Question:
Assalamu
alaikum Wa Rahmatullah Wa Barakatuhu
My dear Brother, may Allah protect
you
This subject of women becoming judges
is discussed by many members, i.e. to be appointed in the post of a judge. This
matter must be reviewed, from the actions of the Prophet صلى الله عليه وسلم and the companions
after him and the adherence of the Ummah to these actions throughout its long
history, we see that this matter was not known. Since the establishment of the
first Islamic state until the demise of the Othmani Khilafah, never was a woman
appointed as a judge. What should be taken into consideration when extracting
the rule on women becoming judges are the reality of the judiciary, and its
precedence, and the reality of the public life and women's presence in it; if
she is not permitted to leave her house without her husband's permission, and
is not allowed to be in seclusion with the disputing parties, then the priority
is that she does not become the judge between them...
From Hani Uqda
Answer:
Wa Alaikum
Assalam Wa Rahmatullah Wa Barakatuhu
1. Sunnah is the saying, action, and
the consent (over a saying and action) of the Prophet صلى الله عليه وسلم... this is all in
meaning whether it is correct or applied to the issue. It is true that the
actions of the Prophet صلى الله عليه وسلم are Shari’ah rules
and they are sufficient to show the beauty of the Shari’ah text in general, but
there are basis that must be followed in the method of referring to the
Prophet's action صلى الله عليه وسلم, if the Prophet
does not carry out the action, this is not taken as an evidence for its
prohibition, but there must be a presence of another evidence, or a Qareena
(indication) that shows that when the Prophet صلى الله عليه وسلم is not carrying out an action it
means that the action is a haram action. The Prophet صلى الله عليه وسلم did not nominate a
Khaleefah after him صلى الله عليه وسلم; the companions
(ra) did not understand that to mean it is prohibited for them, so they asked
Abu Bakr (ra) to nominate a Khaleefah after him, and he nominated Omar (ra),
may Allah be pleased with them all. This is because the fact that the Prophet صلى الله عليه وسلم did not do the
action was not supported by evidence or a Qareena that the action is
prohibited. Bukhari narrated from Abdullah Bin Omar (ra), he said: "Omar
was asked if he can nominate his successor? He said: "If I do nominate a
successor, then the one who was better than me also nominated one, he is Abu
Bakr, and if I do not, then he who was better than me did not nominate one, he
is the Messenger صلى الله عليه وسلم. So every action
that was performed by the Prophet does not mean that it is therefore prohibited
unless it is supported by an evidence or Qareena to indicate the prohibition.
This is similar in the matter of the
Prophet صلى الله عليه وسلم appointing women
as judges, simply by not doing so does not mean that the action is prohibited,
but this should be backed by evidence or a Qareena that indicate the
prohibition. There is no supporting evidence and there is no Qareena present,
therefore it is not understood by the non-action by the Prophet صلى الله عليه وسلم that the action is
prohibited except if it is accompanied by evidence or Qareena.
2. As for what you mentioned that the
restrictions on women in terms of being "a housewife and an honor that
must be protected and what accompanies that of natural reasons which makes her
unable to carry out many Shari’ah obligation...; if she is not permitted to
leave her house without her husband's permission, and is not allowed to be in
seclusion (khulwa) with the disputing parties, then the priority is that she
does not become the judge between them..."
This does not affect the
permissibility of her being appointed as a judge, Shari’ah rule does not
stipulate that it is an obligation on women to become judges, it is only
permitted, and a woman is more aware of her home circumstances and her
abilities. In addition, all of these matters are not a condition of the
contract, nor are conditions of a Judge, nor in the subject of judiciary. Even
the seclusion (Khalwa) with the disputing parties that you mentioned, as if you
were trying to point out that it is part of the investigation in a (court)
case, which is not the case, otherwise it would not be permissible for the male
to be a judge, because not all the disputing parties are men, but there are
women as well. And so, just as it is not permitted for the female judge to be
in seclusion with disputing men, it is the same for the male judge, he cannot
be in seclusion with disputing women. With the knowledge that seclusion is not
necessary to solve a case, it is normal to find others present in the court,
like the prescriber of the judge, the witnesses and non-marriageable relatives
(Mahram)... and so on.
3. The Shari’ah texts are clear in
the issue of permissibility of a woman becoming a judge to settle disputes
between people; it is the same with position of a Hisba judge. In order to
elaborate more how the evidences are related to this issue as we mentioned
previously, let me repeat a few matters that I have explained on this
questions' site, it will ease the understanding of the Shari’ah texts and the
extraction of rules from them.
A. There is a style
used by the Arabs, called "Taghleeb" (addressing the dominant
element), i.e. that the speech's tone is masculine, and the female is included
through the style of "Taghleeb". It is well known to those who have
knowledge of the fundamentals of fiqh, like the saying of Allah: "O you who believe" (masculine
terms used), in which female believers are also included and are not excluded
from the rule except by another text.
As well as what was reported by Al-Bukhari, that Abu Huraira
(ra) narrated that the Prophet صلى
الله عليه وسلم said:
"When a man frees a Muslim slave,
Allah will save all the parts of his body from the (Hell) Fire as he has freed
the body-parts of the slave."
It is also applicable to women in the "Taghleeb"
style. i.e. "when a woman frees a Muslim slave...".
Also like the Hadith of An-Nisa'i regarding the Zakat of the
Camel... Abu Hurairah narrated, he said: I heard the Messenger of Allah صلى الله عليه وسلم, saying:
"Any man who has camels and does
not pay what is due on them in its Najdah or its Risl mean". They said: 'O Messenger of Allah, What is their Najdah
and Risl?' He said: "In
times of hardship or in times of ease; they will come on the Day of
Resurrection as energetic, fat and lively as they ever were. He will be laid
face down in a flat arena for them and they will trample him with their hooves.
When the last of them has passed, the first of them will return, on a day that
is as long as fifty thousand years, until judgment is passed among the people,
and he realizes his end..."
This hadith also applies to women in the prevailing style, if
she does not pay what is due from zakat for the camels she owns; because there
was no mention of a text that excludes her from the rule.
For example, His سبحانه وتعالىsaying:
"And establish prayer and give
zakah and obey the Messenger-that you may receive mercy" (An-Nur: 56)
Praying, Zakat and the obedience to the Prophet صلى الله عليه وسلم is an obligation on
men and women, because there was no mention of a text that excludes her from
the rule.
And in His سبحانه
وتعالىsaying:
"And let there be [arising] from
you a nation inviting to [all that is] good, enjoining what is right and
forbidding what is wrong, and those will be the successful" (Ali-Imran: 104)
Thus, political work with a group calling for Islam and enjoins
the good and forbid the evil includes both men and women, because there was no
mention of a text that excludes her from the rule.
Also the example:
Narrated by Bukhari in his saheeh from Qatada from Salih Abi
Khalil, from Abdullah Bin Al-Harith, which is referred to Hakeem Bin Hizam
(ra), who said: the Prophet صلى
الله عليه وسلم said:
"The seller and buyer have the
choice (to continue or to end their agreement) as long as they do not depart
the location of the agreement, If they are truthful and thorough, Allah will
bless the contract, but if they were untruthful and ambiguous, the barakah
diminishes from their contract"
This includes men and women; because there was no mention of a
text that excludes her from the rule.
B. But this
"Taghleeb" style does not apply if it was suspended with a Shar'i
text:
So for example, Allah سبحانه وتعالىsays:
"Fighting is enjoined on you,
and it is an object of dislike to you" (Al-Bakarah: 216)
the speech here is in a masculine tone, but we do not use here
the style of "Taghleeb", so we do not say that this address also
includes women through the style of "Taghleeb" in the terms
"Fighting has been prescribed for you", because this is suspended
with other Shar'i texts making Jihad only Fardh upon men,
It was reported by Ibn Maajah from Habib bin Abi Amrah, from
A'isha bint Talhah, from A'isha the mother of the believers (raa), she said: I
said: "O Messenger of Allah, do women have to engage in jihad? He said: "Yes,
Jihad in which there is no fighting: Hajj and 'Umrah." i.e. that Jihad in
its fighting sense is not Fardh upon women.
Another example, Allah سبحانه وتعالىsays:
"O you who believe! When the
call is made for prayer on Friday, then hasten to the remembrance of Allah and
leave off trading; that is better for you, if you know." (Al-Jumua: 9)
I.e. it is prohibited for men to continue their trade at the
time of Friday Adhan, and here, the "Taghleeb" style does not apply,
i.e. it is not prohibited for women to continue their trade during the Adhan
time, because Friday Prayer is not Fardh upon women, as proven in the Hadith of
the Prophet صلى الله عليه وسلم, reported by
Al-Hakim in Al-Mustadrak by the two Sahih, narrated by Abu Musa, that the
Prophet صلى الله عليه وسلم said:
"Salaatul Jumaah in congregation
is a duty (wajib) upon every Muslim except for four: a slave, a woman, the
immature boy and the sick."
Al-Hakim said: "This hadith (narration) is Sahih (valid)
according to the requirements of the two Sheikhs (Bukhari and Muslim) and
Adh-Dhahabi agreed with him.
And in His سبحانه
وتعالىsaying:
"And whoever does not judge by
what Allah has revealed - then it is those who are the disbelievers" (Al-Ma'ida: 44)
This is a general text that includes men and women, even though
it is in the masculine form according to the Taghleeb style. But this general
text was restricted to men only in the issue of ruling, in the Hadith of Bukhari,
narrated by Abu Bakra, who said: the Prophet صلى الله عليه وسلم said:
"Never will succeed such a nation
as makes a woman their ruler."
Because guardianship, i.e. leadership is not allowed for women,
this restricts the general rule. This does not mean therefore that women are
less intelligent than men, but it is a ruling that only Allah Knows the wisdom
behind and it is best for both men and women.
C. There Hadeeths
that address both men and women with issues, and includes some issues that are
restricted to men only; while the rest of the issues are addressed to both men
and women.
The text of the Hadith reported by Bukhari in his Sahih, Abu
Huraira narrated that the Prophet (peace and blessings be upon him) said:
"There are seven persons whom
Allah will shade on a Day when there is no shade but His. A just ruler, a young
man who grew up in the worship of Allah, a man whose heart is attached to the
Masajid, two men who love each other for the sake of Allah who meet and depart
from each other for the sake of Allah, a man whom a beautiful woman of high
status seduces but he rejects her by saying I fear Allah, a man person who
spends in charity and conceals it such that his right hand does not know what
his left hand has given and a man who remembered Allah in private and he
wept." (Agreed upon).
This Hadith is applicable to the woman through the style of
Taghleeb regarding the five out of the seven categories mentioned, which have
not been suspended through other Shar'i, so it applies to a young woman who
grew up in the remembrance of Allah... and to two women who love each other for
the sake of Allah... and a woman whom a man seduces...and a woman who spends in
charity... and a woman who remembered Allah in private and she wept...
But this Taghleeb style does not apply to the Just Ruler, and a
man whose heart is attached to the Masajid because they are both suspended
through a Text:
As for the "Just Ruler", the "Taghleeb"
style does not work here because a woman does not take leadership, as the
Messenger of Allah صلى الله عليه وسلم said in the Hadith
of Bukhari, narrated by Abu Bakra, who said: When the Prophet صلى الله عليه وسلم heard the news that
the people of the Persia had made the daughter of Chosroes (Kisra) their Queen
(ruler), he said: "Never will succeed such a nation as makes a woman
their ruler." Because guardianship, i.e. leadership is not allowed for
women, as for other positions than leadership like Judiciary, electing a
Khaleefah, elect and be elected in Majlis al-Ummah (Ummah Council) and other
such legitimate jobs that are not part of leadership, are permissible for her
to carry out... this means that the word "Just Ruler" does not
include her, yet some interpreters interpreted "Just Ruler" to mean a
Just Shepherd, applying it to women according to the Hadith reported by Bukhari
that Abdullah Ibn 'Umar said: I heard the Messenger of Allah, may Allah bless
him and grant him peace say:
"All of you are shepherds and
each of you is responsible for his flock. An Imam is a shepherd and he is
responsible for those in his care. A man is a shepherd in respect of his family
and is responsible for those in his care. The woman is a shepherd in respect of
her husband's house and is responsible for those in her care..."
But most likely that "Taghleeb" is not used here
because the word “Just Ruler” is preponderant to the Ruler, hence it is
non-applicable to women.
As for "A man whose heart is attached to the Masajid",
it is also suspended through the Text stating that the Prayer of a woman in her
home is better than her Prayer in the Masjid, this is in accordance to the
Hadith of the Prophet صلى الله عليه وسلم, reported by Ahmad
in his Musnad, that Abdullah Ibn Suwaid Al-Ansari, on the authority of Umm
Humayd, who came to the Prophet (peace be upon him) and said: "O Messenger
of Allah, I love to pray with you." He replied:
"I know that you like to pray
with me, But your prayer in your room is better for you than your prayer in
your courtyard and your prayer in your courtyard is better for you than your praying
in your house, and your prayer in your house is better for you than your prayer
in the mosque of your people, and your prayer in the mosque of your people is
better for you than your prayer in my mosque."
Consequently, five out of the seven categories apply to women
with the "Taghleeb" style, as for the just Ruler and being attached
to the Masajid, they are not applicable because they are suspended through Text
and therefore the style of "Taghleeb" does not work here.
And for the full benefit, I mention to you what came in the
Tafseer of Fatih Al-Bari for Ibn Hajar for the Hadith Al-Bukhari mentioned,
especially the end of the interpretation of the Hadeeth, this is its text:
"...Although men are mentioned
in this hadeeth, women are also included in what is described here. Although
what is meant by a "just leader" is the position of imaam
(Khaleefah), women may also be included in this, if they have children and
treat them justly. The idea of being attached to the mosque does not apply to
women, because a woman's prayer in her home is better than her prayer in the
mosque. Apart from that, women have a share in all of these things..."
Consequently, the Hadeeth of the seven applies to women except
for the just Ruler and whose heart is attached to the Masajid, they are not
applicable because the "Taghleeb" style is suspended through Text.
4. Let us mention the texts related
to the judiciary and see if it includes men and women or if it specifies men
excluding the woman:
Bukhari narrated from Abdul Rahman
Bin Abi Bakra, that he said: Abu Bakra wrote to his son who was in Sijistan,
that "I heard the Prophet صلى
الله عليه وسلم say:
"No judge should make a judgment
between two while he is in a state of anger."
Al Hakim extracted in his Mustadrak
on the two Sahihs from Abdullah Bin Buraida, from his father, from his Prophet صلى الله عليه وسلم that he said:
"Judges are three, two are in
hellfire and one is in heaven. The judge who discovers the truth and rules for
it is in heaven. The judge who discovers the truth, but judges unjustly
deliberately, he is in hellfire. And the judge who rules without knowledge, he
is in hellfire" this is a Sahih Hadeeth in its chain of narration (isnad)
and has a witness for its Sahih isnad according to Muslim.
In "Al-Ma'jam al Kabeer" by
Tabarani on the authority of Ibn Buraida, from his father who said: the Prophet
صلى الله عليه وسلم said:
"The judges are three, two are in
hellfire and one is in heaven. The judge who rules against the truth knowingly,
he is in hellfire. The judge who rules without knowledge and violates the
people's rights, he is in hellfire. The judge who rules for the truth is in
heaven".
Tirmithi narrated in his Sunan from
Ibn Buraida, from his father that the Prophet صلى الله عليه وسلم said:
"Judges are three, two are in
hellfire and one is in heaven. The judge who rules against the truth knowingly,
he is in hellfire. The judge who rules without knowledge and violates the people's
rights, he is in hellfire. The judge who rules for the truth is in
heaven".
Ibn Majah narrated in his Sunan from
Ibn Buraida, from his father, from the Prophet صلى الله عليه وسلم, He said:
"Judges are three, two are in
hellfire and one is in heaven, a man discovered the truth and ruled for it is
in heaven, a man who judged between people ignorantly is in hellfire and a man
who was unjust in his judgment is in hellfire".
Al Bazzar narrated in his Musnad from
Ibn Buraida, from his father (ra) that the Prophet صلى الله عليه وسلم said:
"Judges are three, two are in
hellfire and one is in heaven: The one judges unjustly is in hellfire, the
judge who judges out of ignorance is in hellfire, and the judge who judges by
the truth is in heaven".
Mu'ammar Bin Rashid in Jami' from
Abdul Razzaq, said that Mu'ammar told us, from Qatada that Ali (ra) said:
"Judges are three: a judge who
performed Ijtihad but was mistaken, he is in hellfire, another who knew the
truth but ruled against it, he is in hellfire and the one who performs Ijtihad
and was right, he is in heaven"
Reviewing these hadeeth, we find that
they came in the masculine form or addressing men, both men and women are
addressed unless there is a Sahih text that excludes women. In these hadeeths
there is no restriction to men only like in the issue of "ruling".
This is why both men and women are addressed by these rules. It is allowed for
the woman to become a judge to settle disputes between people or as judge of
Hisba (violations of the community's rights).
As for becoming the Judge of Madhalim
(unjust acts) which deals with removing the ruler, women cannot be appointed in
that post as it is linked to women not taking ruling posts. Therefore, it is
not allowed for women to become a judge of Madhalim.
All this shows clearly that women can
become judges as general judges and Hisba judges, This is permissible for both
men and women.
5. In conclusion, looking at the life
of women during the time of the Prophet صلى الله عليه وسلم it reflects a complete opposite
picture to what came in the question. Women took part in life just like men,
they carried intellectual and political struggle. The first martyr in Islam was
Summayah, a woman, who carried the Dawah with the Prophet صلى الله عليه وسلم. Umm Umara and Umm
Manee' were amongst the people who gave a pledge of support to the Prophet صلى الله عليه وسلم in the second
Aqabah pledge, with the men. Women treated the injured in the battlefield, they
enjoined the good and forbade the evil, and they accounted the Khaleefah. Truly
they were the twin-halves of men. All of this was according to the Shari’ah
rule that regulated the life of men and women, and women were not a wasted
effort, or house-ridden never leaving them.
And in the end, the best picture that
portrays women in the Islamic life are given in the saying of Allah سبحانه وتعالى:
"The believing men and believing
women are allies of one another. They enjoin what is right and forbid what is
wrong and establish prayer and give zakah and obey Allah and His Messenger.
Those - Allah will have mercy upon them. Indeed, Allah is Exalted in Might and
Wise. Allah has promised the believing men and believing women gardens beneath
which rivers flow, wherein they abide eternally, and pleasant dwellings in
gardens of perpetual residence; but approval from Allah is greater. It is that
which is the great attainment" (At-Tawba: 71-72)
And in His سبحانه وتعالىsaying:
"Indeed, the Muslim men and
Muslim women, the believing men and believing women, the obedient men and
obedient women, the truthful men and truthful women, the patient men and
patient women, the humble men and humble women, the charitable men and
charitable women, the fasting men and fasting women, the men who guard their
private parts and the women who do so, and the men who remember Allah often and
the women who do so - for them Allah has prepared forgiveness and a great
reward" (Al-Ahzab: 35)
Your Brother
Ata Bin Khalil Abu Al-Rashtah
20 Sha'ban 1435 AH
18/06/2014 CE
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