Note: There is no doubt that in Islam, rulings pertaining to women and men differ in certain instances. But what underlies these differences? Some attribute them to inherent distinctions in the creation of women and men, necessitating the enactment of divergent rulings. Conversely, those who insist on absolute equality of rights between women and men in all domains regard these differential rulings as stemming from a male perspective among jurists toward women, viewing it as a license for violence against women. According to them, if there were numerous female mujtahids undertaking the inference of rulings, markedly different fiqh conclusions would emerge. We posed this question to Ayatollah Ja’far Najafi Bostan, one of the distinguished professors of advanced fiqh and usul in the Qom seminary. By citing certain rulings where women and men differ, he attributes the cause of these distinctions to fiqh evidences, rather than a male gaze among jurists or an approach endorsing violence against women. The oral remarks of this professor of advanced fiqh and usul in the Qom seminary are presented for your consideration:

Firstly, throughout history, we have had few highly perceptive and erudite women, but the fact that women did not enter this field and did not acquire expertise therein does not imply that violence was perpetrated against them. Indeed, more favorable conditions were available for men to achieve mastery in fiqh, and they attained it, whereas such conditions were less readily available for women.

However, it must be recognized that ijtihad for women does not differ from that for men; if an individual reaches the level of ijtihad and issues fatwas, it makes no difference whether the person is female or male. Women can pursue studies and attain the degree of fiqh mastery, and no jurist has ever opposed this. In this regard, there is no distinction between becoming an absolute mujtahid or a partial mujtahid, as jurists have concurred with women achieving both levels, with no opposition expressed.

A question may arise as to whether a female mujtahid can be the most learned (a’lam) in her era, surpassing all male and female mujtahids in knowledge. The response is affirmative: it possesses both essential and occurrent possibility. Although, due to various conditions and factors, this has not yet occurred, there is no doubt regarding the fundamental possibility of the matter, no impediment exists, and no one has opposed it.

Another potential question is whether a woman who has reached the stage of fiqh mastery can act upon her own opinions—that is, having attained ijtihad (whether as the most learned or otherwise) and wishing to cease taqlid in favor of following her own views. The answer is that it is not only permissible but obligatory, and no mujtahid has ever contested this.

The subsequent issue concerns whether others may perform taqlid of her. Here, the following clarification is necessary: ijtihad confers three attributes upon the individual: first, the permissibility of issuing fatwas; second, the permissibility of adjudicating disputes among people; and third, governance and societal administration to the extent of hisbah.

As for the permissibility of others performing taqlid of a female mujtahid, there appears to be no issue; however, in matters of hudud, qisas, and diyat—since these entail guardianship of the woman over others—according to narrations, it is impermissible.

The second question pertains to whether her administration of governance is permissible. The response is that the faqih, according to all theories of governance, can administer society. If we accept the theory of the author of Jawahir concerning the absolute guardianship of the faqih, she can administer society in accordance with shar’i rulings. If we adhere to the theory of the guardianship of the faqih as propounded by the Imam (Khomeini), which holds that the faqih may act based on maslahah and even suspend primary rulings, the faqih still possesses such authority. Likewise, under Shahid Sadr’s theory of the “zone of vacuum,” she could govern and even alter rulings. However, governance entails guardianship of women over others, including men, and since numerous narrations negate this guardianship, we cannot uphold the permissibility of women’s governance.

Another inquiry concerns the permissibility of adjudication by a female mujtahid. Here, we encounter a difficulty: narrations employ the term “rijal” (men), and on this basis, we cannot accept the permissibility of women’s adjudication. Evidences for shared rulings between women and men, being conceptual (lubbi), require restriction to their certain scope; thus, resorting to them cannot establish the permissibility of women’s adjudication akin to men’s. Consequently, women’s adjudication remains problematic. We do not comprehend the underlying philosophy of many rulings, and here too, there may be a rationale reflected in diverse narrations stipulating that adjudication be performed by men and cautioning against entrusting men’s guardianship to women. Nevertheless, this cannot be labeled as violence against women or deemed indicative of a male-oriented fiqh.

In conclusion, a woman can become a mujtahid, and others may perform taqlid of her; however, she lacks guardianship over adjudication and societal administration. The grounds for this impermissibility are the plentiful narrative evidences on the subject, rather than any intentional revocation of this guardianship by male jurists. It seems that such allegations arise from remnants of feminist thought in certain minds; otherwise, no such disposition is evident among jurists.