2.1 The classical scholars’ perspectivesFootnote ⁵

Although there is no hierarchical authority in Islam, a group of religious scholars emerged around the early ninth century who specialised in the study of the Qur'an and the sayings of the Prophet and who claimed to be the authoritative guardians of Islamic tradition (Zaman, Reference Zaman, Masud, Salvatore and van Bruinessen2009, p. 230). During the first centuries of Islamic history these religious scholars set out to interpret the sources of Islamic law in schools of law, which eventually led to the formation of four major schools of Sunni jurisprudence: the Hanafi, Hanbali, Maliki and Shafi‘i schools.Footnote ⁶ Scholars usually adhered to the authority of doctrines within one school of law, a process which is called taqlid, and which literally translates as ‘imitation’. Three of the four major Sunni schools (the Hanbali, Maliki and Shafi‘i schools) reject the principle that a woman can be appointed as a judge (al-Sharbini, Reference Al-Sharbini1990; al-Dardir, Reference Al-Dardir1986; Ibn Qudama, Reference Ibn Qudama1985). The exception is the Hanafi school, which falls in the middle of two opposing positions, contending that a woman can be appointed as a judge in civil cases but not in criminal ones (al-Qasani, Reference Al-Qasani1986).

Followers of the Hanbali school believe that women are deficient in intellect and weak in opinion and therefore only males are qualified to be judges. The situation is further complicated by the fact that they do not consider it proper for women to be present in audiences with men and litigants (Ibn Salim, Reference Ibn Salim2010). They use the following Prophetic saying as an argument for their point of view, among others: it was reported by Abu Bakra that when news reached the Prophet that the Persians had appointed the daughter of Chosroes as their ruler, he said: ‘'No people will prosper who appoint a woman in charge of their affairs’ (Ibn Hanbal, Reference Ibn Hanbal1993, hadith no. 27535).Footnote ⁷

The Maliki school also supports the proposition that it is prohibited for women to be judges. They use the same arguments provided by the Hanbali school, with a stronger focus on women's deficient intellectual capacities and women's testimony being worth half that of men (al-Dasuqi, Reference Al-Dasuqi2008). They use the following verse from the Qur'an to support their opinion: ‘And get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her.’Footnote ⁸

Consistent with the Hanbali and Maliki schools of jurisprudence, the Shafi‘i school contends that women are not allowed to be judges because of ‘deficiencies’ in their intellectual capacities. In addition, its followers argue that men are superior to women since men maintain women in their homes (e.g. men have a religious duty to provide for their wives financially), hence, it is not admitted that women can judge men in courts. They use the following Qur'anic verse to justify their point of view (al-Qalyubi and Umayra, Reference Al-Qalyubi2011): ‘Men are the protectors and maintainers of women, because Allah has given the one more [strength] than the other, and because they support them from their means.’Footnote ⁹ This verse is known as the verse of qawwamma (‘superiority’). Finally, the followers of this school claim that women cannot work as judges because it is stipulated in the Qur'an that ‘Women shall have rights similar to the rights against them, according to what is equitable, but men have a degree [of advantage] over them. And Allah is exalted in power and wise.’Footnote ¹⁰

The scholars of the Hanafi school take a different point of view. They assert that women are eligible to be judges except in cases involving the so-called hudud and qisas (‘retaliation’) crimes, as a woman's testimony is not admitted in these kinds of cases.Footnote ¹¹ In contrast to the other three schools of Islamic jurisprudence, the scholars of the Hanafi school base their opinions not so much on a literal interpretation of the Qur'an and the sunna as on logic. Based on an analogy with the rule that qualifies women to serve as witnesses in all but the hudud and qisas cases, they argue that women can serve as judges in all cases where they can also serve as witnesses.

Just as three out of four schools of law reject women's ascent to the bench, three out of the four major interpreters of the Qur'an (Ibn Kathir, al-Suyuti, al-Qurtubi) have indicated that the so-called qawwamma (‘superiority’) verse should be considered as evidence for women's ineligibility to be appointed as judges (Ibn Kathir, Reference Ibn Kathir1998, p. 84; al-Mahalli and al-Suyuti, Reference Al-Mahalli and Al-Suyuti2011, p. 105; al-Qurtubi, Reference Al-Qurtubi2011, p. 201). In contrast, the fourth interpreter, Ibn Jarir al-Tabari (839–923),Footnote ¹² as well as Ibn Hazm (994–1064),Footnote ¹³ believed that women were eligible to be judges (Ibn Hazm, Reference Ibn1990). Both men based their opinion on the Prophetic hadith concerning the appointment of the Persian king's daughter as head of state. This hadith, both men concluded, prohibits women from being caliphs (‘presidents’), not judges. In addition, they argued that all verses of the Qur'an stipulating duties and assignments are addressed to both women and men alike.

This brief overview shows that the majority of the classical scholars of Islamic shari‘a held the view that it is not acceptable or permissible for a woman to be a judge. On the basis of Qur'anic verses and Prophetic sayings they argue that: (i) men are superior to women in intellect; (ii) men are superior because they maintain women; and (iii) men and not women should be in charge of public affairs. Although their interpretations of the fundamental texts of Islamic shari‘a did not remain completely unchallenged, until the second half of the twentieth century there are hardly any accounts of women serving as judges in the Muslim world.Footnote ¹⁴ This changed in the early 1950s, when Indonesia was at the forefront of welcoming women into the judiciary in the Muslim world, notwithstanding the fact that the Shafi‘i school is the dominant school of jurisprudence among Indonesian Muslims. The same applies to such countries as Tunisia and Morocco, where the Maliki school of law is recognised as the official school of thought. We explain this discrepancy between the teachings of the schools of law on the one hand and actual practice on the other hand in the next section, which deals with the practice of reinterpreting Islamic shari‘a.

2.2 The contemporary scholars’ perspective: reinterpretation and modernisation

Although the authority of the religious scholars was never uncontested (cf. Kersten and Olsson, Reference Kersten and Olsson2013; Zaman, Reference Zaman, Masud, Salvatore and van Bruinessen2009, pp. 207–211), the encounter with the West and the introduction of mass education challenged their authority in unprecedented ways (Kersten and Olsson, Reference Kersten and Olsson2013; Zaman, Reference Zaman, Masud, Salvatore and van Bruinessen2009, pp. 207–211). Responding to British domination, a reform movement called al-Nahda (which literally means ‘renaissance’) originated in Egypt at the dawn of the twentieth century, and then spread to other parts of the Arab World. Aiming to bring Islamic shari‘a into accord with the demands of modern times, reformers believed that the doctrines of the schools of law were inflexible and unsuited to adapt to the needs of time. What was refused in the tenth century could be approved in the twentieth century.Footnote ¹⁵ Binding authority, so they believed, should no longer rest with the schools of law, but rather with the Qur'an and the sunna only, and they encouraged, sometimes even urged, ordinary Muslims to read and interpret the sources themselves, an act that is called ijtihad. Opposed to ijtihad is the Islamic principle of taqlid. As noted above, taqlid literally means ‘imitation’, and in the context of Islamic law it refers to the strict following of the legal rulings of one of the four schools of Islamic jurisprudence.Footnote ¹⁶

Late nineteenth- and early twentieth-century contestations on religious authority have sometimes been presented as a confrontation between religious scholars on the one hand, and new religious intellectuals with no formal religious education on the other hand (Salvatore, Reference Salvatore, Masud, Salvatore and van Bruinessen2009; Zaman, Reference Zaman, Masud, Salvatore and van Bruinessen2009, p. 212). Likewise, religious scholars have been portrayed as an elite class with little understanding of what goes on in the modern world (Zaman, Reference Zaman, Masud, Salvatore and van Bruinessen2009, p. 214). In the Egyptian case, however, the most prominent reformers numbered among their ranks religious scholars such as Muhammad ‘Abduh (1849–1905) and Rashid Rida (1865–1935), all of whom received a traditional religious training at the leading Sunni centre of Islamic and Arabic learning in the country: al-Azhar.Footnote ¹⁷ ‘Abduh even served as Egypt's leading Mufti from 1899 until 1905. This shows that the position and authority of the religious scholars was also challenged from within, and this continues to be the case (Sonneveld, Reference Sonneveld2012; Brown, Reference Brown and Hefner2011; Zeghal, Reference Zeghal1999). The matter of women serving as judges illustrates this very well. For example, in 1952 the Fatwa Council of al-Azhar issued a fatwa stating that ‘There is general consensus that women are not suitable for judicial authority and that it is sinful to charge her with such. The matter is not open for interpretation unless binding proof is had, for there is consensus on the matter’ (Abdelkader, Reference Abdelkader2014, pp. 352–353; see also al-Mahdi, Reference Mahdi2010; al-Rawiya, n.d.). In the decades that followed, however, Egyptian religious authorities took the lead in interpreting the Qur'an and the sunna in ways that led them to conclude that as the revealed sources did not provide conclusive answers to the question of whether women could serve as judges, the matter was open to debate.

Expressing this view was Imam Muhammad al-Ghazali (1917–1996), another prominent scholar of al-Azhar University. Both in and outside Egypt, al-Ghazali attracted a broad following with works that sought to interpret Islam and the Qur'an in a modern light.Footnote ¹⁸ For this al-Ghazali used ijtihad (cf. Bensaid, Grine and Mohd Nor, Reference Bensaid, Grine and Mohd Nor2013, p. 34). As for the issue of women judges, al-Ghazali stated that women can be appointed as judges or presidents. He argued that Islam generally does not make women inferior to men and that Islam addresses the complete equality between the sexes. He also asserted that the qawwamma (‘superiority’) verse mentioned above was specific to organising the relationship between men and women at home. Further, al-Ghazali gave many examples relating to women whose actions and policies had led to the improvement of their countries, such as Indira Gandhi in India, Golda Meir in Israel, and Queen Victoria in Great Britain. Finally, al-Ghazali stated: ‘Welcome to any woman who can do what men fail to do’ (al-Ghazali, Reference Al-Ghazali1989, p. 63).

In line with al-Ghazali, many contemporary scholars use ijtihad or other interpretative techniques, such as maslaha (explained below), to support the concept that women can be eligible to be judges. This explains why, in countries adhering to a school of law that prohibits the inclusion of women in the judiciary, governments were able to appoint women to the bench after all. For example, al-Azhar scholar Yusuf al-Qaradawi (b. 1926),Footnote ¹⁹ arguably the most prominent of the contemporary religious scholars in Sunni Islam (Zaman, Reference Zaman, Masud, Salvatore and van Bruinessen2009, p. 220), asserts that a woman can be a candidate for presidency as well as appointment as a judge as there is no explicit text that prohibits women from carrying out either role (al-Qaradawi, Reference Al-Qaradawi1997).

Other contemporary Egyptian scholars support al-Qaradawi and al-Ghazali in their opinions and views. For instance, the previous Grand Imam of al-Azhar, Muhammad Tantawi (r. 1996–2010), and Mufti of Egypt, Ahmad al-Tayyib (r. 2002–2003), had no objection to the appointment of women as judges and, in opposition to their predecessors in 1952, they argued that there is no explicit statement in the Qur'an or the sunna that prevents women from becoming judges. In addition, they pointed out that this issue is a matter of disagreement among Muslim scholars, and finally they argued that in issuing their opinion they had invoked maslaha (‘the public interest’). Appointing women as judges, so they concluded, serves the interest of the public, and therefore should be permitted. This was the substance of a fatwa they issued in October 2002 with regard to an official request submitted to them by the Minster of Justice (Abu Bakr, Reference Abu Bakr2010). The fatwas of the Mufti and the Sheikh of al-Azhar provided the religious justification needed to appoint Egypt's first female judge, Tahani al-Gabali, in January 2003, and subsequent fatwas in 2006 and 2007 led to the appointment of the first group of female judges to the general courts in 2007 and 2008. This, however, did not mean that their appointment passed without eliciting heated public debates, as we shall see in Part IV.

In December 2013, the current Mufti of Egypt, ‘Alam, issued a fatwa in which he permitted women to be judges.Footnote ²⁰ In the same vein as al-Tabari and Ibn Hazm in the early centuries of Islam, he justified his point of view by saying that all verses of the Qur'an stipulating duties and assignments are addressed to women and men alike. He also supported the opinion of those who claimed that the hadith on the daughter of the Persian King Chosroes was issued by the Prophet on one specific occasion. Moreover, he noted that the issue of appointing women to the bench is a matter of disagreement among Muslim scholars and for this reason a ruler is free to choose one perspective based on maslaha (‘the public interest’) (‘Ali, Reference ‘Ali2013). What is of interest here is that the current Mufti, as well as his predecessor and the former Sheikh of al-Azhar, acknowledged that there is a lack of agreement on the issue of women serving as judges, and that this is acceptable, as long as the final perspective selected serves the interest of society (maslaha). Referring to maslaha reflects a more general development in Egyptian society where, as Brown has it, ‘consensus’ (debate over shari‘a is healthy) goes hand in hand with ‘cacophony’ (multiple voices speaking authoritatively about Islamic shari‘a) (Brown, Reference Brown and Hefner2011).

In conclusion, while in the past most religious scholars opposed the appointment of women as judges, in the twentieth and twenty-first century the matter has been open to debate and a relatively large number of traditionally educated religious scholars approve of women occupying positions as judges, the most prominent of them being Egyptian scholars. Yet, despite the approval of these religious authorities with established national and international reputations, the number of female judges in Egypt remains small, especially as compared to other Muslim countries. Hence, when Egypt's religious scholars approve of women's ascension to the bench, and when other Muslim majority countries have included women as judges, why then does the Egyptian legal system accommodate so few female judges? In other words, is the poor representation of females on the bench related to other, non-religious factors? Are there certain features of the Egyptian legal system, such as the judicial selection process and legal education that hamper women's access to the legal profession? Or is their poor representation a matter of religious authority in Egypt being contested and fragile? We turn to these questions in Parts III and IV.

3.1 Women and legal education in Egypt

When Aisha Ratib applied for a position as a judge in the State Council (1949), the Egyptian legal system had just been through a period of pervasive changes, which had changed it from a system of (largely) uncodified Islamic law to one modelled along the civil law system of France. During the nineteenth century, the former shari‘a-based legal system was dismantled to the extent that religious rulings (both procedurally and substantively) only continued to play a role in the field of personal status. In 1955, the shari‘a courts were abolished and the shari‘a court judges, who for centuries had received their training at al-Azhar University, were replaced by judges who had obtained a law degree at one of the newly established secular universities, Cairo University in particular.

In the early twentieth century, the study of secular law proliferated as an increasing number of secondary-school graduates opted for a career in law. In 1904, for example, 78 per cent of secondary-school students continued their education studying law (Reid, Reference Reid1981, p. 21). Of these students, a certain number would play an important role in the nationalist movement of the early twentieth century. The growing interest in law studies was paralleled by a discourse emphasising education for women. Egyptian reformers such as al-Tahtawi (1801–1873) advocated education for women, as they would play an important role in educating their children to become good citizens of a new and free nation. Yet the presence of large numbers of law graduates within the nationalist movement, coupled with the fact that education for women was seen as essential to the establishment of a new and strong nation, did not result in a growing number of women who studied law and opted for a legal career (Sonneveld, forthcoming). In 1929, the first female student entered law school (Reid, Reference Reid1981, pp. 122–123), out of a total of seventeen female students that year (Barsoum, Reference Barsoum2004, p. 33). In 1933, the first female law graduate became the first female lawyer. In 1938/39 the number of female law students had grown to a meagre forty-five (Reid, Reference Reid1981, pp. 122–123).

Coming to power in 1952, the socialist Nasser regime was committed to expanding educational and employment opportunities for all Egyptians and to securing full employment for university graduates (Reid, Reference Reid1981, p. 257). Its transformation of Egyptian university education led to a sharp increase in the number of students, including law students (Rutherford, Reference Rutherford2008, p. 46), with the result that the study of law lost much of its initial vigour. Until the 1950s, law graduates had often held prominent (government) posts. From Nasser onward, however, Egypt's law schools were packed with students who had achieved poor marks in secondary-school examinations (Rutherford, Reference Rutherford2008, p. 47; Otto, Reference Otto, Galjart and Silva1995, p. 122), and their graduates ranked (and still rank) high among those who fail to find employment after graduation (Khaled, Reference Khaled2010). The deteriorating situation inside Egypt's law schools led former Minister of Higher Education (Hani Hilal) to announce in May 2010 a ban on the formation of new law schools and a reduction in the number of law students, which had grown explosively from 169,000 in 2002 to 244,000 in 2009 (Khaled, Reference Khaled2010). To give an example, in 2013/14, the total number of first-year students at one of the three main faculties of law, Alexandria University, was 6,076 and the total number of fourth-year students was 8,138. Of these students, 40 per cent and 48 per cent, respectively, were female.Footnote ²¹ Compared to a century ago, we find an almost equal enrolment ratio for men and women, at least at this university. This shows that the number of female law students has grown faster than that of their male counterparts. Access to legal education no longer forms a barrier to women wishing to enter one of the legal professions. This is exemplified by the fact that out of a total number of 350,000 lawyers who have a right to work as such, 110,000 (31 per cent) are female.Footnote ²² By comparison, out of a total number of 12,000 judges, forty-two (less than 1 per cent) are female. Since access to legal education cannot explain the small number of female judges in the Egyptian legal system, we examine below the judicial selection process as a possible explanatory factor for this small number.

3.2 The judicial selection process

Admission requirements to the office of judgeship in Egypt have hardly changed over the past decades. Even today, the judicial selection process is based on the civil law model inherited from France. After completing their university degrees, law students sit an entrance examination, which, if passed, allows them to enter the judicial service (Hamad, Reference Hamad and Malleson2006, p. 262). The official prerequisites for admission to the office are: (i) the candidate must be an Egyptian citizen who enjoys civil rights, has all the required guarantees of morality, and a good reputation; (ii) the candidate must have an LLB from an accredited university or an equivalent degree from al-Azhar; and (iii) the candidate must be at least twenty-one years old for the office of public prosecutor, and thirty years old for the court of first instance (Hamad, Reference Hamad and Malleson2006, p. 262).Footnote ²³ While these are the formal requirements, in actuality there are a number of other factors that determine whether a law graduate will be allowed into the judicial service.

The Supreme Judicial Council is responsible for appointing judges, and traditionally it selects most junior judges from the ranks of the criminal department of the public prosecutor's office.Footnote ²⁴ Informal conversations with judges and others working in the judiciary reveal that a candidate's lack of a criminal record, the political and social standing of his or her family, and gender are the most critical factors that determine a candidate's success in the application procedure (see also Hamad, Reference Hamad and Malleson2006, p. 263). A widespread complaint is that sons of counsellors or other individuals close to the government are hired by the Supreme Judicial Council, even when their examination grades are inferior to those of other law graduates (Bernard-Maugiron, Reference Bernard-Maugiron and Bernard-Maugiron2008, p. 8). As for gender, until 2007 the Supreme Judicial Council simply rejected the applications of female candidates who wanted to join the criminal department of the public prosecution service. Even today, gender continues to be a critical factor which determines one's career success in the judiciary. For instance, after the appointment of female judges in 2003 (to the Supreme Constitutional Court), 2007 and 2008 (to the general courts), the State Council (maglis al-dawla) refused to appoint women in 2010. And while the Supreme Constitutional Court ruled in March 2010 that women have the right to be appointed as judges in the State Council (al-Sayyid, Reference Sayyid2010), in January 2014 more than twenty-five female law graduates were explicitly told that ‘the application procedure [in the State Council] is confined to males only’ (‘Uthman, Reference ‘Uthman2014).

In 2003, the opposite seemed to be the case. While the position of judge in the Supreme Constitutional Court represents the peak of a judicial career, Egypt's first female judge, al-Gabali, came from the ranks of the advocacy and had not previously served as a judge. In the context of this paper, moreover, the question arises as to whether her appointment meant that legal and religious perceptions concerning gender and judging had changed, and whether Egyptian society and the judiciary were finally ready to welcome women as judges. Or was her appointment by presidential decree merely a symbolic gesture to appease the international community, which was putting pressure on the Egyptian government to comply with the international antidiscrimination provisions it had signed and its constitutional guarantees of equal opportunities to all Egyptians? We look at this question in the following section by examining the most prominent religious and cultural narratives used to facilitate or impede women's entry into the judiciary.

4.1 Female judges under Nasser and Sadat

As noted earlier, after independence from colonial rule a number of Muslim majority countries, such as Indonesia and Morocco, started to appoint women to the bench. This did not happen in Egypt. Following the recognition of Egyptian independence in 1922, a new Egyptian constitution was created in 1923. While this constitution did not contain clauses that prohibited women from occupying positions of authority, such as that of judgeship, in the decades following independence women were repeatedly denied positions within the judiciary. The Egyptian judicial system consists of three branches with the competence to adjudicate: the Supreme Constitutional Court, the ordinary courts, and the administrative courts (cf. Bernard-Maugiron and Dupret, Reference Bernard-Maugiron, Dupret, Bernard-Maugiron, Dupret and Rady2002, p. xxix).Footnote ²⁵ The first attempts made by women were to enter the State Council, an administrative court. The State Council has continually displayed fierce resistance to welcoming female magistrates among its ranks. In some cases women appealed the rejection of their applications in the Administrative Court. Aisha Ratib was the first to do so.

In 1952 the Administrative Court rejected Ratib's appeal.Footnote ²⁶ In the national newspaper Al-Ahram, a member of the Administrative Court's committee that had presided over Ratib's appeal explained the rejection in terms of ‘society not being ready yet’ (El Sayed, Reference El Sayed2006–2007, pp. 138–139).Footnote ²⁷ A closer look at the Administrative Court's ruling reveals that ‘society not being ready yet’ referred not only to Egyptian society but also to the judiciary itself. After all, in rejecting Ratib's application the Administrative Court had taken into consideration that the status of the position (ahwal al-wazifa), its dress code (malabisatiha), and the conditions in the workplace (zuruf al bi'a), as well as customs (‘urf) and traditions (taqalid), created barriers to women's entrance into the judiciary. On this basis, the Court claimed that restricting positions within the State Council and the judiciary to men only did not ‘diminish the value of women, comprise her dignity, reduce her moral and cultural standing, diminish her talents and superiority, or prejudice her’.Footnote ²⁸ The Administrative Court also argued that from a legal point of view this restriction ‘does not constitute a breach of the equality principle’ (‘Umar, Reference ‘Umar2013). The following year the Administrative Court had to issue a ruling in a similar appeal case (El Sayed, Reference El Sayed2006–2007, pp. 138–139). Ruling in favour of the State Council again, this time the Court explicitly concluded that ‘there is no rule that women are unfit to hold judicial positions but [that] the administration had determined that the time was not yet right for women to be appointed in the public prosecution’ (p. 139). Both rulings had the result that Egypt missed out on the honour of being the first Muslim country to appoint a woman to the bench.

Although there were no legal rules which explicitly forbade women from occupying positions of authority, the law did not encourage women to strive for a public career (in the judiciary) either. While discrimination on the basis of origin, language and religion was constitutionally prohibited, discrimination on the basis of gender was not (Article 3 of the 1923 Constitution). In fact, the different position of men and women in society was enshrined in the personal status laws of the 1920s,Footnote ²⁹ which applied to Muslims (and couples of mixed denomination/religion), and which (as mentioned above) are generally seen as the only fields of law where the principles of Islamic shari‘a still apply. Issued at a time when the liberation of the nation and the liberation of women (tahrir al-mar'a) went hand in hand, they stated that, as long as husbands are providing maintenance (nafaqa), wives had a legal obligation to obey their husbands, which was usually interpreted as not leaving the house without the husband's permission. Were she to disobey, her husband had the right to ask the police to assist him in returning her to the marital home. Under Nasser (r. 1956–1970), a new constitution was promulgated and not only was discrimination on the basis of gender prohibited (Article 31 of the 1956 Constitution), women were also explicitly summoned to take up public duties and obligations. The personal status rules governing spousal relations, however, remained unaltered. In effect, this meant that while women could occupy positions as ministers (the first female minister was appointed under Nasser in 1958), professors and judges, they still needed the permission of their husbands in order to leave the house (cf. Sonneveld, Reference Sonneveld2012).Footnote ³⁰

The personal status rules on the husband–wife relationship reflected a general tendency in Egyptian society to bar women from occupying positions in public life. This applied all the more so to the legal profession, which was considered an exclusively male preserve. The inauguration of Egypt's first female lawyer in 1933, for example, led to heated debates in national newspapers, focusing on women's entrance to the bar, but above all on their participation in public life. As succinctly described by Labib Rizk: ‘it was one thing to educate women to become good mothers, competent homemakers and loyal wives, and quite another to train them for jobs that would take them away from the home’ (Reference Labib Rizk2004). This notion is also evident in the popular Egyptian film Ustaza Fatma (1952), in which a male and female law graduate marry each other and start their own law firm. Along the way, however, the husband increasingly demands that his wife stay at home, arguing that this is where she belongs. Although the 1950s were a time of socialism and Arab nationalism, with increasing participation of women in the labour force, the public debates of the time bear a striking resemblance to the scholarly debates presented in Part II. In both cases, the debates centred around the proper place of women (and men) in society, and whether or not women could ascend to positions of authority in public life (the Chosroes hadith) or should be confined to the home as mothers and wives (the Qur'anic qawwama verse).

In the 1970s, a religious element was added to the polemic surrounding (married) women's right to work in general and their entrance to the judiciary in particular. This was indirectly related to the revival of Muslim religiosity (al-sahwa al-islamiya), which spread in the Muslim world from the late 1960s and early 1970s onwards. The religious resurgence eventually led to the formation of a new public sphere in which Islamic rhetoric became increasingly dominant. Sadat (r. 1970–1981) responded to the shift into the realm of religiosity by including in the Egyptian Constitution a new provision stating that the sources of Islamic shari‘a are a (1971) and the (1980) main source of legislation. The inclusion of the application of Islamic shari‘a in the constitution had a profound effect on the appointment of women as judges, and the way laypersons, legal experts and religious scholars discussed the issue.

Almost three decades after Aisha Ratib's failed application, female law graduate Hanim Muhammad Hassan applied for a position as a representative (mandub) in the State Council. Although she had explicitly requested appointment to any department that did not involve sitting as a judge on the bench, the State Council turned down her application (El Sayed, Reference El Sayed2006–2007, p. 138), on the basis of fiqh opinions (ra 'y al-fiqh) that disapproved of women occupying positions of judgeship (‘Umar Reference ‘Umar2013). Hassan appealed the rejection in the Administrative Court, which in June 1979 ruled once again in favour of the State Council. This time, however, the Court motivated its judgment differently. Taking into account Article 2 (the principles of the Islamic shari ‘a are a main source of legislation) and Article 11 of the Constitution (the state guarantees equality between men and women in the political, social, cultural and economic fields as long as this does not infringe upon the rulings of the Islamic shari ‘a), the Court ruled that there was no ground to reverse (la wajih li-l-ta‘qib) the State Council's decision.

This incident reflected a wider development in Egyptian society in which a class of religiously trained scholars was forced to share interpretive authority over Islamic shari ‘a with individual believers without formal religious training (judges, ordinary believers, public officials, etc.) (Sonneveld, Reference Sonneveld2012; Brown, Reference Brown and Hefner2011). Below, we explore how this phenomenon, called the ‘objectification’ of Islam (Eickelman and Piscatori, Reference Eickelman, Piscatori, Eickelman and Piscatori2004), impacted on women's entrance into the judiciary, at a time when international development organisations compelled the Egyptian government to carefully consider the position of women in Egyptian society.

4.2 Female judges under Mubarak

It was only in Mubarak's second decade as president (r. 1981–2011) that the right of women to work as judges was seriously considered. A national conference on women held in Cairo in June 1994, the International Conference on Population and Development (ICPD) of the United Nations, also held in Cairo in September 1994, and the Fourth World Conference on Women, held in Beijing in September 1995, which recommended a female representation of 33 per cent in the judiciary, played a particularly important role in the Egyptian government's interest in working towards a fairer representation of women in the judiciary. An important request of the women's conference of 1994 was the introduction of female judges. Responding to this request, male judges interviewed in the national Egyptian newspaper al-Wafd remained ambivalent. One judge believed that since female law students got far better grades than their male counterparts, the judiciary had much to lose by excluding women from judgeships. The other five judges interviewed either opposed the placing of women on the bench completely, saying that it was a Western invention ill-suited to Egyptian culture and in violation of the shari ‘a. Or they argued that, because of their sensitive nature, women should only work as judges in courts dealing with juvenile and personal status matters. Otherwise, they felt that women's emotionality and subjectivity ran counter to the need for judicial objectivity (Mustafa, Reference Mustafa1994).

Informal conversations with judges, lawyers and laypersons,Footnote ³¹ as well as public debates on television and in newspapers, make clear that it is generally believed that during a 2002 meeting of the ruling National Democratic Party, former first lady Suzan Mubarak publicly pressured her husband and, subsequently, the Minister of Justice, into taking the issue of women's equal representation in the judiciary seriously. In order to obtain the required religious legitimacy, the Minister requested the Grand Mufti to express his opinion on the matter. In October 2002, the former Mufti of Egypt – Tayyib – and the previous Grand Imam of al-Azhar – Tantawi – issued fatwas stating that they had no objection to the appointment of women as judges (see also Part II). While important, this religious justification did not result in the appointment of more female judges in the years that followed.

Both international and domestic pressure continued, and the Minister of Justice felt pressured to request the new Mufti – ‘Ali Guma‘a (r. 2003–2013) – to issue a fatwa on the question of whether it was permitted to appoint women to positions of authority. In June 2006 the Mufti responded by saying that women have the right to work in positions of authority, such as head of state, and judge. This, the Mufti said, was in line with the teachings of Imam al-Tabari (839–923 Ce) (cf. Mujahid, Reference Mujahid2007) who, as noted above, was the only great Qur'an interpreter to believe that there was no fault in appointing women as judges.Footnote ³²

In following al-Tabari, the Mufti had clearly followed a minority opinion, a move he justified by saying that his fatwa was based on more than thirty years of careful study of Islamic jurisprudence and Islamic law (Mujahid, Reference Mujahid2007). Following the Mufti's fatwa, in March 2007 the Supreme Judicial Council, which handles judicial appointments, announced the decision to appoint thirty-one women to different general courts in Cairo, Giza and Alexandria. This move provoked much controversy and was widely debated in the press and on television. In what follows, we focus on three issues that dominated the debate: (i) the legitimacy of religious power; (ii) foreign pressures; and (iii) the proper place of women in society.

4.3 The legitimacy of religious power

Shortly after Egypt's Mufti had stated that Islamic shari ‘a gives women the right to assume judgeships, an article consisting of a series of interviews with Egyptian legal professionals and a religious scholar appeared on al-Jazeera's website (18 March 2007). In it, the head of the State Council Judges Club – Yahya Dakruri – claimed that placing women on the bench ran counter to Islamic shari ‘a and the Egyptian Constitution. ‘How can we deviate from the consensus of the classical religious scholars and follow the opinion of the Hanafi scholars who allow women to work as judges in all but the hudud and qisas cases?’, he asked (al-Jazeera Net, 2007). One of the vice-presidents of the Egyptian Court of Cassation, Ahmad Makki, seconded this, saying that most classical scholars opposed the appointment of women as judges. However, since times and circumstances had changed, he believed there was a need to reconsider their positions on the issue (al-Jazeera Net, 2007). Another vice-president of the Court of Cassation, Hisham Bastawisi, refuted this, saying that there was nothing in Islamic shari ‘a, the Constitution or the law that prohibited women from becoming judges in the first place (al-Jazeera Net, 2007). Adding to this, a professor of religion and philosophy and member of al-Azhar's Academy for Islamic Studies, Bayumi, even claimed that Islamic shari ‘a allows women to work as judges. After all, he claimed, Islam does not present evidence showing that men and women think and act differently (al-Jazeera Net, 2007).

This series of interviews is interesting for two reasons. First, it reflects a general tendency for legal professionals to not take the opinion of Egypt's state-appointed religious scholars at face value. The Mufti's lengthy experience in Islamic jurisprudence and his official status as the highest fatwa issuing power in Egypt notwithstanding, legal professionals in particular were vociferous in presenting their readings of the religious sources as the rightful ones. Second, while the majority of the religious scholars of al-Azhar approved of women's entrance into the judiciary, at least publicly,Footnote ³³ this was different for the members of the judiciary, who were clearly divided on the issue, with many adopting a conservative approach.

Despite their training in secular law and their lack of expertise in Islamic jurisprudence, legal professionals employed a number of religious interpretive methods to justify their point of view. Most commonly, they resorted to the authoritative teachings of the four schools of Islamic jurisprudence (taqlid), and in so doing they made it clear either that women should not work as judges at all or, in line with the teachings of the Hanafi school of law, should be excluded from working as judges in hudud and qisas cases. The religious scholars of al-Azhar traversed between what Lombardi has identified as two strains of Islamic legal modernism in Egypt: neo-taqlid and neo-ijtihad (Reference Lombardi2006).Footnote ³⁴ Similarly to the judges, they employed taqlid, but instead of referring to the three schools of law that do not allow women to work as judges (e.g. the Hanbali, Maliki and Shafi‘i schools), they tended to follow the teachings of the Hanafi school of law. In addition, the religious scholars of al-Azhar resorted to interpretive techniques such as ijtihad and maslaha to justify opening the judiciary to women. In so doing, they either adopted a minority view (of, for example, al-Tabari) or consulted the Qur'an and the sunna independently. The same applied to legal professionals who welcomed the placing of women on the bench. In al-Jazeera's talkshow ‘Ma Wara’ al-Akhbar’ (‘What is behind the News’), vice-president of the Court of Cassation Bastawisi firmly stated that maslaha (‘the public interest’) required the state to appoint the most qualified candidates, regardless of their being men or women (Ma Wara’ al-Akhbar, Reference Ma Wara’2007). Female judges did not have a prominent voice in the debate. The few who were interviewed tended to side with the religious establishment, saying that the Mufti had approved of their appointment and that there were no explicit prohibitions against women working as judges in the fundamental sources of Islamic shari ‘a (Rashwan, Reference Rashwan2007).

As one reviews the public debate, one could easily reach the conclusion that there are no hierarchical authorities in Egyptian Islam and that everybody is free to speak for Islam, even legal professionals with no training in religious law. This, however, is not a view that many legal professionals in the public debate on women as judges would share, as many of them believed that they were not properly consulted and that the decision to appoint women as judges was a response to pressure from the West.

4.4 Foreign pressures

Besides appeals to religious authority, the particular timing of the Supreme Judicial Council's decision was an issue that also permeated much of the public discussion. It was a central question in al-Jazeera's ‘Ma Wara’ al-Akhbar’. According to well-known Islamist lawyer Muntasir al-Zayyat, many Egyptians felt that the government had simply pushed through the decision, and in this way had not given the Egyptian people the opportunity to discuss the issue properly.Footnote ³⁵ He attributed this to pressure from the European Commission as well as an outgrowth of the two large UN Population Conferences in 1994 and 1995, which were held in Cairo and Beijing, respectively, and which al-Zayyat believed pressured the Egyptian government into living up to its recommendations, of which full equality between men and women was one of the most important. This, he claimed, had inspired the Minister of Justice to appoint women as judges (Ma Wara’ al-Akhbar, Reference Ma Wara’2007). Another high-profile legal professional, Vice-president of the Court of Cassation Ahmad Makki, also made it clear on several occasions that he believed the appointment of women judges to the general courts to be a response to pressure from the West (al-Jazeera Net, 2007; El-Nahhas, Reference Nahhas2007). He also believed that the move was meant to divide the judiciary at a time when it was entangled in a fight with the government for more judicial independence, an issue on which he was not alone in taking a stand.Footnote ³⁶

What added to a general feeling that foreign interests were dictating domestic agendas is that discrimination seemed to work in favour of women. Similarly to the selection of Tahani al-Gabali, the nomination of these thirty-one female judges was claimed to be the result of government interference, rather than based on their steady rise through the ranks of the judiciary (Hamad, Reference Hamad2008, p. 255; El Sayed, Reference El Sayed2006–2007, p. 136). Vice-president of the Court of Cassation Ahmad Makki warned in the Al-Ahram Weekly newspaper that male and female candidates had to be treated with absolute equality, meaning that: (i) like men, women must first serve in the General Prosecution service before appointment to judicial posts; and (ii) women should not be exempted from the judicial rotating system and be appointed only to courts in Cairo and Giza (El-Nahhas, Reference Nahhas2007). Others were more outspoken, claiming that all female judges were the daughters of counsellors and high-ranking judges (cf. Rashwan, Reference Rashwan2007), and on 15 March 2007 Egyptian newspaper Al-Masry Al-Yawm even released the names of the women judges and their fathers (al-Badri, Reference Badri2007).

Al-Azhar scholar Bayumi refuted all accusations of foreign agendas, saying that the issue had been on the agenda within Islamic circles since Prophetic times (al-Jazeera Net, 2007). Likewise, member of the State Council Judges’ Club, counsellor ‘Umar Guma‘a, claimed in ‘Ma Wara’ al-Akhbar’ that Egyptian women had attempted to become judges for half a century. The recent nomination of women as judges, he claimed, had nothing to do with international pressure and politics but instead was the outcome of natural developments within Egyptian society (al-Jazeera Net, 2007).

4.5 The proper place of women in society

Counselor Guma‘a's statement that women's appointments as judges was the result of developments inside Egypt should probably be seen in the context of profound changes in Egypt's laws on personal status. Starting in 2000, Egyptian women were given the right to divorce unilaterally and without the need to show cause in court through a procedure called khul’, they could travel without the consent of the husband, include special stipulations in the marriage contract such as the ‘no polygamy’ proviso, and pass on their nationality to their children (from 2004). In 2005, the maternal custody age was increased, and in 2008 educational guardianship even moved from the father to the custody holder, mostly the mother, in cases of divorce. The clause on women's obedience to their husbands, however, remained unaltered, with the result that Egyptian women (and men) were pulled in different directions. On the one hand, women could travel (and thus work) without the consent of the husband, but as long as the husband continued to provide, they still needed the permission of the husband to leave the house. This discrepancy permeated much of the public debate on the issue of women serving as judges.

In March 2007, al-Jazeera's television broadcast ‘Ma Wara’ al-Akhbar’ invited viewers to call in and express their opinion on the recent appointment of women as judges (Ma Wara’ al-Akhbar, Reference Ma Wara’2007). What clearly transpires from this television broadcast is that most viewers contested the inclusion of women as judges on psychological grounds. These viewers resorted to ‘feminine’ personality traits such as sensitivity and emotionality to explain why women should not be allowed to exercise authority over men. Generally, women were treated as emotional beings, and the idea of having women in power was dividing public opinion, with many expressing the view that the proper place of women is in the home, while men's place is in the public sphere.Footnote ³⁷

Legal professionals made similar remarks. For instance, lawyer al-Zayyat's statement that appointing women as judges would not help solve the high unemployment rate among men (al-Jazeera Net, 2007) is an implicit reference to the male's defining status as breadwinners. In the early 1930s, when Egypt's first female lawyer was appointed, opponents also argued that women would take the place of men in an already scarce labour market (Labib Rizk, Reference Labib Rizk2004).

Hence when, in 2007, counsellor Guma‘a claimed that the recent appointment of women as judges had no political basis but was solely the result of natural developments within Egyptian society, his opinion was a minority one. In fact, other legal professionals expressed views that bore a striking resemblance to those expressed by the magistrates who handled Aisha Ratib's appeal case in the early 1950s, and who had concluded that conditions in the workplace and the profession's dress code created an unsuitable work environment for women. More than half a century later, many judges still worried that the appearance of women as judges in court would diminish the profession's prestige. For example, counsellor Dakruri wondered what people in the courtroom would think of women judges if they were to appear in court while pregnant. This, he believed, would not only affect the prestige of the judiciary among the people, but the well-being of her child would also have an impact on the way she performs judicial review (Amin, Reference Amin2007). Counsellor Ahmad Makki claimed that there are certain barriers that prevent women from working as judges. In the same vein as the Administrative Court had ruled on the occasion of Ratib's appeal, Makki pointed out that judges are supposed to wear uniforms, and so he asked: What should we do when a lady judge appears in court wearing ‘floral dresses’ or a niqab? In addition, the office of judgeship requires judges to travel and work in different regions, including underdeveloped areas. ‘How can a woman judge with a six-month-old baby do this?’, he asked rhetorically (www.masrawy.com 15 March 2010).

Male judges interviewed by the authors also emphasised the difficulties that women would face in reconciling domestic commitments with professional ones.Footnote ³⁸ One of them said that judges do the bulk of their work at home, where they prepare and review cases. Male judges, he claimed, simply close the door of their home offices when their wife and children are in the house, but he could not see how a female judge could work at home with children present. Being pulled in different directions by court files that needed to be prepared and children who needed attention, he considered this an impossible balancing act. Referring to the judicial rotating system, which requires judges to relocate every five years, two judges interviewed vehemently opposed the idea of women working as judges. Judges and prosecutors who are placed in remote areas stay in a so-called governmental rest house (istiraha), which is located next to the courthouse and the prosecution office. These judges thought it incompatible with societal notions for female judges to share the house with male judges and prosecutors. The president of the State Council Judges’ Club, Dakruri, was more outspoken, claiming in Al-Masry Al-Yawm that he considered the characteristics of the judicial profession, such as the deliberation of judges behind closed doors, a khulwa (the seclusion of a man and a woman who are not related to each other and which can lead to unlawful sexual relationships (zina’)). ‘Is this allowed?’, he asked rhetorically (Amin, Reference Amin2007). In order to prevent situations of khulwa from occurring, two male judges interviewed at the Cairo Judges’ Club worried that, similar to the 2007 appointments, the ministry would keep the women judges in the big cities and send the male judges to the provinces. This, they claimed, would be a great injustice to men. A third judge interviewed took a different point of view. He did not mind the mingling of male and female judges. After all, he said, his children were all girls and his wish was to guarantee them a good job in the future. This judge clearly represented a minority opinion: a survey conducted during a general assembly meeting in the Judges’ Club in November 2005 indicated that 85 per cent of the judges did not accept the appointment of women to the civil or other courts, while 97 per cent did not accept the notion of women working as criminal law judges.

Opposition from male legal professionals came at a time when the judiciary was entangled in a fight with the government for more judicial independence. In early 2007, members of the judiciary were vocally opposing the constitutional amendments which, if approved by public referendum, would reduce the judicial supervision of elections. Presenting themselves as protectors of freedom, equity and full citizenship, it is ironic that high-ranking judges insisted on following the male-breadwinner / female-homemaker model; even worse, they were afraid that giving women their constitutional and legal rights would lead to cleavages within the judiciary.