I read your interesting article on this subject, and it seems to me that an article recently appeared in “El-Shaab“, Egypt (el-shaab.com, Oct. 16, 1998) organ of the Muslim Brethren’s Political Party “Wafd“, gives an interesting answer to this question: in its article under the title “Al-Mar’a al-Muslima wa welayat el-Qadha’“, it explains how the view came about that a woman is not allowed to act as a judge or in jurisdiction. This was derived from the principle that a woman is not allowed to bear witness except in some definite legal cases; however, a counter-opinion (but not the majority’s opinion amongst Muslim scholars), backed by Al-Tabari, existed as to that a woman may be entitled to act as a judge due to her capacity to issue fatwas1, considering this capacity more important for a judge’s activity which is actually based on fatwa work for issuing a judgment, rather than the capacity of being able to bear witness or not.
By the way, Muslims who pretend that a woman is not allowed to act as judge or convicting males because of the due contact to males during such a procedure neglect the fact that Muslim early scholars allowed Muslim women to witness and to even withdraw their veils to acknowledge their identity. In such cases, the public law had precedence over mere questions of private “morality”. You may wish to have a more in-depth insight by reading Anwar Ardabili, “al-anwar li-a’amaal al-abrar“, Al-Qahera, or: Halil b. Ishaq, Al-Mukhtasar, or: Mu’een Taraabulusi, “Al-hukaam fi ma yatarradad bainal-hasmain min al-ahkam“.
So, this common opinion (which you should certainly know even if you deny it in your response to the question) is derived from the fact of the restricted capacity of women to bear witness in trials.
However, it should not be forgotten that Muslim women were allowed to be witnesses in processes in some restricted cases, for example, if there was no man as a witness, or for some peculiar “women’s affairs”, like testimony given by a midwife – but a woman’s testimony was NOT accepted in penal procedures as such, in procedures related to any convictions related to “hudood”2 such as processes of zina3 ), alcohol abuse etc., neither in cases of divorce, marriage etc., which led people to the opinion that this is due to the fact, quoting a judge from Pakistan, Zahoor ul-Haq, (see report with adversary opinion on:
containing a survey written by the contested Islam critics Ibn Warraq who, however, is leaning on mere facts or quotations) saying that “if the woman’s words were sufficient in such cases, then no man would be safe”.
Now, problems resulting from this lack of legal capacity by taking advantage of this same background: in a “zina” trial, only men’s testimonies are accepted, not the ones from women. With serious consequences: For example, in prisons where women were raped by irresponsible guardians, no women would have been entitled to witness against them, the guardians being “free” to behave in any imaginable way … and no conviction would ever be issued against such men – unless there had been other male witnesses (other than guardians, of course, which is not the case). Also the fact that a woman is imprisoned should not take any right off from her leaving her as a prey to anyone … just by profiting from the fact that she is not allowed to bear witness … But the same applies to any trial where also the accused should have the right to defend himself, this is general and not only applicable to women, e.g. absence of torture, a fair trial etc.
I would be glad if you could forward this message to the American who asked you. Please inform me if this is possible.
Thank you for your comments.
23rd October 1998