An X-ray of the Ineligibility of a Woman to Serve as a Judge in Islam

By Mohammed Ibrahim Abdul

Introduction

Islam is a religious of Allah and His beloved Prophet Muhammad (S.A.W), it is obvious in the holy Qur’an that the almighty Allah in Qur’an Chapter 3: V. 19 said: ” the only deen acceptable to Allah is Islam.” Allah (S.W.A) has in Qur’an Chapter 2: V. 208 said: “O you have believed enter Islam, all of you.”

Clearly, from the above mentioned Quranic provisions, a person must have understood that the Islam is a religion of Allah. The Messenger of Allah (S.A.W) said: ” Islam is to worship Allah alone and none else, to offer prayers perfectly, to pay the zakat and to observe fast during the month of Ramadan.”

Owing to the fact that Islam is a religion of the almighty Allah and His Prophet, Islam has divine law which is the holy Qur’an. The Qur’an has defined some offences and punishments, whoever acts contrary to the teaching of Islam should bear the consequences of his act, if the punishment of the offence which a person commited is not prescribed in the Qur’an and Hadith; a person should be punished with Ta’azir.

Islam has its own legal system, the Islamic legal system provided that there must be a Judge (Kadi) who will be settling dispute between Muslims umma and punish those who commit wrong according to the book of Allah, hadith and sunnah of Prophet.

Who is Kadi in Islam

Kadi is a Muslim judge who renders decisions according to the Shariʿah (Islamic law). The Kadi’s jurisdiction theoretically includes civil as well as criminal matters. In modern states, however, Kadis generally hear only cases related to Islamic personal law and religious custom, such as those involving inheritance, pious bequests (waqf), marriage, and divorce. Originally, the Kadi’s work was restricted to nonadministrative tasks—arbitrating disputes and rendering judgments in matters brought before him. Eventually, however, he assumed the management of pious bequests; the guardianship of property for orphans, people with cognitive disabilities, and others incapable of overseeing their own interests; and the control of marriages for women without guardians. The qadi’s decision in all such matters was theoretically final, although in practice premodern Muslim polities developed mechanisms for reviewing the qadi’s verdicts.

The Kadi performs an essential function in early Muslim society.

Requirements of Kadi in Islam

In appointing a Judge in Islam, a person has to posses the following immutable
features;

a) He must be a man: this criterion covers being an adult and being a male together. It is important to say that majority of scholars maintain that a woman cannot be a judge because being a man is one of the conditions for the validity of a judgement.

b) He should be sane, this implies that he should be of sound mind, intellectually
fit, cautious of mistakes/ignorance and be intelligent.

c) He should be a freeman; this is to mean that he must not be a slave.

d) He should be a Muslim.

e) He must have good hearing ability and eyesight.

f) He should have the profound knowledge of the Rules of Law and its four major sources namely the al-Quran, the Sunnah of the Prophet S.A.W, consensus of the Jurists (ijma) and analogical Deduction (qiyas).

The second caliph, Umar is said to have been the first to appoint a Kadi to eliminate the necessity of his personally judging every dispute that arose in the community. Thereafter it was considered a religious duty for authorities to provide for the administration of justice through the appointment of Kadis.

Ineligibility of a woman to serve as a Judge in Islam

The majority of scholars are of the view that it is not permissible for a woman to be appointed as a judge, and if she is appointed, the one who appointed her is sinning, and her appointment is invalid, and her judgements carry no weight, no matter what ruling she passes.

This is the view of Imam Maliki Shafi’i, Hanbali and some of the Hanafis.

They relied on the following Quranic verses and Hadiths:

In Qur’an 4: V. 34, Allah says: “Men are the protectors and maintainers of women, because Allaah has made one of them to excel the other, and because they spend (to support them) from their means.”

So the men are the protectors and maintainers of women, in the sense that they are in charge of them. So the verse may be understood as meaning that women cannot be appointed in charge, otherwise women would be the protectors and maintainers of men, which is the opposite of what the verse says. 

Allaah says in Qur’an 2: V. 228: “but men have a degree (of responsibility) over them.”

Allaah has granted men a degree over women, and if a woman were to be appointed as judge that would contradict the degree that Allaah has given men in this verse, because in order for a Judge to justudge between two disputants, he must have a degree over them. 

It was narrated that Abu Bakrah (may Allaah be pleased with him) said: When the Messenger of Allaah (peace and blessings of Allaah be upon him) heard that the people of Persia had appointed a woman as their ruler, he said: “No people will ever prosper who appoint a woman in charge of their affairs.” Narrated by al-Bukhaari (4425). 

The fuqaha’ quoted this verse as evidence that it is not permissible to appoint a woman as a judge, because lack of prospering is a kind of harm, the causes of which must be avoided. The hadeeth is general in meaning and applies to all positions of public authority. So it is not permissible to appoint a woman, because the word “affairs” is general in meaning and includes all the public affairs of the Muslims.

Imam Al-Shawkaani (may Allaah have mercy on him) said: 

There is no stern warning greater than stating that they will never prosper, and the most important issue is to rule according to the rulings of Allaah, may He be glorified and exalted, and therefore this warning applies more emphatically to women.

Moreover, the nature of woman means that a woman should not be appointed to a position of public authority. 

The text of the Hadith reported by Bukhari in his Sahih, Abu Huraira narrated that the Prophet (peace and blessings be upon him) said,

“There are seven persons whom Allah will shade on a Day when there is no shade but His. A just ruler, a young man who grew up in the worship of Allah, a man whose heart is attached to the Masajid, two men who love each other for the sake of Allah who meet and depart from each other for the sake of Allah, a man whom a beautiful woman of high status seduces but he rejects her by saying I fear Allah, a man person who spends in charity and conceals it such that his right hand does not know what his left hand has given, and a man who remembered Allah in private and he wept.” (Agreed upon).

This Hadith is applicable to the woman through the style of Taghleeb regarding the five out of the seven categories mentioned, which have not been suspended through other Shari’a, so it applies to a young woman who grew up in the remembrance of Allah, to two women who love each other for the sake of Allah and a woman whom a man seduces, a woman who spends in charity and a woman who remembered Allah in private and she wept.

But this Taghleeb style does not apply to the just ruler, and a man whose heart is attached to the Masajid because they are both suspended through a text.

Conclusion

According Maliki school, a woman cannot serve as a Judge under Islamic law. The above mentioned verses of the holy Qur’an, Hadiths and Islamic Jurists’ views has clearly shown that a woman cannot be a Judge or ruler in Islam.

The requirements for the position of Judge (Kadi) in Islam are as follows:

1. Must be Muslim
2. Adult
3. Male of good character
4. Must be mature who possessed sound Judgement
5. Must be a free man not a slave.

The above requirements must be fulfilled for a person to be a Judge in Islam according to the Jumhur.

Mohammed Ibrahim Abdul
LL.B III, Bayero University Kano
jawawumeri@gmail.com