Women and Testimony in Traditional Islamic Law

{ September 7, 2007 @ 8:46 pm } · { Hadith, Islam, Islamic Awareness, Maliki fiqh, Women }

Two women one Man

I took most of my material from Mohamed Fadel’s informative article on the issue and a book by Ibn al Qayyim al Jawziyya.

 

Does the rule establish a norm? Is it applicable to all cases tried by a court?

Riwaya(narration) and fatwa( non-binding legal opinion) are strictly gender neutral by ijma3(consensus) and so is the interpretation of revelations.

13^th century jurist al Qarafi-

Ibn al Salah- adab al Mufti- “Maleness and freedom are not required of the mufti., just as is the case for the narrator.  A woman could and still can be a legitimate mufti and her legal opinions are just as morally binding as that of males.

A popular opinion among Muslim laypersons and even exegetes is that the verse 2:282 is explained because women are inherently more unreliable than men. However jurists could not accept that because if women are more inherently unreliable than men then how come there are chains of narration of Hadith with only women comprising them? Hadith is something that is surely important in Islam and the preservation and classification of Hadith is significant in Islamic scholarship. If women are intellectually less capable, then surely they would not be able to narrate Hadith. Also, if you look into Hadith history women were NOT fabricators of Hadith while men were, because they wanted some political end.

Aisha bint Abu bakr may God be pleased with her was the most prominent. She issued legal opinions on controversial issues and subsequent scholars would use her opinions to bolster their own.

Even after the death of the first generation of Muslims, women continued to actively participate in the transmission of ahadith and they were also jurists (faqihas)

“… a 10th-century Baghdad-born jurist who traveled through Syria and Egypt, teaching other women; a female scholar — or muhaddithat — in 12th-century Egypt whose male students marveled at her mastery of a “camel load” of texts; and a 15th-century woman who taught Hadith at the Prophet’s grave in Medina, one of the most important spots in Islam. One seventh-century Medina woman who reached the academic rank of jurist issued key fatwas on hajj rituals and commerce; another female jurist living in medieval Aleppo not only issued fatwas but also advised her far more famous husband on how to issue his.” (From the article A Secret History)

 

Umm al-Darda, a prominent jurist in seventh-century Damascus, is startling. As a young woman, Umm al-Darda used to sit with male scholars in the mosque, talking shop. “I’ve tried to worship Allah in every way,” she wrote, “but I’ve never found a better one than sitting around, debating other scholars.” She went on to teach Hadith and fiqh, or law, at the mosque, and even lectured in the men’s section; her students included the caliph of Damascus.”

 

Back in the day, women were shapers of Islamic law, now in many places; they are not even considered as someone to consult with about these matters.

Also many women’s names were found on ijazas as being teachers and students of men.

 

Al-Hattab, a North African jurist of the 16^th century, mentions women in his chain of authorities (isnad). One of them Fatima al Kinani was a jurist who transmitted important works of Maliki jurisprudence.

 

The Muslim Jurists of the Early Centuries used Social Circumstances to explain verse 2:282

 

One thing I want to shed light on is that the interpretations of this verse that say that this verse is due to a social circumstance rather than gender bias is NOT new. It is not a modern argument. Many people say that only Muslim modernists say this. However, the early jurists, including Ibn Taymiya also use social circumstances to explain this verse.

The opinions of the jurists are taken prmarily from Mohamed Fadel’s article.

 

Al Qarafi(prominent Maliki jurist of the 13^th century)- presents a confusing argument

But his 1^st justification is that in 13^th century women were viewed as inferior to men. He also mentions that in the Egyptian society courts had a hard time getting the people to respect their decisions. He also said that the losing party of the court would hold a grudge against the witnesses that testified against them. He says that the wisdom of having two women would lessen the blow and get them to respect the court decision.

His 2^nd justification is back to biology that women are inherently less reliable in matters of memory.

Ibn Al Shatt’s (1323) commentary says that this is a weak argument because if women are inherently less reliable than this deficiency in females would also be present when women narrated Hadith.

 

The nest jurist is the 15^th century Hanafi Scholar At-Tarablusi-

He basically says that this law was put in place to avoid social corruption and involving women too much in political discourse. So he believes hthat women’s testimony is equal to men but that women shouldn’t testify since that requires leaving the house.

The interesting part is that he doesn’t call into question the reliability of women’s testimony.

 

 

Another interesting part is that men’s testimony is not welcome in issues that pertain to females, or issues that socially pertain to females. We also see in the Surah Nur, verses 6-9 that a woman can also testify that she didn’t commit adultery. So the testimony of female witnesses without male witnesses is enough to win a claim if it has to do with breastfeeding or childbirth or pregnancy.

 Now for my favorites ibn taymiyya and ibn al qayyim al Jawziyya:

Ibn al Qayyim al Jawziyya says and I got this from his book:

I can’t type Arabic on this computer sorry I stink at transliteration.

 

Wa la rayba anna hadihi al hikma fi al ta3dud hiya fi al tahammul fa –amma idha aqalat al amr a wa hafizat wa kanat mimman yuthaq bi diniha fa inna al maqsud hasil bi khabaraiha ka-ma yahsul bi-akhbar al diyanat

 

So these scholars basically reject the 2 women=1 man rule. They say that women’s testimony is accepted based on what she says and based on whether she is credible and trustworthy in her religion. They make an interesting argument that this verse refers to recording a testimony “for the purpose of protecting a right in the event of a future dispute” rather than testifying before a judge.

Ibn Taymiyya says that this verse is not directed towards judges but it is rather directed towards people involved in a transaction. He says that the verse doesn’t even have any relevance to courtroom proceedings! And if it does have any significance it’s just saying that ruling with two male witnesses is probably the best thing to do probably because of women’s lack of frequent movement.

 

 

Finally, people that reject a blanket discrimination of women in testimony are radically breaking from Traditional Islamic Law. The early jurists used a whole lot of social circumstances to explain why there is apparent gender discrimination. This is just preliminary. I still haven’t finished going through Ibn al Qayyim’s material.