Many thinkers wonder whether reform is best achieved by working within doctrine, or Fiqh, or by rejecting it. Kristen Stilt argues that this question is a trap and it blinds us to some important aspects of history that would be useful in bases for reform. After some introduction, she presented some examples from Medieval Cairo to flesh out this view.
Prof. Stilt points out that the realm of Islamic law goes beyond Fiqh. Why has doctrine become synonymous with Muslim law? In medieval Muslim states there was a separation of power between military and religious rules and both participated in law making. The Sultan was the head of the political unit. He kept order and dictated policy. The religious legal scholars, on the other hand, wrote the books that make up Fiqh; they focused on religious doctrine. Sometimes they opposed each other, but more often they worked as partners. They issued commands to the people, but we do not talk about the orders made by the Sultan when we talk about Muslim law. Part of the problem here is that we have records of the determinations of the scholars, but the Sultan's orders were not reproduced and saved. However, there were historical records taken. Some polities appointed an official who chastised or commanded people who were not following law. There were handbooks for these officials prepared by the scholars. These officials had discretion and choices in applying the law and they applied law from both sources.
The first example takes place in Cairo in 1422, during the preparation for the pilgrimage to Mecca. Everyone wanted to see the procession, including women, so they camped out over night. When the men and women mixed, inappropriate behavior resulted. The official forced the women leave, but ultimately they returned. The manuals for this official provide guidance about men and women mingling in public. There are some provisions about preventing women from being in public frivolously, but others were about punishing men for harassing women. Boys should be punished for speaking to women in the market unless the where purchasing goods. The manuals instructed officials to pay attention to men lurking in places where women congregate. In this case, the official chose to send the women away, not the men, but this was not required by the Fiqh.
The second example involved a Sultan, as opposed to a lower-level official. During a plague, the Sultan gathered the scholars to determine why the plague was sent and how they could get rid of it. The first scholar responded that fornication was the cause. Another suggested that women be forced to stay indoors. A third agreed that this would be in the public interest, a secular claim. The Sultan decided to ban all women from going outside. How was the move made from fornication to keeping women out of the streets?
These stories are meant to show, inter alia, that there are other things that we can look at, besides Fiqh, in our historical bases for reform. It could be argued that policy is not Islam, but she argues that Fiqh recognizes that it has a necessary partner in policy. Also, there is evidence that policy choices bled into the Fiqh, which reified inegalitarian policy choices that were not essentially religious.