Tradicionalista

“It is told of Malik ibn Anas (d.795) the founder of the Malikite school of jurisprudence and one of the great hadith transmitters, that “when he intended to sit down to recite hadith, he performed the ablution, donned new garments, put on a new turban, took his place on the platform in awe, reverence, and great seriousness. As long as the lecture continued, incense was contantly burned. His reverence to hadith was so great that it happened in one session that a scorpion stung him sixteen times, and he did not show any sign of disturbance.”

(Annemarie Schimmel, And Muhhamad is His Messenger)

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.

Taken from an article by GF Haddaad:

Ibn Abî Zayd al-Mâlikî reports Sufyân ibn `Uyayna as
saying: “Hadith is a pitfall except for the fuqahâ’,”

Mâlik’s companion `Abd Allâh ibn Wahb said: “Hadith is a
pitfall except for the Ulema. Every memorizer of hadith that does
not have an Imâm in fiqh is misguided , and if Allâh had not
rescued us with Mâlik and al-Layth [ibn Sa3d], we would have been
misguided.”

Ibn Abî Zayd comments: “He [Sufyân] means that other than the
jurists might take something in its external meaning when, in fact,
it is interpreted in the light of another hadith or some evidence
which remains hidden to him; or it may in fact consist in discarded
evidence due to some other [abrogating] evidence. None can meet the
responsibility of knowing this except those who deepened their
learning and obtained fiqh.”

Ibn Wahb is also reported to say: “I met three hundred and sixty
learned people of knowledge but, without Mâlik and al-Layth, I would
have strayed.”

Another versions states: “Were it not for Mâlik ibn Anas and al-
Layth ibn Sa`d I would have perished; I used to think everything
that is [authentically] related from the Prophet - Allâh bless and
greet him - must be put into practice.”

Another version has: “I gathered a lot of h.adîths and they drove me
to confusion. I would consult Mâlik and al-Layth and they would say
to me, ‘take this and leave this.’”

Ibn Wahb had compiled 120,000 narrations according to Ahmad ibn Sâlih.

Hence, Ibn `Uqda replied to a man who had asked him about a certain
narration: “Keep such hadiths to a minimum for, truly, they are
unsuitable except for those who know their interpretation.

Yahya ibn Sulayman narrated from Ibn Wahb that he heard Mâlik say: ‘Many
of these hadiths are [a cause for] misguidance; some hadiths were
narrated by me and I wish that for each of them I had been flogged
with a stick twice. I certainly no longer narrate them!’”

By his phrase, “Many of these hadîths are misguidance,” Mâlik means
their adducing them in the wrong place and meaning, because the
Sunna is wisdom and wisdom is to place each thing in its right
context.

Another good read on the topic Shaykh Nuh’s commentary on the Reading of Sahih Bukhari on one’s own.