{God has promised the believers, both men and women, Gardens graced with flowing streams where they will remain; good, peaceful homes in Gardens of lasting bliss; and – greatest of all – God’s good pleasure. That is the supreme triumph.} [9:72]
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| The forgotten women scholars of islam (see here) |
A Woman's testimony is considered equal to a Man's
A woman's testimony is equal to that of a man's in Islamic Law because she is considered of equal status, as the Prophet (peace be upon him) explicitly states:
“All people are equal, as equal as the tooth of a comb. There is no claim of merit of an Arab over a non-Arab, or a white or a black person, or a male over a female. Only God-fearing people merit a preference with God” [Ahmad]
Perhaps the clearest example of equality in testimony is in the case of imprecation (li'an); if an accusation of adultery is made by one spouse, the others denial of it is considered equal.
{As for those who accuse their own wives of adultery, but have no other witnesses, let each one four times call God to witness that he is telling the truth, and, the fifth time, call God to reject him if he is lying; punishment shall be averted from his wife if she in turn four times calls God to witness that her husband is lying and, the fifth time, calls God to reject her if he is telling the truth.} [24:6]
There are many other instances in which the legal capacity of a woman is explicitly stated as equal to that of a man's, which will be looked at further below, however the words from the authoritative work Al Hidaya by al Marghinani (d. 1197 CE) on the subject of marriage are worthy of mention:
"We maintain that she is a freewoman... She is, therefore, just like a young man, and her capacity for being free with respect to marriage is just like her freedom to undertake transactions in her wealth."
If not two men, one man and two women
The only place in the Qur'an where there is a difference in the number of witnesses due to gender is in the verse:
{You who believe, when you contract a debt for a stated term, put it down in writing: have a scribe write it down justly between you... Call in two men as witnesses. If two men are not there, then call one man and two women out of those you approve as witnesses, so that if one of the two women should forget the other can remind her...} [2:282]
The underlying cause (i'llah) for any valid transaction in Islam is agreement, specifically to business contracts by an offer for a commodity and its acceptance. As such, to avoid arguments agreements should be written and if unable then witnessed, which is the directive of this verse. The number of witnesses and gender are only specific to witnessing of a business contract, which in no way implies a deficiency to a woman's witnessing generally. Rather it is peculiar to the case at hand.
Forgetfulness
One possible interpretation of the verse is that the reason for having two women witnesses is that women are forgetful. This could be either by their nature or the social circumstances, although classical scholar have gone with the latter.
Some argue that there is something inherent in women that is forgetful by their nature, for example they are less particular about details then men and are therefore more inclined to forget them. This understanding does exist as folk lore, although would need to be corroborated by scientific research, which may exist or not? However, I would argue that if there is some inherent 'forgetfulness' particular to women then why are women allowed as witnesses at all? There is no reason why the second woman would not also forget if this were true.
The classical works identify the witnessing here to be to do with outwardly public matters and therefore the reasons are entirely social. The great contemporary scholar al Zuhayli (b. 1932 CE) argues that the additional woman is purely for social practicalities (see here). The second witness is there to corroborate the story of the first, this also applies to the male witnesses; hence why two are needed. In Islamic society men and women have limited contact and would therefore not be as readily able to remind a witness of the opposite gender. Extending this, the respected scholar M I H Pirzada (b. 1946 CE) in his book The Status of Women in Islam argues that since modern scientific research has proven: "women are characterised by the tendency to be more easily discouraged by failure than men" (Encyclopedia Britannica, Status of women) then in the intimidating situation of a contract dispute the other woman is there to console and support her should she forget out of fear.
Familiarity with the subject
In Islamic Law, studying the law of business (fiqh al buyu') is obligatory (wajib) on all males who have dependents, whereas it is not so with women. Since laws are based on generalities, therefore, men are given precedence in this one specific case due to the assumption that they are more familiar with the subject matter. If the the underlying cause (i'llah) is familiarity with the subject as the foremost scholar al Buti (b. 1929 CE) argues then a different subject more familiar with women, such as child birth etc, would give them precedence (see here).
Speculating somewhat, we may deduce that as a Shafi'i scholar this may highlight an underlying cause which differs from the Hanafi's. As such on the above reasoning the ratio of witnesses is general and maybe overruled by exceptions. For example, a woman with a PhD in economics or a degree in business etc would be proof of her familiarity with business contracts, in the same way that a male gynecologist would also be proof of his familiarity. It certainly stresses that expert witnesses may be of any gender and the rules are merely general based on customs for those that witnessed the event only.
Capital punishment - Hadd
Scholars have extended the ratio of witnessing in business contracts to that of criminal law and other outward public law, since this is understood as the effective cause (i'lla).
The name sake of the Hanafi School, Abu Hanifa (d. 767 CE) in Kitab al Athar informed his student that his teacher Nakha'i (d. 726 CE) said: "testimony of women along with men is valid in everything apart from hadd punishments." An understanding of Islamic Criminal Law is important here to understand what is meant.
In Islamic Law there are two types of punishments hadd and ta'zir. Hadd linguistically means restraint and prevention. Technically it is corporal or capital punishments for either: murder, theft, adultery, unsubstantiated accusation of adultery, drunkenness, rebellion and brigandage. Hadd marks the uppermost limit of punishments in these crimes and has very strict conditions that must be met. The punishments are severe and it is understood to invoke fear, however its application is with mercy because the intention is not to punish but to prevent. The hadith narrated by the companion ibn Abbas from the Prophet (peace be upon him) elucidates:
"Prevent the [application of] hadd punishments because of ambiguity."
It is obligatory on the judge to look for the slightest doubt and lessen the punishment to that of ta'zir. Ta'zir means disgrace and is a discretionary punishment enacted by the judge or state for those found guilty of a crime that does not fulfil the requirements of hadd or is not a crime punishable by hadd. The reason therefore that a woman's testimony is not taken into account for hadd punishments is because only men are mentioned as witnesses from the texts of the Qur'an. Whilst it doesn't prohibit women and would therefore seem reasonable to make the analogy with witnessing in business contracts, there is an element of doubt and so because doubt lifts hadd, only men are taken in these cases. Hadd, however is not proof of guilt so a crime may be witnessed by only women for which the judge finds the defendant guilty and applies ta'zir, just not hadd.
The upshot of the above, is that it decreases the chances of someone having the severest penalties, but justice is still being served.
Women as witnesses by themselves
The ratio of one man to two women is also generally applied to all other matters of public affairs, such as financial claims, divorce, marriage and emancipation etc. However women as independent witnesses of men is normally only accepted in all personal matters that are not accessible to men, like birth and the anatomical defects of women etc. The reason for the difference made between public and private matters is purely social and for the protection of women, as such one upright women in these private matters is sufficient as a witness according to Abu Hanifa and Ahmed ibn Hanbal (d. 855 CE) - namesake of the Hanbali School.
Women as Judges
Perhaps most indicative of debate amongst classical scholarship relative to a woman's testimony is that women can serve as judges. Generally speaking Maliki, Shaf'i and Hanbali Scholars do not permit women judges owing to analogy with a hadith alluding to women not being permitted to be head of state, although its application generally is debated (see here). In the Hanafi School women serve as judges in all cases they can give testimony in, i.e. not criminal law involving hadd punishments. This is in keeping with Islamic metaphysics; woman viewed as primarily of the gentle characteristics would then seem 'unnatural' holding the position of something so strikingly severe as adminitering capital punishment (see here). Scholars have been more liberal, although of the minority, for example the primary Quranic exegete Tabari (d. 923 CE) argues that since there is no disagreement at all that a woman may be a mufti (juristic expert that defines the law and is advisor to the judge) absolutely, then by analogy she may be the lesser station of judge (qadi) absolutely, since there is no explicit text to suggest otherwise.
Female Judges are not common in British History, the first being Rose Heilbron in 1957, and currently only 23% of judges are women although this is very low compared to the rest of Europe (see here). Likewise the only judge installed officially that is well known in the Islamic World is Thamal Al-Qahramanah (d. 937). Interestingly women's involvement in law in the Muslim World is the reverse of Europe's; most involvement was at the dawn of Islam, which has steadily declined over time as Dr Akram An-Nadwi of Oxford University has proven. Whilst it is indeed rare in Islamic history, women judges are not without precedent and so re-engagement by women in Islamic Law is by no means prohibited and given that it is a communal obligation (fard kifayyah) to have female legal experts, it should be actively encouraged.
Conclusion
English Law like Islamic Law has two courts; the Criminal and the Civil. The Criminal is for crimes against the public, has severer punishments, is very public with a jury etc and requires strong evidence: 'beyond reasonable doubt.' The Civil courts are for disagreements between people, has lesser punishments, is private and merely requires a judgement in favour of one party over the other. Islamic Law is not vastly different here except that in public cases women are required to give evidence accompanied by a man for protection and another women for support, mirroring Islamic society and the overarching concept of protecting a woman's dignity and honour. However, in private matters away from the public's beady eye, the woman is safe and secure and is thus able to give evidence independently. Whilst Islamic Law does differ to modern English Law in making any distinction between genders, it is clear that this is not born out of injustice or the belief that women are inferior. In fact the only people that think this are simply ignorant or have prejudices that say more about their own psyche than anything at all to do with Islamic Law!
The above gives a broad view of witnesses in Islamic Law, which presumes a traditional Islamic society. This is a complex field far beyond my or most people's capabilities, however the question arises whether the same conclusions drawn by classical scholarship are applicable to a modern society like Britain? There is much scope for debate since the argument is based on analogical reasoning (qiyas) rather than a clear text (nass). Qiyas is a mode of independent legal reasoning (ijtihad) and therefore may be overruled by legal preference (istihsan) should the resulting analogy prove unfair or unjust. The majority of scholars have extended the number of witnesses described in 2:282 to all matters of public affairs accessible to men (thus assumed less accessible by women), although this is a general trend and there is scope for exceptions in a particular case should justice not be served. Whilst the argument for abstaining to use a women's testimony in hadd punishment is considered sound and agreed upon, other than this may be in need of re-evaluation. Speculating yet further, the verse 2:282 may not necessarily be obligatory as it appears in the form of recommendation as the reformer ibn Taymiyyah (d. 1328) argues. Further expert investigation would be most interesting, but alas is beyond this post.
And God knows best
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