Refuted Misconceptions
Some people harbour certain doubts and raise questions about Islam's stance
on the woman's status as a human being. Here we tackle the more important
points of uncertainty or even scepticism.
One of these questions is: why, if Islam really regards the woman's humanity
on an equal basis with that of the man, does it give the man privilege
over the female in some dealings such as legal testimony, inheritance,
blood money, charge of the family, heading the state and other supporting
ministrations?
The distinction (if it can ever be called one) between the man and the
woman is not due to any preference by Allah, The Almighty, of the man or
the woman on any account of being nobler or closer to the Lord. As a rule,
it is piety and only piety that is the measure of ascendancy, nobility
and closeness to Allah: " Verily, the most honour
able of you in the Sight of Allah is that (believer)
who has At-Taqwa [i.e. one of the Muttaq 'n:
i.e. pious and righteous persons who fear Allah much](abstain from all
kinds of sins and evil deeds which He has forbidden), and
love Allah much
(perform all kinds of good
deeds which He has ordained)". [Surah 49:13]
The
distinctions, however, are merely conditioned by the different tasks assigned
to each of the two sexes by virtue of their natural disposition.
The Qur'anic verse known as "the indebtedness verse" in which Allah prescribes
writing debt contracts as a precautionary measure is:
"And get two witnesses out of your own men. And if there are not two men
(available),
then a man and two women, such as you agree for witnesses, so that if one
of them (two women)
errs, tile other can remind her. And the witnesses should not refuse whethey
are called on (for evidence). [
Surah 2:282]
Thus, the Qur'an makes the testimony of oman equal to the testimony of
two women. Moreover, the majority of jurisprudents establish that a woman's
testimony does not count in major crimes and in matters which do not relate
to the rule of retaliation in kind.
Yet the distinction is far from being due to any belief in a deficiency
of the woman's humanity and integrity. It is rather due to her natural
disposition and her special inclinations which may exclude her involvement
in such matters while being focused on motherhood or the household. Hence,
there is very likely to be a kind of characteristic inattention on her
part when it comes to handling these matters. For this reason, Allah commands
creditors if they want to verify the value of debt to seek the testimony
of two men or one man and two women. The Qur'an puts it unambiguously:
"
so that if one of them (two women) errs,
the other can remind her. [
Surah 2:282]
The exclusion of woman's testimony, altogether, from cases of major crimes,
and cases requiring retaliation in kind, is meant to protect women and
distance them from sites of crime and aggressions against souls, honour
and property. It is not infrequent, for instance, to see a woman closing
her eyes, or running away in panic from a scene of bloodshed; therefore
, it becomes difficult for that woman to give a reliable account of the
crime.
Nevertheless, this has also meant for the jurisprudents that a woman's
testimony counts in cases of feminine affairs such as foster relationships,
menstruation, delivery and such matters whose knowledge was confined to
women in past ages and probably still is. Yet, Ata'a-tabiei (literally
a follower a companion of one of the Prophet's Companions) establishes
that a woman's testimony on such matters does count. In addition, other
jurisprudents accept a woman's testimony in crimes that take place in female
gatherings that are not usually frequented by men, like women [
Surah 2:282] oriental
pools, wedding parties attended solely by women. and other such gatherings.
The question, however, is: if one woman kills, wounds or maims another
and the only witness is a woman, should her testimony be ruled out because
it is merely given by a woman or should men give testimony of something
they did not witness? It is more in the nature of things to accept a woman's
testimony in this case so long as she is reputed to be honest, accurate
and mindful. Commenting on the verse: " And if there
are not two men (available),
then a man and two women" the former Sheikh of Al-Azhar Mahmud Shaltut
says: The verse does not address the question of the status of the testimony.
It rather addresses the methods of verification and establishment of confidence
about the individual's rights at the moment of transaction. The verse actually
begins: "O you who believe! When you contract a debt
for a fixed period, write it down. Let a scribe write it down in justice
between you. Let not the scribe refuse to write as Allah has taught him,"
until it reaches " And get two witnesses out of your own men. And if there
are not two men (available),
then a man and two woman, so that if one of them (two
women) errs, the other can remind her. [
Surah 2:282]
Therefore the situation is one of verification and documentation of rights
and not one of judgement. Thus the verse points to the best ways of documentation
and verification by which partners in a deal can have maximum security.
This therefore does not mean that a single woman's, or a group of woman's
testimony without a man's does not count in establishing rights nor is
to be taken by a judge since the maximum required in jurisdiction is "evidence".
Along this line of thinking, jurisprudent Ibn Al-Qayyim establishes that
"evidence" in Islamic Law is more comprehensive than testimony; confirming
"evidence" is the factor in establishing rights, what makes it "evident"
and consequently what is to be considered by the judge.
The judge pronounces his verdict on the basis of decisive evidence, even
if it were a non-Muslim's testimony as long as he feels it worthy of his
trust.
This leads Sheikh Shaltut to the conclusion that when two woman's testimonies
are counted as one man's testimony, it is not because of some weakness
or flaw in her mentality which would involve, in turn, a defect in woman's
humanity.
The verse, however, was so worded as to address the norms of that time,
which are still very much the same for the majority of women. They do not
attend debt registration sessions or transactions. The fact that some women
take part in such activities does not alter the basic facts of life that
the woman's natural disposition in life such as procreation. Yet again,
the verse serves as guidance on maximum verification. In some places, the
tendency is for a woman to make transactions and witness the writing of
debts; it is the people's right to accept a woman's testimony as they accept
that of a man as long as they do this with equal confidence in both sexes"
memories.
Still, Sheikh Shaltut does not stop here; he goes on to consider a case
in which the word of men and women weigh equally: There is a stronger proof
for equality in the Qur'an's statement that the woman is just like the
man in the type of testimony known as the oath of condemnation [
An oath in which either the husband or the wife accuses his or her partner
of adultery and the only witness is one of them. (Translator's note.)]
"And
as for those who accuse their wives but have no witnesses except themselves,
let the testimony of one of them be four testimonies (i.e.
testifies four times) by Allah that he be
one of those who speak the truth. And the fifth (testimony)
(should be) invoking the Curse of Allah on
him if he be one of those who tell a lie (against
her). But it shall avert the punishment (of
stoning to death) from her, if she bears witness
four times by Allah, that he (her husband)
is telling a lie. And the fifth (testimony)
should be that the Wrath of Allah be upon her if (her
husband) speaks the truth". [
Surah 24:6- 9]
That is, four repetitions of the oath or testimony by the man concluded
by an invocation of his damnation by Allah if he is lying, countered by
and invalidated by four repetitions of the woman's counter statement, also
followed by an invocation of Allah's wrath upon her if she is lying. [
Islamic Beliefs and Code of Laws, Sheikh Shalt, p.111 - 112]
The difference between the man and the woman in their respective shares
in inheritance established by Allah's statement: "
Allah commands you as regards your children's
(inheritance); to the male, a portion equal
to that of two females. [
Surah 4:11],
is clearly due to the difference in the duties and costs that each has
to cope with by virtue of the Islamic teachings (shar'a)".
For example, if a man dies leaving a son and a daughter, the son gets married
and pays the obligatory bridal money (dower) to the bride and as soon as
they live together, he has to provide and pay for their living expenses.
On the other hand, when his sister gets married, she receives the bridal
money from her bridegroom and when they live together, the husband provides
for her without her paying a single penny, even if she is among the richest
of people. Poor or rich, her living costs are estimated in proportion to
her husband's financial ability. The Qur'an puts it thus:"
Let the rich man spend according to his means". [
Surah 65:7] To
simplify matters, if the father leaves a wealth of about 150,000 dollars,
the son would get 100,000 and the daughter would get 50,000 dollars. Then
the son pays the bridal money (dower) gives presents and furnishes a flat
which may cost at least 25,000 dollars. If the daughter gets married and
has the bridal money and the presents, she would get another 25,000. This
makes them about even.
But this is not all; the man's duties and spending increase as he provides
for his children, in some cases his ageing parents, his brothers and sisters
who have no income of their own and no one else to provide for them, and
further still his relatives who are in similar circumstances-all by virtue
of the Islamic Teachings (shar'a) and under certain conditions. For her
part, though, the woman is not commanded by the shar'a to furnish aid unless
she chooses to do so out of good manners and morals.
Nor is the distinction in any sense absolute. Sometimes the woman's share
in the inheritance is equal to that of the man's. For instance, when the
two parents inherit from their children; the Qur'an rules that: For parents,
a sixth share of inheritance to each if the deceased left children. [
Surah 4:11]
The reason in this case is that the parent's needs are often similar. If
siblings inherit from a brother who has neither parents nor children, the
Qur'an establishes that: " If the man or woman whose
inheritance is in question has left neither ascendants nor
descendants, but has left a brother or a sister, each one of them gets
a sixth; but if more than two, they share in a third". [
Surah 4:12] Thereby,
the sister by the mother gets a sixth, which is the same as the brother
by the same mother. If there are more than two siblings, they inherit a
third to be distributed equally among them. All this is to say that equality
of inheritance exists in many cases, and they are well-known to jurisprudents
and experts in these matters.
More conclusively, there are cases in which the woman gets a bigger share
than the man. For instance, if a woman dies leaving a husband, mother and
two brothers and one sister by her mother, the sister alone gets a sixth;
whereas only one sixth is given to the two brothers. Also if a woman dies
leaving a husband, a full sister and a brother by her father, the husband
gets half the inheritance and the sister the other half, whereas the half-brother
gets nothing being merely an agnate. But if the half sibling is a sister
and not a brother, she gets a sixth, as sustenance.
One more case where the woman gets more than the man follows Ibn "Abbas's
interpretation of the verse: " If no children, and
the parents are the (only)
heirs, the mother has a third". [
Surah 4:11]
This is means for Ibn Abbas that if a woman dies leaving a husband and
her two parents, the husband receives a half, the mother a third and the
father a sixth. Ibn Hazm relates this statement to Ibn "Abbas via Abdul-Raziq,
and to Ali ibn Abi Talib via of Abi "Uwana and to Mu'adh ibn Jabal who
were Companions of the Prophet (blessings and peace be upon him), known
also as experts on such matters. Ibn Hazim relates it also to Shuraih and
to Dawud Al-Zahiry, among the jurisprudents, and he quotes the companion
Ibn Mas'ud's axiom on the matter: "Allah would not like to see me prefer
a father to a mother." Other authorities who concurred are Companions such
as `Umar, `Uthman, and Zaid ibn Thabit. From their followers, there are Al-Hasan, Ibn Sirin and
Al-Nakh'i. Among the jurisprudents, there are Abu Hanifa, Malik and Al-Shafi, may Allah be pleased with them all.
There is not a single well-authenticated statement by the Prophet (blessings
and peace be upon him), nor any consensus of religious authorities (Ijm,')
to establish that the blood money paid for the killing of a woman is half
the sum paid for the killing of a man. There are two Hadiths (prophetic
traditions), neither perfectly authenticated, that address the question.
The best one on terms of authentication is that narrated Al-Nisa"i and Al-Daraqatny, which still suffers a time gap in the chain of transmitters
up to the Prophet (blessings and peace be upon him). Statements related
to the Companions suffer in the same manner. What remains then is the only
well-authenticated tradition on the subject "for a soul, a hundred camels."
The general agreement of authorities that make the value of the blood money
paid for the killing of a woman half that for the killing of a man falls
short of a consensus. Ibn `UIayya and Al-Asam, two scholars from the high
order of jurisprudents (fuquh," as-salaf) make the value of the blood money
the same for both men and women. This opinion is in agreement with the
generality of reference to "believer" and `soul" in the Qur'an and the
Hadith. If we opt for this opinion today, we are not to blame since, in
addition to the previous reason, the legal opinion (fatwa) could change
with the age and environment but the new legal opinion is not in conflict
with the relevant textual statements nor with the general objectives of
Islamic Teachings. Under the subtitle of "Blood Money, the Same for Men
and Women," Sheikh Shaltut writes:
Woman's humanity stemming from the same origin as that of the man, her
blood is the same as his, he being from her and she from him and equal
retaliation in kind being the rule common to both cases of homicide and
hell and damnation being the other wordly punishment for the killing of
either man or woman, so the rule of the verse applies to the accidental
homicide of either a man or a woman.
Given that our primary frame of reference is the Qur'an, we find that its
statement is general and does not privilege the man with any special status:
"and whosoever kills a believer by mistake (it
is ordained that) he must set free a believing
slave and a compensation (blood-money i.e.
Diya) be given to the deceased's family". [Surah 4:92]
It is true that the scholars have differed over the amount of blood money,
whether it is the same or double in the man's case. Al-Razi tells us in
his At-Tafsr Al-Kabr that the majority of jurisprudents double the sum
in cases of male homicide. He adds that Al-Asam and Ibn `Ulayya make the
sum paid the same. The majority cite the ruling of the Companions `Ali, `Umar and Ibn Mas'ud ruling on this matter, as well as the rules of inheritance
and legal testimony in which the woman's inheritance and testimony equals
only half those of the man. Al-Asam, however, cites the verse: and whosoever
kills a believer by mistake [Surah 4:92]
All agree this verse addresses both men and women, therefore the ruling
on the sum paid is the same.
Allah assigns guardianship to the man by virtue of the Qur'anic verse:
" Men are the protectors and maintainers of women, because Allah has made
the one of them to excel the other and because they spend (to
support them) from their means". [
Surah 4:34]
There are two reasons for this, one has to do with a natural quality and
the other relates to something acquired. First, Allah has provided the
man with a quality of greater strength whereas he has equipped the woman
with a lighter and usually more delicate physique. Secondly, Allah has
delegated the man to be the family provider. If the family collapses, he
must bear the brunt of the collapse. This responsibility naturally entails
deference and support.
Abu Hanfa establishes that women are not forbidden from occupying positions
in the judiciary system in matters that are of their sphere of testimony,
that is in non-criminal affairs. At-Tabari and Ibn Hazim, on the other
hand, establish the authority of their judgement of criminal cases, as
well as financial and other cases. Yet, that this is not prohibited does
not give it the status of incumbency or necessity. It is a possibility
that can be adjusted according to different circumstances and interests:
the interest of the family, the interest of the community and, above all,
the interest of Islam. Thus, the possibility may lead to a situation where
some distinguished women at a certain point of their age are chosen for
judgeship in certain matters and under certain circumstances.
On the other hand, her ineligibility under the Islamic teaching (shar'a)
to hold the caliphate or head the state is owing to the great burdens of
such a huge responsibility which in most cases outweigh the capacity of
the woman (and the man) and conflicts with the natural disposition of the
woman as mother. This does not exhaust all possibilities since we are aware
that some women could be even more capable than some men. One such example
is the Queen of Sheba whose story is told by Allah in the Qur'an. She led
her nation to happiness and well-being in this and the other life and submitted
herself with Prophet Solomon to Allah, Controller of the Worlds. Nevertheless,
rules are not formed on the basis of rare occurrence but on the frequency
of it. Thus the scholars establish that generally "the rare does not constitute
a rule." But for the woman to be a manager, dean, director, member of parliament,
minister, etc., is all very well so long as it weighs the interests. All
these questions are dealt with in detail in my book Contemporary Legal
Opinions (Fatawa Mu'aserah).
