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Gender Equity in Islam
By Jamal Badawi
CHAPTER FOUR:
THE LEGAL AND POLITICAL ASPECT

EQUALITY BEFORE THE LAW

1. Both genders are entitled to equality before the law and courts of law. Justice is genderless. According to the Quran, men and women receive the same punishment for crimes such as theft (5:38), fornication (24:2) 23 murder and injury (5:45). Women do possess an independent legal entity in financial and other matters. One legal issue is widely misunderstood: testimony. A common but erroneous belief is that as a "rule," the worth of women's testimony is one half of men's testimony. A survey of all passages in the Quran relating to testimony does not substantiate this claimed "rule."

TESTIMONY

Most Quranic references to testimony (witness) do not make any reference to gender. Some references fully equate the testimony of males and females.

    And for those who launch a charge against their spouses and have (in support) no evidence but their own, their solitary evidence(can be received) if they bear witness four times (with an oath) by Allah that they are solemnly telling the truth; And the fifth (oath) (should be) that they solemnly invoke the curse of Allah on themselves if they tell a lie. But it would avert the punishment from the wife if she bears witness four times (with an oath) by Allah that (her husband) is telling a lie; And the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth. (Quran 24:6-9)

One reference in the Quran distinguishes between the witness of a male and a female. It is useful to quote this reference and explain it in its own context and in the context of other Quranic references to testimony:

    O you who believe! When you deal with each other in transactions involving future obligations in a fixed period of time, reduce them to writing. Let a scribe write down faithfully as between the parties: let not the scribe refuse to write: as Allah has taught him, so let him write. Let him who incurs the liability dictate, but let him fear his Lord, Allah, and not diminish aught of what he owes. If the party liable is mentally deficient, or weak, or unable himself to dictate, let his guardian dictate faithfully. And get two witnesses out of your own men, and if there are not two men, then a man and two women, such as you choose for witnesses so that if one of them errs, the other can remind her.

    The witnesses should not refuse when they are called on (for evidence). Disdain not to reduce to writing (your contract) for a future period, whether it be small or big: it is more just in the sight of Allah, more suitable as evidence, and more convenient to prevent doubts among yourselves, but if it be a transaction which you carry out on the spot among yourselves, there is no blame on you if you reduce it not to writing. But take witnesses whenever you make a commercial contract; and let neither scribe nor witness suffer harm. If you do (such harm), it would be wickedness in you. So fear Allah; for it is Allah that teaches you. And Allah is well acquainted with all things. (Quran 2:282)

A few comments on this text are essential in order to prevent common misinterpretations:

a. It cannot be used as an argument that there is a general rule in the Quran that the worth of a female's witness is only half the male's. This presumed "rule" is voided by the above reference (24:6-9), which explicitly equates the testimony of both genders on the issue at hand.

b. The context of this passage (verse, or ayah) relates to testimony on financial transactions, which are often complex and laden with business jargon. The passage does not a make blanket generalization that would otherwise contradict 24:6-9, cited above.

c. The reason for variations in the number of male and female witnesses required is given in the same passage. No reference is made to the inferiority or superiority of one gender's witness or the other's. The only reason given is to corroborate the female's witness and prevent unintended errors in the perception of the business deal. The Arabic term used in this passage, tadhilla, literally means "loses the way," "gets confused," or "errs." But are females the only gender that may err and need corroboration of their testimony? Definitely not, and that is why the general rule of testimony in Islamic law is to have two witnesses, even when they are both male.

One possible interpretation of the requirements related to this particular type of testimony is that in numerous societies, past and present, women generally may not be heavily involved with and experienced in business transactions. As such, they may not be completely cognizant of what is involved. Therefore, corroboration of a woman's testimony by another woman who may be present ascertains accuracy and, hence, justice. It would be unreasonable to interpret this requirement as a reflection on the worth of women's testimony, as it is the only exception discerned from the text of the Quran. This may be one reason why a great scholar like Al-Tabari could not find any evidence from any primary text (Quran or hadith) to exclude women from something more important than testimony: being herself a judge who hears and evaluates the testimony of others.

d. It must be added that unlike pure acts of worship, which must be observed exactly as taught by the Prophet (P), testimony is a means to an end, ascertaining justice as a major objective of Islamic law. Therefore, it is the duty of a fair judge to be guided by this objective when assessing the worth and credibility of a given testimony, regardless of the gender of the witness. A witness of a female graduate of a business school is certainly far more worthy than the witness of an illiterate person with no business education or experience.

PARTICIPATION IN SOCIAL AND POLITICAL LIFE

2. The general rule in social and political life is participation and collaboration of males and females in public affairs.

    The believers, men and women, are protectors, one of another: they enjoin what is just and forbid what is evil: they observe regular prayers, practice regular charity, and obey Allah and His apostle. On them will Allah pour His mercy: for Allah is Exalted in power, Wise. (Quran 9:7)

3. There is sufficient historical evidence of participation by Muslim women in the choice of rulers, in public issues, in lawmaking, in administrative positions, in scholarship and teaching, and even in the battlefield. Such involvement in social and political affairs was conducted without the participants' losing sight of the complementary priorities of both genders and without violating Islamic guidelines of modesty and virtue.

WOMEN IN LEADERSHIP POSITIONS

There is no text in the Quran or Sunnah that precludes women from any position of leadership, except in leading prayer (however, women may lead other women in prayer), due to the format of prayer, as explained earlier. There are exceptions even to this general rule, as explained later in this chapter. Another common question relates to the eligibility of Muslim women to be heads of state.

There is no evidence from the Quran to preclude women from headship of state. Some may argue that according to the Qurtan (4:34), men are the protectors and maintainers of women. Such a leadership position (responsibility, or qiwamah) for men in the family unit implies their exclusive leadership in political life as well. This analogy, however, is far from conclusive. Qiwamah deals with the particularity of family life and the need for financial arrangements, role differentiation, and complementarity of the roles of husband and wife. These particularities are not necessarily the same as the headship of state, even if some elements may be similar. Therefore, a Quranically based argument to exclude women from the headship of state is neither sound nor convincing. Most arguments for exclusion, however, are based on the following hadith, narrated by Abu Bakrah:

During the battle of Al-Jamal (in which Aisha, the Prophet's widow, led an army in opposition to Ali, the fourth Caliph), Allah benefitted me with a word. When the Prophet heard the news that the people of Persia had made the daughter of Khosrau their queen (ruler), he said, "Never will such a nation succeed as makes a woman their ruler."24

While this hadith has been commonly interpreted to exclude women from the headship of state, other scholars do not agree with that interpretation. The Persian rulers at the time of the Prophet (P) showed enmity toward the Prophet (P) and toward his messenger to them. The Prophet's response to this news may have been a statement about the impending doom of that unjust empire, which did take place later, and not about the issue of gender as it relates to headship of the state in itself. Z. Al-Qasimi argues that one of the rules of interpretation known to Muslim scholars is that there are cases in which the determining factor in interpretation is the specificity of the occasion (of the hadith) and not the generality of its wording. Even if the generality of its wording is to be accepted, that does not necessarily mean that a general rule is applicable, categorically, to any situation. As such, the hadith is not conclusive evidence of categorical exclusion.25

Some argue that since women are excluded from leading the prayer for a mixed gathering of men and women, they should be excluded from leading the state as well. This argument, however, overlooks two issues: (1) Leading the prayer is a purely religious act and, given the format of Muslim prayer and its nature, it is not suitable for women to lead a mixed congregation. This point was discussed earlier. Leading the state, however, is not a "purely" religious act but a religiously based political act. Exclusion of women in one instance does not necessarily imply their exclusion in another.26

(2) Even the matter of whether women may lead prayer is not without exception. Prophet Muhammad (P) asked a woman by the name of Umm Waraqah to lead her household in prayer, which included a young girl, a young boy, and a mu'azzin (caller to prayer—who is always a male).27

Al-Qasimi notes that the famous jurist, Abu-Ya'la Al-Farra' (known for his writings on the political system of Islam), did not include among the qualifications of the imam (head of state) being a male.
28 It should be noted, however, that the head of state in Islam is not a ceremonial head. He leads public prayers on some occasions and constantly travels and negotiates with officials of other states (who generally are men). He may be involved in confidential meetings with them. Such heavy and secluded involvement of women with men and its necessary format may not be consistent with Islamic guidelines related to the proper interaction between the genders and to the priority of feminine functions at home and their value to society.

Furthermore, the conceptual and philosophical background of the critics of this limited exclusion is that of individualism, ego satisfaction, and the rejection of the validity of divine guidance in favor of other man-made philosophies, values or "isms." The ultimate objective of a Muslim man or woman, however, is to selflessly serve Allah and the Ummah in whatever appropriate capacity. In the incident of Al-Hudaybiyah, Umm Salamah, a wife of the Prophet (P), played a role equal to what we would refer to today as "chief advisor of the head of state."

Next: the Conclusion: The Ideal and the Reality


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