Shari`ah and State Formation: Historical Perspective

This Article focuses on issues of Islamic discrimination against women and asks how centuries of legal practice in Shari'ah courts illustrate Muslim societies' regard of the witness of women, women's work, women's seclusion, and the existence of or the need for a private/public divide in a woman's role in society. Furthermore, this Article explores the legal system when Shari'ah courts practiced Shari'ah law before the coming of the West or the modernization of law in Muslim countries. Were presumptions, such as the nature of women, at the heart of the system, or were rules of evidence the determinants of justice? How closely followed were the conclusions of jurists and mufti's (jurisconsults) when it came to decisions made by qadis (judges)?

Finally, how can we define justice in Islamic courts? I deal with these questions through two main inquiries using Shari'ah archival records from Egypt and Palestine during the Ottoman period and into the nineteenth century. The first inquiry deals with the public/private divide, which is the usual justification for giving less credibility to the witness of women. The second inquiry will deal with archival evidence regarding the witness of women including their role as expert witnesses.