from within a school.¹³⁰

After adducing an impressive series of examples intended to demonstrate that even the most distinguished muftīs of the Mālikī and Shāfiʿī madhhabs refused to diverge from the preferred (mashhūr)¹³¹ doctrines of their schools, Ibn ʿAbd al-Ghaffār concludes with great fervor that “for the likes of us,” it is impermissible to construct new legal rulings based on independent proofs (al-adilla al-ijtihādīya):

With respect to us, that is a forbidden action (min al-muḥarramāt); nay, it is a mortal sin (min al-kabāʾir); nay, it is one of the worst of them, because it is the greatest means to calamities and the principle path to mortal sins. There is no comparison between it and the “path” (dharīʿa) of corruption of which women are accused, or even to the ultimate corruption to which that path leads, because its utmost extent is the occurrence of adultery (zinā), which always occurs frequently and which harms no one except those who commit it (because they are the ones who bear the sin and they alone experience its evil consequences), while this “path” threatens to destroy the pillars of the sharīʿa, or rather, to efface its traces altogether. It is [the “path” of engaging in independent legal reasoning] that we must go to extremes in blocking, because it is the fitna whose fire cannot be extinguished.¹³²

In this passage, which is difficult to render in English because of its multifaceted and playful use of terminology, Ibn ʿAbd al-Ghaffār cleverly equates the violation of religious law that he believes his opponents are committing with the violation that they are attributing to women in justification of the ban. Whereas the behavioral infractions cited by opponents of the ban may ultimately lead to adultery, he argues that the illegitimate exercise of legal authority in which they are themselves engaged may ultimately lead to the complete destruction of the divine law. His remarks culminate in labeling their unauthorized exercise of ijtihād as a fitna, thus appropriating a central trope of his opponents’ arguments and (in a typical rhetorical move) applying it to the nonsexual transgressions of men.

This passage evokes the major legal argument of the supporters of the ban. At least as represented by Ibn ʿAbd al-Ghaffār, they regarded the prohibition of women’s attendance at the Sacred Mosque during the nighttime as an example of the juristic principle of sadd al-dharāʾiʿ, or the “blocking of the paths.” This principle, applied most extensively in the Mālikī school, posits that an otherwise permissible action may be prohibited if it leads to a forbidden action.133 In this case, although it is not inherently ḥarām for a woman to be present in the mosque at night, it would be rendered so by the likelihood that it would lead to actions that are themselves textually forbidden. In response, Ibn ʿAbd al-Ghaffār argues that sadd al-dharāʾiʿ is not, in fact, a comprehensive legal principle that can be applied systematically to all areas of the law; latter-day scholars cannot discern the subtle considerations that led Mālik to apply it in some cases but not in others, and can only follow his precedent.¹³⁴

Ibn ʿAbd al-Ghaffār also argues that his opponents do not actually sustain the implications of their argument, because the principle of sadd al-dharāʾiʿ dictates that the action in question actually becomes forbidden as a result of its likelihood of leading to prohibited actions. For instance, it is actually forbidden to engage in trade when the call to prayer summons worshipers to Friday prayers (due to the likelihood that it will lead one to omit the prayers themselves). In contrast, even the supporters of the ban do not argue that women’s presence in the mosque or performance of circumambulation during the hours of the ban has actually become ḥarām, such that any woman who did so would be committing a sin.135 They merely argue that it is permissible for the authorities to forbid her. In fact, it is less a question of declaring otherwise permissible actions (women’s nighttime attendance and circumambulation) forbidden than of declaring otherwise forbidden actions (punishing innocent women and preventing believers from engaging in acts of worship) permitted. This is the converse of the legal principle in question; Ibn ʿAbd al-Ghaffār facetiously argues that it should be called “opening the paths (fatḥ al-dharāʾiʿ)” rather than “closing the paths.”¹³⁶

In response to the argument that one must act to prevent even suspected harms, Ibn ʿAbd al-Ghaffār contends that the public interest in preventing harms must be balanced against the goods that are lost as a consequence.¹³⁷ Interestingly, he concedes that the benefits in a woman’s attending congregational prayers and helping to populate (iḥyāʾ) the mosques are outweighed by the benefit of protecting (ṣawn) the woman by keeping her at home.¹³⁸ However, the same does not apply to her performance of circumambulation, which yields great merit.¹³⁹ Furthermore, most vital human activities—such as trade—involve the potential that grave sins will be committed. Preventing sins by excluding women from the mosque makes no more sense than preventing wrongdoing by closing the markets.¹⁴⁰ Once again, Ibn ʿAbd al-Ghaffār implicitly places in question the unique urgency attributed to issues of female visibility and sexual morality.

Unlike Ibn ʿAbd al-Ghaffār, who posits that the harms that may be prevented by a legal intervention must be balanced against the benefits that may be lost, in his defense of the ban al-Haytamī posits a general principle that “the prevention of harms has precedence over the acquisition of benefits.”¹⁴¹ Furthermore, he argues that no woman will be prevented from performing an obligatory circumambulation of the Kaʿba altogether. For al-Haytamī, the only unacceptable harm would be a woman’s inability to fulfill the obligatory rites of the pilgrimage; for Ibn ʿAbd al-Ghaffār, women’s deprivation of voluntary acts of piety is harm enough.

According to Ibn ʿAbd al-Ghaffār, the second theoretical principle on which his opponents depend in their defense of the ban is that of “the changing of legal rulings with the changing of the circumstances” (taghayyur al-aḥkām bi-taghayyur al-aḥwāl).142 Indeed, al-Haytamī’s fatwa cites an anonymous source forcefully arguing that the valid ruling in the present day is that women should be prevented from going out to mosques “and no one would hesitate in [affirming] that except a fool who follows his fancies, because legal rulings change with the changing of the people of the times.”¹⁴³ Al-Haytamī also cites the precept (which he attributes to the Imam Mālik and asserts to have been accepted by the founders of all of the schools) that “New legal opinions arise for the people in proportion to the corruption that they innovate (yaḥduth li’l-nās fatāwā bi-qadr mā aḥdathū min al-fujūr).”¹⁴⁴

In contrast, Ibn ʿAbd al-Ghaffār emphasizes that even in cases of apparent social need, the great scholars of the past applied the established doctrines of their schools and did not resort to the (supposed) principle that rulings change with the changing of the times; indeed, this would have been permissible only for an absolute mujtahid not constrained by affiliation to a madhhab.¹⁴⁵ He presses his point by citing instances where the greatest authorities of the past declined to resort to new legal remedies even in the face of dire social consequences—for instance, when it seemed that theft or wine drinking could be deterred only by enhanced punishments.¹⁴⁶ If it were permissible to invent new legal solutions for emerging social needs, Ibn ʿAbd al-Ghaffār asserts, this would swiftly erode the foundations of the law. For instance, someone might observe that illegitimate sexual intercourse (zinā) and sodomy had become ubiquitous and propose relaxing the impossibly stringent evidentiary requirements, thus fundamentally revising a clear provision of the sharīʿa.¹⁴⁷

Another argument that Ibn ʿAbd al-Ghaffār is at pains to refute is the contention that women’s misbehavior in the mosque is a new problem. He argues that this premise is indispensable to his opponents’ application of the principle of sadd al-dharāʾiʿ, presumably because no new means of “blocking the paths” are necessary if no fresh problems have emerged.148 He points out that women’s “innovation” of going to the mosque adorned and perfumed has been the object of continuous comment and condemnation from the time of ʿĀʾisha onward.¹⁴⁹ He demonstrates that, far from being a novel phenomenon, this is a durable trope of the literature on the pilgrimage to Mecca and of polemics about legal innovations.¹⁵⁰ There is similarly no evidence to support the idea that misconduct palpably increased in the period immediately preceding the ban. In fact, he states that far worse rumors of women’s scandalous conduct in the Meccan sanctuary were circulating when he lived in Egypt in the time of Qāʾiṭ Bāy, whose reign had ended thirty years earlier.¹⁵¹ Furthermore, earlier scholars who complained about improper contact between men and women in mosques did not advocate barring women, but simply eliminating the innovative religious practices (such as the illumination of the mosques on noncanonical nighttime festivals) that gave occasion for provocative behavior.¹⁵²

By inventing a new legal response to an old situation that had already been addressed by the scholarly authorities of the past, Ibn ʿAbd al-Ghaffār argues, his opponents are guilty of a religious innovation (bidʿa). In the opening passage of his work, he characterizes the ban as “an extremely repugnant innovation, the likes of which has never been heard of in the Islamic era or, indeed, in the Age of Ignorance [before Islam].”¹⁵³ This is one of the book’s most pervasive and devastating rhetorical devices. Like his characterization of their legal reasoning as a fitna, from the point of view of his opponents this would have been a paradoxical—and perhaps willfully perverse—accusation; after all, it was precisely of “innovation” that women were accused (in the famous statement of ʿĀʾisha and elsewhere). However, Ibn ʿAbd al-Ghaffār argues that by stipulating the parameters and timing of women’s worship in the Sacred Mosque, they are in effect legislating on acts of worship. By “preventing women … from worshiping at one time and commanding that they do so at another, and by determining each of those times … without this being stipulated by the [divine] Legislator,” they are applying their own common sense or intellectual standards (raʾy, ʿaql) or indeed their vain fancies (wahm) in place of the legal indicator (dalīl sharʿī) that is alone the proper basis for establishing ritual practice.¹⁵⁴

The response of Ibn ʿAbd al-Ghaffār’s opponents to the objection that women’s misbehavior in the mosque was far from a new phenomenon seems to have been, quite reasonably, that they had never intended to imply that it was chronologically recent. In fact, bidʿa is a normative rather than a temporal category; they could quite appropriately argue that it was innovative (that is, alien) with respect to the religion without having been newly manifested in the period preceding the ban. The fact that an abuse has prevailed over a long period of time does not make it less forbidden as a matter of law, as is the case with illegal taxes (al-maks), which have been notoriously ubiquitous despite their religious prohibition. Ibn ʿAbd al-Ghaffār retorts in response that this is not an analogous case; far from being a long-tolerated abuse, women’s circumambulation of the Kaʿba at night is an act of piety that prevailed from the lifetime of the Prophet until the year of the ban. It is the ban itself that is an objectionable innovation that has been newly introduced into the religion. Indeed, he goes so far as to compare the ban to an illegal tax on the Kaʿba, one that reaches as high as 25 percent because it bars “more than one half of the umma (Muslim community)” almost half of the time.155

The fact that there was no textual basis for the newly introduced time contraints on women’s ritual activities in the mosque was probably one of the most effective arguments against the ban. Perhaps precisely because of this fact, it seems that the response of supporters was largely to ignore it. It is striking that both in his brief narrative of the imposition of the ban and in his fatwa supporting it, al-Haytamī completely omits to mention that women were being excluded only at specific times of day. Indeed, reading his treatment of the issue in isolation one would assume that women were excluded from the Great Mosque altogether—however, because this would have prevented them from performing the pilgrimage, such a blanket ban would surely have attracted widespread condemnation. (The timing of the ban is obliquely acknowledged only when al-Haytamī states that an unmarried young woman may wait to perform circumambulation when the maṭāf is sparsely populated in the heat of noonday—an inversion of the traditional convention that she should do so under cover of darkness.¹⁵⁶)

In pointing to the arbitrary and innovative character of the ban, Ibn ʿAbd al-Ghaffār repeatedly emphasizes that a temporally limited exclusion of women only from the mosque itself (and only between specific hours) does not achieve the stated objective of the ban, the prevention of sexual mixing and impropriety. He points out that with the exception of the mosque itself during the hours of the ban, women go wherever they want, wearing whatever they want.157 The stated objective of protecting women from fitna would be achieved only by preventing them from leaving their homes, which is far from the case. Indeed, upon being expelled from the mosque at night a woman can go anywhere she pleases.¹⁵⁸

Although Ibn ʿAbd al-Ghaffār presents extensive original analysis in rebuttal of his opponents’ legal reasoning, he fundamentally denies the validity of such analysis for non-mujtahids. Although he engages dialectically with the supporters of the ban, in his own view its legal status can be determined only with reference to the transmitted doctrines of the four schools. In surveying the history of legal doctrine on this subject, he emphasizes one fundamental point throughout: whereas scholars of various schools have expressed varying degrees of disapproval for mosque attendance by women of different categories, they have never actually declared it to be forbidden. He argues that he knows of not a single scholar from any school who argues that going to mosques is categorically ḥarām for women, such that any woman (even if elderly and unadorned) who entered a mosque and performed a single prayer would be committing a forbidden action.¹⁵⁹

Within the framework that Ibn ʿAbd al-Ghaffār has constructed, which defines the interdiction of women’s mosque attendance either as a punishment or as an instance of “forbidding wrong,” it suffices to show that it is not ḥarām in the strict legal sense and that its status is subject to disagreement. To support his view, Ibn ʿAbd al-Ghaffār must resort to some subtle reintepretation. When Ibn Rushd declares of his youngest category of women that “the preferred option is that she not go out at all,” Ibn ʿAbd al-Ghaffār explains that “the most that can be understood from this expression is that her going out is sub-optimal (khilāf al-awlā) or extremely undesirable; if [such women] wanted to go out, it would not be obligatory to prevent them.”¹⁶⁰

Ibn ʿAbd al-Ghaffār also addresses the opinions of more recent Mālikī scholars who suggest that due to the corruption of the times, latter-day women should be forbidden from going to mosques altogether. Once again, he places his emphasis largely on the enduring authority of the foundational texts of the school. He points out that the later authorities cited by his opponents do not state that forbidding women to go to mosques is the madhhab, but first cite the established doctrine and then add comments about their own preferences. In his view, they wish to encourage women’s guardians to keep them at home (which is in any case their prerogative) rather than to establish a new prohibition to be enforced by the authorities. Their own opinions, rather than constituting legal norms per se, are expressions of pious caution (min bāb al-waraʿ).161

Ibn ʿAbd al-Ghaffār’s arguments in this section of his work, where he surveys the opinions on women’s mosque attendance in the standard manuals of the four schools of law, can be described as an example of “virtuoso taqlīd.” His overt approach is to reproduce and scrutinize the relevant statements transmitted in the legal sources of the past, all the while emphatically reasserting their authority. The results of this approach, however, are far from the static repetition of a sterile set of authority statements; rather, they constitute a thorough reinterpretation of the law. By framing the issue in terms of the (arguable) requirements of “forbidding wrong,” which limit interdiction to cases of actual legal prohibition (taḥrīm), he is able to extract a radical affirmation of women’s right to frequent mosques from a set of texts that often express reservations or disapproval toward this activity.

As we have seen in an earlier chapter of this study, it was often a delicate and ambiguous process to map the range of formulations used in legal texts onto a dichotomy between “permitted” and “forbidden.” For instance, the Prophet’s command not to prevent women from visiting mosques could be interpreted either as a legally binding prohibition or as an optional moral exhortation. Similarly, the term makrūh could be interpreted as indicating either that the action in question was forbidden or that it was merely suboptimal (karāhat al-taḥrīm versus karāhat al-tanzīh).¹⁶² Often, this terminological flexibility was used to limit the prerogatives of women and maximize those of men. In this case, in contrast, the semantic openness of such terminology is consistently exploited for the opposite objective: to maximize the area of discretion where women (or their individual male guardians) voluntarily choose among a range of alternatives in light of their own circumstances and needs.

Ibn ʿAbd al-Ghaffār’s resourceful assertion of the liberatory potential of (creative) adherence to established school doctrine in the face of (reactionary) claims of original legal reasoning inverts the accepted wisdom about the comparative social impact of ijtihād and taqlīd. It once again demonstrates that, as Sherman Jackson has observed, “the tendency to associate such categories as ‘liberal’ or ‘progressive’ with ijtihād and ‘conservative’ or even ‘patriarchal’ with taqlīd is not only unwarranted but dangerously misleading.”163 However, in another respect the controversy over women’s access to the Great Mosque of Mecca diverges from the pattern analyzed by Jackson. He argues that virtuoso displays of legal argumentation were by this period (the tenth/sixteenth century) framed in terms of fresh legal analysis of authoritative school sources, rather than of the primary sources of the Qur’an and ḥadīth, because by that point the institutionalization of the Sunnī madhhabs had established a “regime of taqlīd.” In the controversy at issue here, however, it seems to have been quite possible for scholars to introduce overt elements of ijtihād into their legal arguments. To the extent that we can trust Ibn ʿAbd al-Ghaffār’s representation of the case of his opponents, they seem to have emphasized original legal reasoning far more than any attempt to assert a restrictive interpretation of the relevant language in the legal manuals of their schools. Although al-Haytamī does make some (problematic) effort to represent his opinion as continuous with those of prominent Shāfiʿī authorities, he clearly sees no necessity to cite or interpret the relevant language from the school’s standard works of furūʿ. In this case, the “regime of taqlīd” is not a given constraining all of the participants in the debate, but an ideal that Ibn ʿAbd al-Ghaffār must explicitly strive to assert.

In our analysis of the historical development of the legal argumentation on the issue of women’s mosque attendance in chapter 1 of this study, we identified several different stages. The first, which may be termed preclassical, distinguishes as a matter of course among different stages in the female life cycle. Although explicit rationales are not offered by the earliest texts, there seems to be a tacit assumption that women’s social roles change as they move through different stages of life. At a secondary (classical) stage, from approximately the fifth/eleventh century, this differentiation among different age cohorts is systematically rationalized with reference to fitna, the sexual temptation or disorder that may result from women’s mixing with men. Finally, in a postclassical stage beginning approximately in the seventh/thirteenth century, there is a growing trend to regard all women (to the threshold of senescence and death) as possible sources of fitna, effacing the traditional division of women into age cohorts. Each stage did not decisively and irreversibly replace the one preceding it, however; they remained as alternatives and as superimposed elements within a growing repertoire of interpretive alternatives.

In his critique of the ban, Ibn ʿAbd al-Ghaffār repeatedly emphasizes distinctions among different groups of women.¹⁶⁴ He consistently differentiates among young and old women and also frequently invokes distinctions among those who are well dressed and those who are shabbily attired, those who are perfumed and those who are not. Indeed, in his inquiry to the scholars of Egypt and other international centers, it is the ban’s failure to distinguish among different categories of women that he centrally invokes as evidence of its illegitimacy. He even coins the distinctive term taʿmīm (generalization) to refer to the illegitimate extension of strictures applying to some women to all women without distinction. In contrast, although al-Haytamī occasionally acknowledges distinctions among women, his conclusion is categorically that the authorities ought to prevent “women” from going out to mosques if abuses occur. In part, the two scholars’ different views may reflect the greater conservatism of the Mālikī school on this point, at least on a legal (rather than a rhetorical) level.

However, ultimately Ibn ʿAbd al-Ghaffār is advocating not the reaffirmation of distinctions between different categories of women, but the entitlement of individual women to worship unmolested unless they are personally guilty of infractions. His arguments focus on concrete actions (inappropriate dress, perfuming, mixing with men, or even sexual misbehavior) and the requirement that they be proven against specific offenders. In this respect, his approach echoes that of ḥadīth specialists such as al-Nawawī and Ibn Ḥajar al-ʿAsqalānī, who similarly (as we have seen in chapter 2) emphasized the comportment of individual women. However, Ibn ʿAbd al-Ghaffār mounts a far more direct assault against the gendered logic of postclassical limitations on women’s mosque access. By emphasizing tangible actions rather than the diffuse concept of fitna, he circumvents what by that time had become the term’s global and essentialistic association with the presence and visibility of women. He tacitly refuses to deal with the legal status of the atmosphere of, or potential for, sexual temptation amorphously associated with women; rather, he focuses rigorously on the overt actions of morally responsible individuals.

Indeed, it is largely Ibn ʿAbd al-Ghaffār’s focus on issues of individual moral desert that determines the outcome of his arguments. Fitna does not necessarily require an agent; a woman does not have to “commit” it for it to exist, nor does she have to be at fault for it to require intervention. By framing the exclusion of women from the mosque as a “punishment,” Ibn ʿAbd al-Ghaffār is able to argue that it is unjust (and unjustifiable) in the absence of individual culpability. It is this prior choice of legal categories (“punishment” and “forbidding wrong”), which precedes and conditions his explicit argumentation, that dictates the outcome of his discussion. It should be noted that, even given this choice, his premises are not unassailable. His own authority al-Qarāfī, although he did advocate tolerance in cases of legal disagreement, states that neither punishment nor the duty of “forbidding wrong” is necessarily contingent on the moral culpability of the individual involved. Rather, these interventions may seek to secure benefits or avoid harms.165 Ibn ʿAbd al-Ghaffār’s emphasis on the moral agency of individual women is thus an affirmative choice, one that also informs his repeated distinction between moral exhortation (which he hopes will motivate poorly comported women to change their behavior voluntarily) and actual coercion.

THE FATWAS

The fatwas presented by Ibn ʿAbd al-Ghaffār demonstrate that he was able to elicit supportive responses from prominent jurists of all four schools of law. There are some discernible differences among the opinions originating from different madhhabs. For instance, the Ḥanafī chief judge of Egypt Shams al-Dīn al-Samdīsī, whom Ibn ʿAbd al-Ghaffār identifies as “the sultan’s imam,” states that it is not permissible to prevent women from circumambulating the Kaʿba at any time of day, but continues, “As for their praying in the mosque, he stated in al-Kāfī: The valid opinion today is that it is undesirable [for women to attend mosques] for all of the prayers.”166 This is the most restrictive opinion in the set of fatwas, although (perhaps significantly) the other two Ḥanafī fatwas express no such sentiments. Mālikī authorities seem distinctively concerned with identifying and upholding the established doctrine of their school, which they hold to allow women’s mosque attendance. For instance, Nāṣir al-Dīn al-Laqānī¹⁶⁷ notes Khalīl’s remark in al-Tawḍīḥ that “in our time” women should be forbidden to go to mosques, but concludes, “He mentioned this in the mode of personal speculation (ʿalā wajh al-baḥth), but what he mentioned first is the transmitted doctrine (al-manqūl) on the issue.”¹⁶⁸ Sharaf al-Dīn Yaḥyā al-Damīrī brings up the same remark of Khalīl’s, but firmly asserts, “Personal speculations (al-abḥāth) do not refute transmitted doctrines or render them void, and neither does reasoning on the basis of ʿĀʾisha’s statement [that the Prophet would have forbidden women to go to mosques if he had seen what they have innovated] put an end to the principle of the school.”¹⁶⁹

Overall, the content of the fatwas suggests that the pointed nature of the inquiry (and perhaps the selectivity of the compiler) sufficed to ensure a fairly high degree of unanimity among the responses. However, the fatwas vary widely in tone and emphasis. On one end of the spectrum, the Ḥanbalī scholar Shihāb al-Dīn al-Shuwaykī¹⁷⁰ questions whether the alleged corruption is happening during actual circumambulation or even within the mosque, declaring that only “one who believes in God and the Last Day” will seek out the mosque for prayer and circumambulation. Furthermore, women should not be excluded for the alleged infractions of others: “How can this one be held accountable for the sin of that one, when God Most High says, ‘No soul will bear another’s burden’?!”¹⁷¹ In contrast, the Medinian Shāfiʿī Sirāj al-Dīn ʿUmar ibn ʿAbd al-Raḥīm emphasizes the danger of bad behavior and the consequent legitimacy of interdiction. In cases of infraction, the ruler (walī al-amr) may “prevent and threaten” the woman in question. If she obstinately goes out in violation of the conditions or intentionally mixes with men around the Kaʿba, then she is a sinner, not a virtuous worshiper. However, the good must be distinguished from the corrupt based on manifest signs, not by spying and baseless speculation.¹⁷²

Most of the fatwas collected by Ibn ʿAbd al-Ghaffār seem like relatively perfunctory and predictable responses to a biased formulation of the legal problem. Two of them, however, are of a magnitude and substance that suggest significant personal investment on the part of their authors. One of these is by Aḥmad ibn ʿAbd al-Ḥaqq al-Sunbāṭī, a Shāfiʿī jurist and a popular and influential preacher (wāʿiẓ) at the Azhar Mosque in Cairo who sojourned in Mecca in the early 930s.173 Ibn ʿAbd al-Ghaffār presents only excerpts from al-Sunbāṭī’s fatwa, which he describes as both extensive and excellent.¹⁷⁴ The vehemence of al-Sunbāṭī’s denunciation of the ban rivals that of Ibn ʿAbd al-Ghaffār’s; indeed, their arguments appear to be so closely entwined that at least at one point the voices of the two authors become indistinguishable.¹⁷⁵ Al-Sunbāṭī begins his fatwa with the resounding affirmation that “someone who prevents women from circumambulating in the way described errs in doing so and is a wrongdoer who transgresses the limits (ḥudūd) of God Most High.”¹⁷⁶ Although it is unknown how al-Sunbāṭī disseminated his fatwa or what the response may have been, his intervention in the contemporary controversy over the licitness of coffee suggests the possible impact of his opinion. His fatwa against coffee is supposed to have inspired rioting in the streets of Cairo, as well as a new round of fatwas on the legal status of the beverage.¹⁷⁷

Another lengthy opinion suggests a more institutionalized mechanism to endow a fatwa with force and effectiveness. This is the fatwa of Aḥmad ibn al-Ṭayyib al-Ṭanbadāwī, the leading Shāfiʿī legal authority of the Yemeni town of Zabīd.178 Al-Ṭanbadāwī’s opinion covers much familiar ground, including the citation of school doctrine that it is preferable for a young or noble woman to delay her circumambulation until she can be concealed by darkness, the assertion that the ban violates ḥadīth texts forbidding prevention of anyone from circumambulating and women from visiting mosques, and the insistence that individual women can be sanctioned only if they are observably perfumed or ill-behaved.¹⁷⁹ Al-Ṭanbadāwī notes that, although it is more meritorious for women to pray in congregation at home, manuals of ḥisba do not state that women should be excluded from mosques but instead instruct that men and women should be separated by a barrier when listening to a preacher. Because listening to preachers in mosques is at best a pious action on the part of old women and those without attractive appearances, then a fortiori women should not be excluded from the mosque if they intend to perform a ritual that is religiously required. Significantly, Ibn ʿAbd al-Ghaffār notes that al-Ṭanbadāwī’s fatwa was endorsed by “other scholars of Zabid,” who added signed notes of approval below his opinion.¹⁸⁰ Thus, not only was the fatwa a lengthy and detailed legal argument produced by the leading authority of the legal school that overwhelmingly predominated in Zabid, but the solicitation of supporting signatures rendered it a group opinion by the local establishment. Fatwas like those of al-Sunbāṭī and al-Ṭanbadāwī suggest that, despite the dearth of legal opinions on this controversy preserved outside of Ibn ʿAbd al-Ghaffār’s collection, it was a cause célèbre in its own time. Although the ban itself was very vulnerable to legal critique and a wide range of scholars opposed it, their agreement on this one point disguised the diversity of their sentiments about the propriety of women’s presence in the mosque and the legitimacy of regulatory efforts by the authorities.

CONCLUSION

Although it is often possible to juxtapose legal arguments about the desirability or undesirability of women’s mosque attendance with descriptions of women’s mosque-based behavior originating from the same general time and place, usually the connection between the two is fairly loose and conjectural. The documentation generated by the events of 937/1530–31 provides a unique opportunity to examine the dynamics connecting social practice, governmental regulation, and legal discourse in a concrete case where different agendas collided in the most sacred mosque of the Islamic world.

Ibn ʿAbd al-Ghaffār’s account illustrates that the very issues that had been debated on a theoretical level over the centuries—specifically, the division of women into separate categories by age cohort and comportment and the distinction between daytime and nighttime—were disputed on the ground as well as in the more rarified arena of textual exegesis. As we have seen, the early doctrines of the four schools posited different behavioral parameters for women of different age cohorts, whereas criteria developed within the tradition of ḥadīth commentary proposed that women’s access be regulated on the basis of dress and behavior. Within the latter tradition, scholars like Ibn Ḥajar al-ʿAsqalānī had raised the question of whether alleged “innovations” in women’s self-presentation entailed sweeping changes in the law or merely restrictions on individual offenders. At a very basic level, the debate recorded by Ibn ʿAbd al-Ghaffār is over the question of whether “women” represent a monolithic category whose behavior can be regulated without regard to individual age or conduct. More obliquely, but in a way that is eloquent by its omissions, he disputes whether fitna—as a presumptive capacity for sexual allure that can be associated with women, regardless of their individual behavior or moral deserts—can function as a rationale for categorical limitations on all women.

The distinction between night and day—one that, as we have seen, was both well established and disputed in the legal literature—also had immediate relevance for the ban of 1530. In the course of these events, a deeply seated local belief that the hours of dusk or darkness were the most appropriate times for women’s public worship collided with a newer (or imported) attitude that it was perilous and disreputable for women to be out at night. The colorful accounts of the seventeenth-century Ottoman traveler Evliya Çelebi suggest that conventions regarding women’s mobility at different times of day varied in different regions of the Ottoman Empire, accommodating both the idea that respectable women should venture out only under cover of darkness (which prevailed, for instance, in Cairo) and the opposite assumption that it was safe or proper to do so only during the day. As Robert Dankoff observes, “Evliya assumes that his readers—elite Ottomans like himself, with Istanbul as the reference point—will agree that gallivanting at night is not something women should do.”181 Indeed, there is some evidence that in later times excluding women from mosques at night was an Ottoman policy.¹⁸² However, more evidence would be required to establish whether the incidents at Mecca in 937 AH reflected a wider Ottoman policy. Furthermore, without knowing the identity of the amīr who initiated the ban, it is impossible to determine whether it can be seen as an intervention by the Ottoman authorities at all.

Ibn ʿAbd al-Ghaffār’s unusual account reflects the multiple constituencies and agendas involved in the identification, framing, disputation, and resolution of a significant legal question. Not only the temporal rulers (who sought to preserve public order and perhaps to assert the primacy of their preferred school of law) but also the mosque guards (who sought to minimize their own labor by limiting the mosque’s accessibility and hours) seem to have played central roles. Although Ibn ʿAbd al-Ghaffār represents the ʿulamāʾ as having been compelled to respond hastily to an issue they did not raise,183 he also sees their authority and prestige as vital to the ban. He urges them to speak to the amīr if they do not genuinely support it, as their maḥḍar is his only basis for the initiative; as for the mosque guards, they display it to anyone who objects and declare, “This is by order of the ʿulamāʾ, not our order or that of the amīr.”¹⁸⁴ At the bottom of the pyramid are ordinary individuals who take it upon themselves to discipline and exhort their fellow Believers. Ibn ʿAbd al-Ghaffār depicts these people as self-aggrandizing hypocrites who use the religious duty of “commanding good and forbidding wrong” to justify harassing and abusing women, and he argues that they are emboldened by the scholars’ justifications for barring women from the mosque.¹⁸⁵ Although the influence of such freelance “commanders of right” is difficult to gauge, it is quite possible that such moral pressure from below may have influenced the holders of more overt religious authority. Thus, the ʿulamāʾ and their legal argumentation stood at the intersection of the agendas and influence of multiple groups; although their authority sustained the ban, Ibn ʿAbd al-Ghaffār’s exhaustive picture suggests that they were by no means autonomous in producing it.

Ibn ʿAbd al-Ghaffār presents no account of the suspension of the ban, whether it was officially reversed or gradually and tacitly fell into desuetude. Furthermore, no contemporary chronicles seem to cover these events; that of Ibn Fahd, which would be the most likely source, has a lacuna covering the key period in question. By the time Ibn ʿAbd al-Ghaffār completed his work (or perhaps when he later corrected or revised it), the ban was already lifted, a fact to which he refers in passing.186 (Based on his own account and on the tone of the book, it would seem that the initial composition of the work must have occurred when it was still in force or at least still enjoying substantial juristic support.) Unless further sources come to light, it is thus impossible to know whether the restoration of women’s access to the mosque at night reflected the successful resistance of the women of Mecca (as in the case of their continued participation in the public celebration of the Prophet’s birthday), the influence of their powerful male kin, or the scholarly success of a legal critique representing the ban as an unfounded innovation. It seems likely that all of these factors may have played a role.

Overall, Ibn ʿAbd al-Ghaffār’s account—which depicts legal scholars as relatively passive recruits to a plan initiated by others—tends to represent legal reasoning as a dependent variable, wielded ex post facto by scholars with different preexisting investments in the local Meccan political order and the functioning of the mosque. His own response seems to be grounded in a visceral and preanalytic reaction to the injustice of seeing innocent women harshly ejected from the site of their religious devotion; only secondarily is it elaborated in the form of a legal treatise. However, the passion with which he pursues both the fashioning of his legal arguments and the solicitation of opinions from others attests to the efficacy that he attributes to sharʿī discourse. If he depicts his adversaries’ initial responses as superficial and self-interested, he clearly maintains the faith that a shared commitment to the authority of the law can be activated to vindicate the rights of Believers, both male and female.