Friday, 20 July 2007

Women Judges - Whats the big deal?

What the heck is the big fuss on women being judges??? I am sorry, but I just don't get it. If any of the enlightened ones out there have a valid reason as to why not , please feel free to enlighten me.

If you have a few minutes, here is an article, that gives a fresh look and really tells us what the Mullahs are don't want to tell us. I don't know who the author is, but I got this article from google. But it gives the context and how the mullahs have twisted everything up. a nice read!

Juristic Views

The majority view (jumhur) among the founding jurists (mujtahid mutlaq) of Imam Shafii, Malik and Ibn Hanbal regarded women as being disqualified as judges based on an interpretation of Surah an-Nisa’ 4:34, that men are qawwamuna (protectors) over women. The minority view of Imam Abu Hanifah, however, opined that the authority of a judge is not valid unless he possesses the qualifications necessary for a witness. Thus this opinion allows women to be judges in all cases except hudud and qisas cases. This flows from Imam Abu Hanifah’s interpretation of Surah al-Baqarah 2:282, on women’s eligibility to be witnesses in commercial transactions. There were also the individual views of other jurists such as al-Tabari and Ibn Hazm which stated that a woman can be a judge in all cases without exception as long as she fulfils the requirements for the position. This would also appear to flow from a reading of Surah al-Taubah 9:71, that believing men and women are each other’s awliyya (protecting friends and guardians).

As Muslims, we believe in the revealed nature of the textual sources of the Qur’an, and the authentic Sunnah of the Prophet (saw). The latter source is divinely inspired. There is no clear nass in the textual sources allowing or disallowing women to be leaders or to be appointed as judges. The current views on these two issues are juristic interpretations of several textual sources.

Qur’anic Verses

Surah an-Nisa’ 4:34 states to the effect that:

Men are qawwamuna over women, (on the basis) that Allah has (faddala) preferred some of them over others and (on the basis) of what they spend of their property (for the support of women) ….

This is the parent source from which all juristic opinion of the status and position of women is derived.

This verse has been misinterpreted to mean:

i) Men have authority over women
ii) All men are superior to women.

The Qur’an establishes that men are qawwamuna (have responsibility) over women. It does not mean that women are incapable of handling their own affairs as though they lack the capacity. It does not mean that women are incapable of assuming leadership roles, whether among women, men and women, or even of nations, as has been assumed.
Rather, it intends to establish the responsibility of men for the protection and maintenance of women in a restricted setting or social context. Biologically, only women can bear the future generations of Muslims. The Qur’an creates a harmonious balance in society by establishing a functional responsibility for males to facilitate this biological function of females. The material responsibility of men in the Qur'an is that they are invested with the responsibility to facilitate this biological function of females. This verse does not give men inherent superiority, but rather establishes mutual responsibility in society.
The word qawwama also means ‘to provide with the means of subsistence’. The notion of qawwam is related to the reason that men spend their property for the support of women. It follows that a man who does not maintain his wife should not be qawwam.2 Responsibility is not, and cannot be interpreted as, superiority. The material responsibility of men mentioned in the Qur’an, that they are invested with the responsibility of spending for women’s support, has corresponding advantages. It is on the grounds of this responsibility that men are given a double share of inheritance under the faraid. However, it should be remembered that the deceased estate’s distribution under the faraid should only take place after the payment of any debts, and of any bequests or legacies under a will (wasiyya).
The Qur’an does not say that “all men are superior to or better than all women”. Nor even that all men are preferred by Allah (swt) over all women. Advantages are explicitly specified in the Qur’an. Men have a certain advantage materially, resulting in certain responsibilities (or vice versa). When the Qur’an says that “some (unspecified gender) are preferred by Allah (swt) over others”, it uses general language which corresponds exactly with the observable reality in creation: some creatures have some advantages over others—even some humans over others. All men do not always have an advantage over all women, nor all women over all men.
The view that a man is superior to a woman because he is physically “stronger” lacks the support of the Qur’an and authentic Sunnah. The divine sources mention “care” and “responsibility” within the family, but not superiority. Muslim men and women are equal in their individual and social responsibilities, being in charge (protectors) of one another and of the whole society (awliyya), as stated in Surah al-Taubah 9:71.[2]
Besides Surah an-Nisa’ 4:34, another verse that is often cited to imply women’s lack of capacity is Surah al-Baqarah 2:282, which states to the effect that:

Whenever you take credit for a stated term, set it down in writing. And let a scribe write it down equitably between you .… And call upon two of your men to act as witnesses; and if the two men are not available to you as witnesses, then a man and two women from among you, so that if one of them should make a mistake, the other could remind her .…

This verse has been misinterpreted to mean:

i) evidence of two women equals the evidence of one male
ii) the moral and intellectual incapacity of women.

The context of this verse relates to a written loan agreement. The stipulation that two women may be substituted for one male witness does not imply any reflection on woman’s moral or intellectual capabilities. It is obviously due to the fact that (at the time of revelation) women were less familiar with business procedures than men and, therefore, more liable to commit mistakes in this respect.[3]
The unfamiliarity of women at the time of revelation in personally conducting business transactions is demonstrated by the fact that even Khadijah (ra), the wife of the Prophet (saw), left the charge of her business affairs to him. This was the socio-historical context at that time when the verse was revealed. To ensure justice therefore, two women were required for the following purpose: If the female witness errs or forgets, the other is needed, not to give evidence, but to remind her. This is quite acceptable, even today, when women still find the court process intimidating and require another to reassure them and provide moral support. This again corresponds to the observable reality.
It should, in fact, be considered quite remarkable that despite the social constraints at the time of the revelation—inexperience and coercion of women—a woman was nevertheless considered a potential witness. In this modern era, such revolutionary consideration of women’s potential should lead to greater promotion of her contributions to a just and moral social system, and end exploitation of her and others in society.[4]


The hadith that is often cited to deprive women of leadership positions is a hadith related by Abu Bakra to the effect that:

When the news reached the Prophet (saw) that the Persians had made the daughter of Chosroe their ruler he observed: That a nation can never prosper which has assigned its reign to a woman.

For hundreds of years, this hadith has been taken to mean by a majority juristic opinion that a woman cannot be a nation’s leader (khalifah), and as such she should not be allowed to be a judge (which is part of the function of a khalifah). This juristic opinion resulted in the regression of the status and position of women in society, to the extent that Muslim women were unable to equally enjoy the rights that were enjoyed by men. These rights included political rights and political participation, holding higher public offices, becoming witnesses, judges and leaders. Nevertheless, the other opinion which stems from this hadith allows women to be judges, but not leaders or heads of government.
Whatever the traditional interpretation, it must be noted that this hadith is classified as an ahad (isolated) hadith. This means that the narrators of this hadith do not exceed two persons in each generation. A mutawatir hadith, on the other hand, is one that is reported by an indefinite number of people in such a way that precludes the possibility of its being false.
The above hadith was narrated for the first time during the Battle of the Camel in which Aishah (ra) led her forces into Basrah. Her forces (which reportedly included Abu Bakra) were defeated. Many believers died in that battle.

Many modern-day commentators view this hadith as a fabricated hadith. If it had been a genuine hadith of the Prophet (saw), Abu Bakra would have obeyed the injunction by not going out to battle under Aishah’s banner. The other explanation may be that the report was in the nature of a khabar (information).[5]
In the context of the Battle of the Camel, Aishah was in command of the army which included many illustrious companions of the Prophet. None of them objected to her being in command, nor did they desert her for that reason. Even Abu Bakra, the narrator of the above hadith, did not desert her. Had he been convinced that the Prophet had prohibited women from being imam (leader or head) he should have deserted Aishah as soon as he recalled this tradition. How then could it be said that a woman cannot become leader of a government when her leadership was accepted by such eminent companions of the Prophet?[6]
Those who have utilised the above-mentioned hadith for the proposition that a woman should not hold leadership positions have also cited a statement attributed to Aishah as saying:

It would be more to my liking had I remained in my house and not gone on the expedition to Basrah.

If she made this statement, it could be because she regretted the loss of so many lives, including some of her nearest and dearest, and to the loss of her own prestige, and not necessarily that she was not supposed to lead.[7]
It is a well-known principle in Islamic jurisprudence that an ahad hadith is not a basis for formulating binding rules and it is not necessary to act upon it. Hence, it is strange and illogical that this isolated tradition should have been made the basis for the ruling that a woman cannot become a head of state or be appointed as a judge, a ruling that has such serious implications on society in general as well as on women in particular.
The second hadith relied upon as an impediment to the appointment of women to responsible positions is the tradition which declares women as “naqis al-‘aql wa al-din” (defective or imperfect in reasoning and religion). As stated by those who are well versed in discriminating between authentic and forged traditions, the forgery can in most cases be detected from the subject matter of the tradition. Thus, a hadith cannot be accepted as authentic if:

i) it describes what is impossible of occurrence and which is not acceptable to human reason,
ii) it is contrary to the Qur’an,
iii) it is contrary to historical facts.

The former Chief Justice of the Federal Shariat Court of Pakistan, Justice Aftab Hussein, referred to the view of Dr Abdul Hamid Mutawalli, who said that it is very apparent that this tradition is one of the thousands of traditions which were forged and ascribed to the Prophet (saw) falsely, as it contains all the three defects.[8]

Textual Sources on Equality of Men and Women

Qur’anic Verses
Surah an-Nisa’ 4:34 and Surah al-Baqarah 2:282 are frequently cited to allege men’s superiority over women. However, other verses which very clearly state the equality of men and women are seldom highlighted. The verses that demonstrate and emphasise the equality of Muslim men and Muslim women include Surah Ahzab 33:35 and Surah al-Taubah 9:71.
Surah Ahzab 33:35 explicitly addresses men and women without discrimination when it states to the effect that:

Verily, for men and women who have surrendered themselves unto God, and believing men and believing women, and truly devout men and truly devout women, and men and women who are true to their word, and men and women who are patient in adversity, and men and women who humble themselves (before God), and men and women who give in charity, and self-denying men and self-denying women, and men and women who are mindful of their chastity, and men and women who remember God unceasingly: for them has God readied forgiveness of sins and a mighty reward.

Surah al-Taubah 9:71 states to the effect that:

The Believers, men and women, are protectors of one another, they enjoin what is just and forbid what is evil … On them will God pour His mercy.

Surah al-Taubah 9:71 is the final verse to be revealed on the male/female relationship. In it, men and women are said to be each other’s awliyya—protectors or protecting friends and guardians. And it also talks about the obligations of both men and women in Islam, including enjoining what is just and forbidding what is evil. It might also be significant that while Surah an-Nisa’ 4:32 mentions “men (rijal)” as being qawwamuna over “women (nisa’)”, Surah al-Taubah 9:71 mentions “believing men (mu’minun)” and “believing women (mu’minat)” as being awliyya over each other. Revealed in 8 Hijrah towards the end of the Prophet’s life, Surah al-Taubah 9:71 sums up the spirit of equality and mutuality that the Qur’an preaches in the relationship between men and women.
To enjoin the right and forbid the wrong is primarily the duty of the State, which is in a position to discharge it effectively. The verse makes women as much protecting friends of men as men are of women. It further orders women to discharge the duty of enjoining good and forbidding wrong which can be discharged effectively by the ‘ulil amr (person in authority) who symbolises the State. The verse paves the way for women to become the repository of State authority, including the authority of the Head of the State.10

There is a hadith narrated by Sayyidinna Ali (ra) and reported by Ibn ‘Asakir which states to the effect that:

One who honours women is himself honorable, and one who insults women is himself lowly.

Conflict between Textual Sources and Differing Interpretations
The traditions cited against the appointment of women as head of State or in the judiciary are in conflict with the Qur’anic teachings. As stated earlier, it is observed that a hadith is not acceptable if it describes what is impossible to believe, the hadith is in conflict with the Qur’an, and it contradicts the facts of history.

The tradition that “women are imperfect in reasoning, in religion” is neither acceptable to reason nor is it in conformity with the Qur’an as well as with present-day society. This tradition has all the three elements of forgery.11 If this tradition is assumed to be true, it would conflict with various injunctions which are there in the Qur’an itself and also with some other traditions. It would also conflict with some of the historical facts in the Prophet’s time and that of the rightly guided Caliphs. If women are defective in reason and religion it would be necessary to restrict their power to dispose of their properties and at least make it subject to the approval and permission of their husbands or guardians. But Islam has acknowledged the absolute competence of women in this respect and has allowed her full rights of disposition over her properties. During the time of the rightful guided Caliphs, the Caliphs sought counsel from women and gave importance to their opinions. How can the human intelligence accept this tradition as authentic when the first person to believe in the Prophet (saw) was a woman, Khadijah (ra) (the Prophet’s first and only wife until her death 25 years after their marriage). How can women be defective in religion when the first martyr (syahidah) to die in the cause of Islam was also a woman, Ummu Amir, the wife of Yasir.
The isolated tradition that a nation cannot prosper with a woman ruler contradicts the teachings of the Qur’an, as illustrated in the verses about Balqis, Queen of Sheba, as well as in the verses which demonstrate equality, particularly Surah al-Taubah 9:71. The determination of what is right and what is wrong is one of the basic duties of the leaders of a state, and here women as well as men, who are protectors of each other, have been enjoined to perform this task. How then can women be excluded from being leaders of the State, especially in a democratic government? It would also appear to conflict with another tradition of the Prophet (saw) narrated by Sayyidinna Ali (ra) which says that one who honours women is himself honoured and one who insults women is himself lowly.

Hadith Criticism

Since the hadith reported by Abu Bakra is included in Sahih Bukhari, it is a priori considered unassailable without proof to the contrary, since we are here in scientific terrain.12 In the 17 volumes of the Fath al-bari, al-‘Asqalani does a line-by-line commentary on al-Bukhari. For each hadith of the Sahih, al-‘Asqalani gives us the historical clarification, i.e. the political events that served as a background, a description of the battles, the identity of the conflicting parties, the identity of the transmitters and their opinions, and finally the debates concerning their reliability—everything needed to satisfy the curiosity of the researcher.[9] Imam Malik never ceased saying, “This religion is a science, so pay attention to those from whom you learn it. I had the good fortune to be born [in Medina] at a time when 70 persons [Companions] who could recite hadith were still alive. They used to go to the mosque and start speaking: The Prophet said so and so. I did not collect any of the hadith that they recounted, not because these people were not trustworthy, but because I saw that they were dealing in matters for which they were not qualified.” He also said that “And finally one should not receive knowledge from a shaykh, even a respected and very pious one, if he has not mastered the learning that he is supposed to transmit” and that “There are some people whom I rejected as narrators of hadith, not because they lied in their role as men of science by recounting false hadith that the Prophet did not say, but just simply because I saw them lying in their relations with people, in their daily relationships that had nothing to do with religion”.[10]
Who was Abu Bakra? He recalled the hadith a quarter of a century after the death of the Prophet (saw), at the time that the Caliph Ali retook Basrah after having defeated Aishah at the Battle of the Camel. At that time Aishah’s position was scarcely enviable, as many of her supporters had fallen in the field of battle. It would seem providential to remember having heard a hadith that intimated an order not to participate in a war if a woman was at the head of the army. Abu Bakra also remembered other hadith just as providential at critical moments. After the assassination of Ali, Mu’awiya could only legitimately claim the caliphate if Hasan, the son of Ali, declared in writing that he renounced his rights. And this he did, under pressure and bargaining that were more or less acknowledged. It was at this moment that Abu Bakra is supposed to have recalled having heard the Prophet say that “Hasan will be the man of reconciliation”. Hasan would have been a baby when the Prophet would have said that! Abu Bakra had a truly astonishing memory for politically opportune hadith which curiously and effectively fitted into the stream of history.[11] If one follows the principles of Imam Malik for fiqh, Abu Bakra must be rejected as a source of hadith, since one of the biographies of him tells us that he was convicted of, and flogged for, the offence of qadhf (slander for giving false testimony by making an unproven accusation of zina) by the Caliph Umar al-Khattab.[12]

Alternative Interpretation
Alternatively, even if the isolated tradition reported by Abu Bakra is to be taken seriously, there is no need to infer from it a blanket rule that prohibits women from holding leadership positions in any form of government. From this point of view, it would be interesting to quote a fatwa (religious opinion) expressed by an eminent theologian from India, Maulana Ashraf Ali Thanavi. When he was asked a question regarding Abu Bakra's hadith, Maulana Thanavi gave the following reply:

Governments are of three types. The first type is one which is both personalised (tam) and based on popular sanction ('am). The tam type of government is one in which the ruler rules personally and is not dependent on any other superior's sanction. The second type is one which is absolute and has no popular sanction. The third type of government is one which has popular sanction but is not absolutist. As an example, the first type of government may have a woman as head of state who has personal authority. A woman who heads a small group and wields absolute authority without sharing it with anyone else can exemplify the second category. An example of the third category is one in which the head of state has no authority by herself but is part of a consultative body, the real authority being wielded by the consultative body. If we contemplate on the hadith it becomes obvious that what is implied by it is the first category (i.e., personalised rule of a woman). The reason for pronouncement of this tradition is that the people of Iran had made the daughter of Chosroe their ruler.

Maulana Thanavi refers to the story of the Queen of Sheba in the Qur’an and about whose rule it raised no objections. From the words of the Qur’an, "I never decide an affair until you are in my presence" (in Surah al-Naml 27:32), the Maulana concludes that her rule belonged to the third category of government (democratic) and what the Prophet objected to was the rule of the first category.[13] Even during medival times, it was considered by al- Tabari, that since a judge does not have to lead the army in war, a woman is equally qualified for appointment to judicial office.[14]

Citation of Women in Muslim History

There are many historical instances where the Prophet (saw) and the Companions consulted women. This certainly does not support the view that women, just being women, have defects of intelligence. From the accounts of women Companions of the Prophet (saw), they were never confined to their homes. They took part in activities ranging from politics to religion. During the Prophet’s time, women participated in all professions. It was only much later that women came to be confined to the home and people generally began to believe that their main role in life was to bear children and to do housework. We have read about several women who were accomplished in other fields of activity and were most sought after. Many of them led totally independent lives and even married and obtained a divorce whenever they willed. These are some examples of the participation of women throughout history that do not support the view that women are incapable of becoming leaders. These examples are taken from the era of the Prophet (saw) and the Companions, as well as during the Abbasid and Fatimid periods, and during the period of Muslim rule in India.

During the time of the Prophet (saw) and the rightly-guided Caliphs:

1. It is a well-established historical fact that the Prophet consulted Salma (ra) on the occasion of the treaty of Hudaybiya. One of the terms of the treaty was that the Muslims would not proceed to Mecca for the performance of Umrah in that year. However, the Companions were reluctant to set aside their ihram which they were wearing for the purpose of Umrah. Salma (ra) advised the Prophet to set the example in making the sacrifice and setting aside the ihram. The Companions followed suit.

2. Women participated freely in the affairs of war. For instance, Muslim women, including the Prophet’s wives themselves, were actively helping the wounded in the battle of Uhud. Some of the women even participated in the actual combat.

3. In Sunan Abu Dawud, it is reported that the Prophet (saw) appointed Umm Waraqah to be the imam to lead the prayers of her household, while the muezzin was an elderly man. This hadith is said to have a stronger isnad (chain of transmission) than another contradictory hadith, reported in Sunan ibn Majah, that a woman cannot be imam when there are men in the congregation.19

4. Umar, one of the rightly-guided Caliphs, was corrected by a woman on the value of the mahr (mas kahwin) when he wanted to fix the mahr lower. Umar had to acknowledge her opinion as correct.

5. Aishah (ra) has been known to have corrected Abu Hurairah in respect of traditions which were in conflict with the Qur'an. She was consulted on her knowledge of the Sunnah by the believers. Imam Zarkashi (born in 745 Hijrah), one of the greatest scholars of the Shafi’i school in his time, devoted a book dedicated to Aishah’s particular contribution in this field, entitled “Collection of Aishah’s Corrections to the Statements of the Companions” (Al-‘irada fi ma istadrakathu ‘A’isha ‘ala al-sahaba).[15]

6. When the Qur'an was first compiled, it was entrusted to the custody of Hafsa (ra), daughter of Umar al-Khattab and wife of the Prophet. She remained the trustee from the time of Abu Bakar’s caliphate until the reign of Uthman. The compilation was taken from her and copies made and distributed to various cities for the correction of compilations there.

7. Umar appointed Shifa binti Abdullah as an inspectress of markets.

8. During the election of Uthman as the third Caliph, Abdul Rahman ibn Auf, who was put in charge of the election, ensured that women as well as men participated in the election.[16]

9. Khansa’, Safiyah, ‘Atikah, Hind bint Harith, Kabshah bint Rafi and several others were known for their excellence in the sphere of poetry. Khansa’ published a collection of poetry.

10.Many of the Prophet's women Companions were engaged in industry, commerce, agriculture, calligraphy and other fields.

11.Apart from Aishah, Umm Salma, Umm 'Atiyyah, Asma' bint Abu Bakr, Umm Hani and Fatima bint Qays also narrated a number of hadith.

12. Rafidah Asiamiyah, Umm Muta, 'Umm Kabsha and several others were experts in medicine and surgery and Rafidah had her nursing home next to the mosque of the Prophet (saw).

During the Abbasid period, the Fatimid period and the period of Muslim rule in India:

1. During the Abbasid period many women wielded great influence in state affairs. Zubaydah, wife of Caliph Harun al-Rashid, a very intelligent woman, used to advise her husband on political and administrative matters.

2. Women in the high circles of that early period achieved distinction and exercised influence in state affairs. These women included al-Khayzuran, al-Mahdi's wife and al-Rashid's mother, 'Ulayyah, daughter of al-Mahdi, Zubaydah, al-Rashid's wife and al-Amin's mother; and Buran, al-Ma'mun's wife.

3. There were instances of Arab maidens going to war and commanding troops, composing poetry and competing with men in literary pursuits or enlivening society with their wit, musical talent and vocal accomplishments.

4. Hurrah Malikah Arwa' bint Ahmad headed the administration of the province of Yemen on behalf of the Fatimid Caliphs of Egypt. Three of the Fatimid Caliphs, Mustansir, Must' ali and Amir, reposed faith in her and gave her a free hand to govern the Yemen. She was held in high esteem by all three. The last of the three Caliphs, Amir, even appointed her Hujjah (the highest religious office under the Fatimid hierarchy). It speaks volumes for the ability of Hurrah Malikah (malikah literally means ruler or empress) that she won the distinction of being a governor of a province as well as rising to the office of Hujjah. After the assassination of Amir it was she who successfully took charge of the Fatimid Da’wah (mission) and became ruler of the Yemen.

5. In India, stories of such outstanding Muslim women as Raziyah Sultana, Chand Bibi and Nurjahan are well known. The ability of these outstanding women to govern and administer has been recognised by all historians and the courage of these women, who came to the fore despite severe restrictions and strong prejudices in society, and their extraordinary talents has won them many plaudits.[17]

Citation of Women in the Qur’an
The Qur’an itself has a special category of women who performed unique functions from the perspective of the Qur’an and the perspective of humanity. They are:

1. Hawa, wife of Adam (as) (in Surah al-Baqarah 2:35, Surah an-Nisa’ 4:1, Surah al-A’raf 7:19–23).

2. Maryam, mother of Isa (as) (in Surah al-Imran 3:36 & 37, Surah Maryam 19:16–34, Surah al-Tahrim 66:12).

3. Hannah, woman of Imaran and mother of Maryam (in Surah al-Imran 3:35).

4. Asiyah, adoptive mother of Musa (as) and wife of Pharoah (in Surah al-Qasas 28:9, Surah al-Tahrim 66:11).

5. Umm Musa, the birth mother of Musa (as) (in Surah Ta Ha 20:38–40, Surah al-Qasas 28:7 & 10–13).

6. Balqis, Queen of Sheba (in Surah al-Naml 27:23–44).

The Qur’an classifies Maryam as “one of the qanitin” (Surah 66:12) using the masculine plural form of the word that indicates one devout to Allah. There is no reason not to use the feminine plural form (qanitat)—except to emphasise that the significance of Maryam’s example is for all who believe, whether male or female. Her virtue was not confined by gender.[18]
Umm Musa received wahy, that is divine communication from Allah (Surah 28:7). Thus it demonstrates explicitly that women too have been recipients of wahy.[19]
Balqis, Queen of Sheba, ruled over a nation. The Qur’an never uses any term, subtle or direct, that implies that this position was inappropriate for her, or any other woman. On the contrary, the Qur’anic story of Balqis celebrates both her political and religious practices.[20]
Balqis’s qualities as a good leader were not measured by gender but by:

i) her capacity to fulfil the requirements of the office;
ii) her political skills;
iii) the purity of her faith;
iv) her independent judgment.

Socio-historical Circumstances and Female Participation

Comparisons with Western Civilisation

There is a popular misconception that the idea of women’s rights is based on Western laws and civilisation, and Muslim advocates of women’s rights are often accused of being Westernised or influenced by the West. Yet it is the original Islamic teachings which upgraded the status of women and rescued them from the oppression and injustice suffered by women in pre-Islamic Arabia and various other historical civilisations.
Unlike the position under Islamic law which has always acknowledged women’s property rights, the property rights of women were limited in most Western legal systems, and reforms in favour of women only began to take place in the latter half of the 19th century. For instance, under the common law of England, “the very being or legal existence of the woman was suspended during the marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection or cover, she performed everything”.26 A wife had no capacity to hold property in her own name; under common law everything she possessed became her husband’s after her marriage. It was observed in 1869 that:

By the old law of England, the husband was called the lord of the wife, he was literally regarded as her sovereign … the wife was the actual bondservant of her husband …. She can acquire no property but by him; the instant it becomes hers, even if by inheritance, it becomes ipso facto his.27

The Act of Parliament which began to alter the common law position in order to allow married woman to own property was enacted in 1882 (the Married Women’s Property Act 1882). A married woman was also denied direct access to the law courts as she was incapable of suing or being sued in her own name. She was classed together with lunatics and infants: just as a lunatic can only sue or be sued through his guardian and an infant can only sue or be sued through his father or guardian as next friend, a married woman could only sue or be sued through her husband. Law reform through Parliament in the 20th century altered the common law position, and the reforming statutes, such as the Married Women and Tortfeasers Act 1935, declared her to be capable of suing or being sued in tort or in contract or otherwise.

Female Participation in Early Muslim Civilisation
Among the first generation of Muslims, women were involved in the transmission of Prophetic reports as well as the development of legal doctrine. The most prominent of these women was Aishah (ra). The fact that Aishah (ra) was a wife of the Prophet (saw) gave her privileged status as a transmitter of religious doctrine. It was her own qualities as an individual, however, that afforded her the authority to interpret law. Female participation in the production and reproduction of the religious sciences did not cease with the demise of the first generation of Muslims. Evidence of female participation in the public transmission of the hadith can be found in many diplomas (ijazas) containing women’s names and in the manuscripts that mention women as teachers and as students. There is some evidence that women also participated in the more speculative branches of the religious sciences, such as positive law and speculative legal philosophy. Al-Hattab, a North African jurist of the 16th century CE, mentions the names of his teachers, his teachers’ teachers, and the chain of authorities (isnad) that linked him to the authors of the various books that he had studied in his legal career. Two women appear in this chain of authorities, Zaynab bint al-Kamal al-Maqdisiyya al-Musnida and Umm al-Hasan Fatima bint Khalil al-Katani (or al-Kinani).28
This fact of women’s recognised participation as intellectuals created awareness of the contradiction between the epistemological equality women enjoyed in the production and transmission of knowledge and their marginalised position in political contexts, whether as a witness or as a judge in a court of law. It also lessened the plausibility of any argument that sought to ground discrimination in the nature of the female. There are arguments in medieval Islamic legal discourse that defend the gender-based distinction against women in the political contexts by ultimately locating the source of this discrimination not within the woman, but rather in specific social circumstances and the role that women played within those social circumstances.29
A witness’s testimony and a judge’s verdict are both political because the consequences of each are immediate, tangible and binding.30 Al-Qarafi’s argument noted the difficulty courts have in enforcing the law. This institutional argument is compounded by the fact that men (including himself) in his 13th century CE Egyptian society viewed women as being generally inferior to men. Subsequently, there is a greater likelihood that the losing party will not respect the court’s decision. Al-Qarafi’s second argument, that women are inherently deficient in reason and religion, is described as weak by Ibn al-Shatt (d.1323 CE), because if one accepts this argument, this deficiency must also be present when a woman acts as a narrator of hadith.[21] However, women are recognised as narrators of hadith, and also as mufti.
It is therefore possible to extend this argument by saying that if there is a society in which men would respect the decisions of the court and comply with court verdicts regardless of the gender of the witnesses or the judges, there is then no reason to exclude qualified women from being appointed as judges.

Women as Mufti and Qadhi
Interpretation of revelation was free of gender restrictions. A woman’s legal opinion (fatwa) was just as valid and morally binding as the legal opinion of a man. Thus a woman could legitimately be a mufti, a legal expert whose task it was to communicate legal rules to non-specialists including, at times, judges and other holders of political power. There was complete agreement among Sunni jurists that women could be mufti. It was as a result of the law’s acceptance of women as mufti, moreover, that al-Tabari was led to argue that a woman could be a judge in all areas of the law.[22]
There are also a number of historical instances about the exercise of jurisdiction of qadhi by women without any objection by the ulama’ of that age. The oldest example is of the mother of Muqtadar Billah who presided at the High Court of Appeal.[23]

Appointment of Women Judges in Modern Times

The Pakistan Case

In Ansar Burney v. Federation of Pakistan,[24] a case decided by the Federal Shariat Court of Pakistan, a petition was filed to challenge the appointment of women as magistrates. The grounds opposing their appointment were:

1. They discharge their functions as judges without observing purdah, which is a clear violation of the injunctions of Islam.

2. During the period of the Holy Prophet and his rightful companions, the duties of judgeship were never entrusted to females since it appears to be a violation of the injunctions in Islam.

3. According to Muslim law, the evidence of a woman is half that of a man and her share in inheritance is equal to half that of her brother. The judgment of two women can only be equivalent to that of a male.

4. Women do not fulfil the qualifications of a judge according to established principles of Muslim jurisprudence.

The Court dismissed the petition on the following grounds:

1. There is no law or custom or usage having the force of law for or against the seclusion of women. The court is not called upon to go into the question of whether Islam allows complete seclusion or partial seclusion or whether a woman shall appear in public, veiled or unveiled.

2. The argument of counsel for the petitioner that since the evidence of a woman is half that of a man and her share in inheritance is half that of her brother, there should be at least two female judges to decide a case is impossible to accept. If such a concept is given effect to, it will follow that no male judge sitting alone can decide a civil or criminal case. According to fiqh, in cases other than that of zina in which four eye-witnesses are required to prove the offence, at least two male witnesses must prove disputes of property or criminal cases in hudud and qisas. If the argument of counsel is taken to its logical conclusion, it should follow that the number of judges to decide a particular case should correspond to the number of witnesses required to prove it.

3. The share of inheritance to a male is in proportion to his responsibilities and not due to any superiority over the female.

4. Similarly, it is not a ground for excluding women from appointment as judges that the Holy Prophet or his four successive Caliphs did not appoint any woman as such since the rule is that what is not prohibited in the Qur’an and Sunnah is permitted, and the burden of proof about anything prohibited is on the person who claims it to be so.

5. It is not denied that there is no specific and direct injunction in the Qur’an and Sunnah of the Holy Prophet concerning the matter. There are only the conflicting opinions of the jurists. (The court then dealt extensively with these opinions and historic examples of women in Muslim history.)

6. There are certain injunctions in the Qur’an which, like other injunctions on good conduct, discharge of duties, reward and punishment, are common to both men and women. These are injunctions regarding the duty of all Muslims to be just and do justice (Surah an-Nisa’ 4;58, Surah al-Ma’idah 5:42, Surah al-Hadid 57:25).

7. The words “adl’ or “qist” in these sura are used in a much wider sense and each Muslim, whether male or female, is bound to be just and equitable in his dealings with his spouse, parents, children, neighbours, relatives, friends, fellow Muslims and all others. The concept of justice in deciding disputes between the parties or in dealing with criminal cases is only a part of adl or qist. The verses Surah 4:58 and 5:42 clearly envisage determination of disputes or litigation. There is no distinction in this connection between man and woman.

8. In view of this and in the absence of any prohibition in the Qur’an or hadith about the judgeship of woman or any restriction limiting the function of deciding disputes to men only, the generality of these verses cannot be cut down.

9. From whatever angle, there appears to be no merit in the objection raised by the petitioner against the appointment of women to judicial offices.

Indonesian Experience
1. The hadith related by Abu Bakra is stated in the negative—“that a nation can never prosper …” is not a direct prohibition. This hadith is interpreted as not prohibiting the appointment of women as leaders or as judges.

2. That the appointments are on matters other than hudud and qisas (that is, accepting the Hanafi approach).

3. That both men and women are enjoined to do good and prevent evil in Surah al-Imran 3:104:

and that there might grow out of you a community (of people) who invite unto all that is good, and enjoin the doing of what is right and forbid the doing of what is wrong …

4. That it is inconceivable that all women are incapacitated morally and intellectually. The Prophet (saw) himself acknowledged the intelligence of Aishah (ra), his wife. The Prophet (saw) stated that half of knowledge is in her hands. Surah al-Imran 3:190 & 191 states that “those who reflect” are those who “remember Allah when they (men and women) stand, and when they (men and women) sit, and when they (men an women) lie down to sleep”. Thus the Qur’an has not discriminated men and women in “those who reflect (or think)”.

5. That the interaction of women and men in public does not necessarily bring about a corruption of morality (fitnah). One of the necessary qualifications of a judge is integrity. If the appearance of a woman litigant does not bring about a corruption of morals of the male judge, it would follow that the appearance of male litigants will not bring about the corruption of the female judge. Surah an-Nahl 16:97 states:

As for anyone—be it man or woman—who does righteous deeds, and is a believer withal … We shall grant unto these their reward in accordance with the best that they ever did.

6. The fact that the rightly guided Caliphs did not have women appointees as judges does not mean that there exists a prohibition. There is no clear nass in the Qur’an and Sunnah to prohibit such appointments. The duty of arbitration and settling disputes is a matter enjoined by the Qur’an and Sunnah. The Qur’an has left the decision on appointing the arbiters or judges to humans who can fulfil the requirement of the task of judging.[25]

A Comparison between Pakistan and Indonesia
It might appear that while the Pakistan decision allows women judges to hear all cases under the Syariah, the Indonesian argument suggests a limitation to family cases. It should, however, be observed that the Indonesian appointees (male and female) in the Syariah Court in Indonesia are only for family cases under the Marriage Law of 1974. The argument that the appointments are on matters other than hudud and qisas is thus a reflection of the actual situation arising in Indonesia.
It is interesting to note that both the Pakistan decision and the Indonesian argument cite Surah al-Taubah 9:71:

The Believers, men and women, are protectors of one another.

Revealed in 8 Hijrah towards the end of the Prophet’s life, this verse sums up the Islamic way of life within a relationship of women and men as each other’s protectors and friends. It sums up the spirit of equality and mutuality of men and women.


There is no prohibition in the Qur’an against the appointment of women to the office of judgeship. The well-known principle that lawfulness is inherent in everything unless there be reason for its prohibition should therefore determine the question. Juristic opinion is not the whole of Islam. Juristic opinion is an interpretation of the textual sources of the Qur’an and Sunnah as understood in a particular historical context.

Once it can be understood that (juristic opinion or historical Syariah is a construction by founding jurists), it should become possible to think about reconstructing certain aspects of (historical) Syariah, provided that such reconstruction is based on the same fundamental (revealed) sources of Islam and is fully consistent with its essential moral and religious precepts.[26]

With regard to the appointment of women judges, the following approaches may be taken against the jumhur opinion that women cannot be appointed to a judicial office:

1. By adopting the Hanafi opinion that women can be appointed as judges in family law cases. In any case, in Malaysia, as in Indonesia, the Syariah Courts deal mainly with family law cases.

2. By adopting the opinion of al-Tabari and Ibn Hazm that women can be appointed as judges in all cases as long as the woman appointed fulfils the requirements for the position. This was a very radical view in those medieval times, but should be acceptable and logical in these modern times.

3. By rethinking the paradigm, involving a transformation or reconstruction of the position of men and women in society generally, their participation in public life as well as the qualifications for appointment to judicial office in the Syariah Courts.

The sad situation of women in many contemporary Muslim societies, which contradicts the teachings of Islam, is a concrete fact that cannot be denied. Surah ar-Rad 13:11 reminds us:

Allah does not change the situation of a people until they change it themselves.

This is a recurring theme in the Qur’an, as can be seen also from Surah al-Anfal 8:53.
Muslims should be reminded that the subordination of women based on the view that women are inferior to men was not an Islamic viewpoint, but a reflection of the prevailing opinions in various medieval societies and cultures, originating in various pre-Islamic civilisations, including the highly feudalised societies of the Byzantine and Persian empires as well as the Greek and Roman civilisations. The Jewish and Christian influences have also led many Muslims to believe in the Biblical version that God created woman from man’s rib, and woman is therefore, in her origin, derivative and secondary. From the teachings of the Qur’an, it is the Muslims who should have led the rest of the world in an enlightened reconstruction of the status of men and women in their relations towards each other and their participation in society within the ethical and Islamic way of life.


Abbott, Nabia (1942), Aishah: The Beloved of Muhammad. Chicago: University of Chicago Press, reprinted Al Saqi 1985.
An-Naim, Abdullahi (1990), Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law, New York: Syracuse University Press.
Asad, Muhammad (1980), The Message of the Qur’an, Gibraltar: Dar Al-Andalus.
Blackstone (1965), Blackstone's Commentaries on the Laws of England, Oxford: Clarendon Press.
Engineer, Asghar Ali (1992), The Rights of Women in Islam, Kuala Lumpur: IBS Buku Sdn Bhd.
Fadel, Mohammad (1997), “Two Women, One Man: Knowledge, Power, and Gender in Medieval Sunni Legal Thought”, Int. J. Middle East Studies 29: 191.
Fathi Osman (1996), Muslim Women in the Family and the Society, Reprint, Kuala Lumpur: SIS Forum (Malaysia) Berhad.
Hamidullah, Muhammad (1988), The Prophet Establishing a State and His Sucession, Islamabad: Pakistan Hijra Council.
Hussein, Aftab (1991), Status of Women in Islam, Lahore: Law Publishing Company.
Manshur, Faizah (1987), “Kedudukan Hakim Wanita dan Peranannya di Linkungan Peradilan Agama”, paper prepared for discussion at a special meeting of Surakarta Women Judges in Yogyakarta.
Mernissi, Fatima (1991), Women and Islam: an Historical & Theological Enquiry, Oxford: Basil Blackwell.
Mill, John Stuart (1869), “The Subjection of Women”, in Essays on Equality, Law and Education (Collected Works), Reprinted. Toronto: University of Toronto Press, 1984
Muhammad, KH Hussein (2001), Fiqh Perempuan: Refleksi Kiai atas Wacana Agama dan Gender, Yogyakarta: LKiS.
Salbiah Ahmad (1991), “The Judiciary and the Appointment of Women Judges in the Syariah Courts of Malaysia”, presented for Unit Pengajian Wanita dan Sumber Manusia, Pusat Pengajian Sains Kemasyarakatan, Universiti Sains Malaysia, Penang, 1 October 1991.
Wadud, Amina (1999), Qur’an and Woman, Kuala Lumpur: Oxford University Press.

[1] This paper is partly based on Salbiah Ahmad (1991), “The Judiciary and the Appointment of Women Judges in the Syariah Courts of Malaysia”, presented for Unit Pengajian Wanita dan Sumber Manusia, Pusat Pengajian Sains Kemasyarakatan, Universiti Sains Malaysia, Penang, 1 October 1991.
[2] Fathi Osman (1996), p. 48.
[3] Muhammad Asad (1980), commentary on Surah 2:282
[4] Amina Wadud (1999), p. 86.
[5] Aftab Hussein (1991), p. 220.
[6] Asghar Ali Engineer (1992), p. 77.
[7] Nabia Abbott (1942), p. 173.
[8] Aftab Hussein (1991), p. 221.
10 Op. cit., p. 228.
11 Op. cit., p. 221, 222.
12 Fatima Mernissi, p. 49.
[9] Op. cit., p. 50
[10] Op. cit., p. 59, 60.
[11] Op. cit., pp. 53, 58.
[12] Op. cit., pp. 60, 61.
[13] Referred to in Asghar Ali (1992), pp. 77–79.
[14] Referred to in Mohammad Hashim Kamali, Freedom, Equality and Justice in Islam (1999), p.146.
19 Discussed in Hussein Muhammad, pp. 29–38.
[15] Referred to in Fatima Mernissi, p. 77.
[16] Ibn Kathir, al Bidaya wa an Nihaya, referred to in Muhammad Hamidullah (1988), p. 124.
[17] Asghar Ali (1992), pp. 81, 82.
[18] Amina Wadud (1999), p. 40.
[19] Ibid.
[20] Ibid.
26 Blackstone’s Commentaries on the Laws of England.
27 Mill, John Stuart (1869).
28 Mohammad Fadel (1997), p. 191.
29 Ibid.
30 Op. cit., p. 188.
[21] Op. cit., p. 192.
[22] Op. cit., pp. 189, 190, 200.
[23] Tarikh al Khulafa by Sayuti, cited in Aftab Hussein (1991), p. 229.
[24] PLD (1983) FSC 73.

[25] Faizah Manshur (1987).
[26] Abdullahi An-Naim (1990), p. xiv.