Encyclopedia of Contemporary Jurisprudence

Women's Judgeship

Abstract Women's Judgeship (Judgement by women) is one of the challenging discussions in Islamic Fiqh, especially in the contemporary era, which has been re-examined due to the expansion of women's social presence. In Imami Fiqh, the famous view (Mashhur) is that judgeship is conditional upon "maleness" (dhukurat), and women lack the competence to assume this position; however, contrary to this opinion, a non-famous view has emerged which, by critiquing the arguments of the famous view, considers women's judgeship permissible. The present article explains the arguments and reasoning of the two main perspectives regarding the issue of women's judgeship. The current examination shows that the difference of opinion on this issue is rooted in differences in the interpretation of religious texts (the Book and Sunnah) as well as differences in Usuli foundations.

In Fiqh texts, conditions such as Puberty, sanity, faith, justice (adalah), ijtihad, and being male are mentioned for a judge. Historical examination indicates that the condition of maleness was raised in Sunni Fiqh from the beginning, but in Imami Fiqh, during the early periods, it was not explicitly stated, and the emphasis was mostly on ijtihad and jurisprudence (faqahat). Sheikh Tusi is considered the first Imami jurist to explicitly raise the condition of being male, and after him, many jurists accepted this condition and even claimed consensus (Ijma) on it. However, in some early Fiqh works such as those of Abu al-Salah Halabi and Ibn Idris, the condition of maleness is not mentioned, and this very fact has provided grounds for doubting the realization of consensus.

The famous view, which restricts judgeship to men, has built its argument on a foundation of transmitted (naqli) proofs. This view, by citing verses such as the Verse of Qawwamun (Nisa: 34), the Verse of Degree (Baqarah: 228), and the Verse of Tabarruj (Ahzab: 33), attempts to depict a broad scope for men's guardianship (wilayah) and management of social affairs, viewing women's presence in positions like judgeship as conflicting with these verses. Alongside the Quran, narrations such as the Sahih of Abu Khadijah, in which the word "man" (rajul) is used for a judge, narrations denying prosperity to a nation governed by a woman, and narrations regarding the deficiency of women's intellects are considered other argumentative examples of this view. Invoking the historical practice (Seerah) of Muslims regarding the non-appointment of women to judgeship and the claim of Consensus among later jurists complete the argumentative structure of the famous opinion.

In contrast, the non-famous view, by offering a different reading of the same texts, has reached an opposing conclusion. This view challenges the arguments of the famous opinion primarily on two levels: the chain of transmission (sanad) and the signification (dalalah). Regarding signification, it is argued that the cited verses, such as the Verse of Qawwamun and the Verse of Degree, are specific to family relationships and cannot be generalized to the realm of judgeship and social management. Also, the mention of the word "man" (rajul) in narrations like the Sahih of Abu Khadijah is considered to be due to prevalence (ghalaba) and expressing the common instance in that era, not stating a devotional (ta'abbudi) condition. From the perspective of the chain of transmission, narrations such as the Prophet's (PBUH) will to Imam Ali (AS) and the narration "A people will never prosper..." are considered weak or lacking sufficient validity. Furthermore, the claim of consensus is also questioned due to the existence of opponents among early and later jurists, as well as its nature as a documented consensus (Ijma Madraki). After critiquing the arguments for prohibition, this group concludes the permissibility of women's judgeship by invoking the "Principle of Permissibility" (Asalah al-Ibahah) as well as the generality of evidence that limits the judge's conditions to justice and ijtihad without restricting it to gender.

Explication of the Issue

The impermissibility of women assuming the position of judgeship is one of the discussions that has been reviewed in the contemporary era due to social developments and the increasing presence of women in various fields. In the famous Fiqh view, conditions such as Puberty, sanity, faith, justice, ijtihad, and maleness are mentioned for a judge; however, the condition of "maleness" has been criticized in contemporary views. This reporting article, with a descriptive approach, explains the various Fiqh views in this field, the arguments of the proponents of each view, and the critiques leveled against them.

Judgeship has been defined as judging between people to resolve disputes among them under certain conditions,[1] which is granted to a person possessing the competence to issue fatwas in the details of Sharia laws for the purpose of proving rights and fully delivering them to the rightful owner.[2] It has been claimed that the condition of being male for a judge was raised from the beginning in Sunni Fiqh alongside conditions such as puberty, sanity, and knowledge; but in Imami Fiqh, in the early periods, due to access to the Infallible (AS) and their deputies, this condition was not explicitly raised, and the focus was on conditions such as ijtihad and jurisprudence. Sheikh Tusi is known as the first Shia jurist to address the condition of maleness.[3] In the book "Al-Khilaf", he considered the condition of being male necessary for a judge,[4] and in the book "Al-Mabsut", he considered the stipulation of masculinity (rajuliyyah) to be the more correct view.[5] After Sheikh Tusi, numerous jurists mentioned the condition of maleness in their books, and some also considered it a matter of consensus.[6] For example, Shahid Thani considered this condition a "point of agreement",[7] and Sahib Jawahir counted it as "without dispute";[8]

Despite the claim of consensus on the condition of maleness in judgeship, in some early Fiqh texts such as "Al-Kafi fi al-Fiqh" by Abu al-Salah Halabi and "Al-Sara'ir" by Ibn Idris, this condition is not listed among the judge's conditions.[9] Mohammad Soroosh Mahallati has inferred from these texts that although they used expressions such as the delegation of judgeship to jurists in the occultation era[10] and invoked the narration "Look to a man...",[11] there is no trace of the condition of masculinity in their works.[12] Jurists such as Muqaddas Ardabili have also considered the general prohibition of women's judgeship to be problematic.[13] Mirza-ye Qomi, in his objection to this condition, believes that the reasons mentioned for the condition of maleness, such as women's inability to appear and be visible in society or the lack of attainment of discernment and precision in them, are not common to all women.[14]

In any case, the examination of the history of this ruling in Shia Fiqh indicates the formation of two views within it: the famous view which considers judgeship conditional upon being male, and the non-famous view which does not accept this condition and deems women's judgeship permissible.

Impermissibility of Women's Judgeship

The famous Imami jurists who advocate the impermissibility of women's judgeship have invoked arguments from the Quran, Sunnah, Consensus, and rational proof.

Quranic Verses

Verse 34 of Surah An-Nisa (Verse of Qawwamun) A number of exegetes and jurists believe that Verse 34 of Surah An-Nisa indicates the guardianship (qaymumiyyah) and general authority (wilayah) of men over women, which includes positions such as government and judgeship. The author of Majma' al-Bayan considers this guardianship in an absolute sense to mean men's dominance over women in management, discipline, and education, which stems from men's superiority in knowledge, intellect, and judgment, as well as the duty of providing financial support.[15] According to Allameh Tabatabai, "Qawwam" means guardian/maintainer, and according to this verse, attending to women's affairs is the responsibility of men. The reason for this status (qawwamiyyah) is that men are superior to women in matters such as reasoning power and the ability to endure hardships, whereas women's life is an emotional life based on tenderness of heart and delicacy. In Allameh's view, this reason generalizes men's guardianship from the family environment to other areas of social life as well; consequently, the gender of men acts as the guardian and maintainer of women not only in the home environment and marital life but this guardianship is also evident in macro-social arenas, and for this reason, men are prioritized over women in the matter of governance and judgeship.[16]

Verse 228 of Surah Al-Baqarah (Verse of Degree) It has been argued regarding Verse 228 of Surah Al-Baqarah that the allocation of a degree of superiority of men over women is solely because they possess a greater share of intellect, judgment, and management compared to women. For this reason, the matter of disciplining and divorcing the wife has been placed in the man's authority. Consequently, the verse implies that men possess a higher degree of intellect and perfection valid for assuming judgeship and government, while women lack it.[17]

Verse 33 of Surah Al-Ahzab (Verse of Tabarruj) A group of jurists have inferred from Verse 33 of Surah Al-Ahzab that since assuming the office of judgment necessitates leaving the house and being present in public gatherings, and the verse commands women to stay in their homes, therefore women's judgeship is not permissible.[18]

Narrations (Riwayat)

Sahih of Abu Khadijah: Some jurists, citing the Sahih of Abu Khadijah ("Look to a man among you..."),[19] which was issued in describing the characteristics of a judge, have argued that the Imam's (AS) explicit use of the word "man" (rajul) in this narration indicates the condition of being male for a judge.[20]

The Prophet's (PBUH) advice to Imam Ali (AS): Sheikh Sadooq narrates a hadith in which the Prophet (PBUH), addressing Imam Ali (AS), enumerates matters that are not obligatory for women, and at the end of it says: "She shall not assume judgeship."[21] This sentence has been interpreted as an explicit prohibition of women's judgeship.[22]

The narration "A people will never prosper...": Some jurists, citing this narration from the Prophet (PBUH) ("A people who entrust their affairs to a woman will never prosper"),[23] have argued for the negation of women's guardianship (wilayah) and government, and consequently their judgeship.[24]

Narrations regarding the deficiency of intellect and prohibition of consulting women: In some narrations, including a sermon by Imam Ali (AS) after the Battle of Jamal, reference is made to the deficiency of women's intellect, faith, and share (inheritance).[25] Or in other narrations, consulting with women is forbidden.[26] In the margin of these narrations, it is said that the reasoning in them includes all women, and women with these descriptions will not have the competence for government and judgeship.[27] It is also argued that when women's opinion is considered weak in consultation, a fortiori they do not have the competence to be delegated the position of judgeship; because judgeship requires strong and correct judgment.[28]

The Seerah (Practice) of Muslims

Among the arguments raised for the impermissibility of women's judgeship is the practical Seerah of Muslims from the time of the Prophet (PBUH) until now. Based on this argument, it is stated that despite the existence of learned and wise women throughout Islamic history, a woman has never been appointed to the position of government or judgeship. This non-appointment was not accidental, but rather based on the method of the Prophet (PBUH) and indicative of the incompatibility of this matter with the spirit of Islam.[29]

Principle of Non-Wilayah

Some jurists have invoked the Principle of Non-Wilayah (Absence of Guardianship) for the impermissibility of women's judgeship. Based on this premise, judgeship is one of the functions of Wilayah and assuming it requires specific permission from the Infallible (AS), and since the word "man" (rajul) is used in the narrations of appointing a judge, therefore in the case of women where there is doubt, reference is made to the principle of Non-Wilayah, and the permissibility of judgeship is not established for them.[30]

Consensus (Ijma)

It has been stated that the most major argument advanced by later jurists for the impermissibility of women's judgeship is Consensus.[31] Sheikh Ansari also believes that if the consensus is undermined, the condition of being male will be negated.[32]

Permissibility of Women's Judgeship

In contrast to the famous Shia jurists who advocate the impermissibility of women's judgeship, a number of jurists have criticized the famous arguments with a different approach. The main arguments of the second view are negative in nature and have been entered as a critique of the arguments of the first view in order to pave the way for the application of the Principle of Permissibility (Asalah al-Ibahah) regarding women's judgeship. For example, it is stated that based on the Principle of Permissibility, as long as there is no decisive proof for the prohibition of a matter, the principle is its permissibility and lawfulness. Among them, Nematollah Salehi Najafabadi uses this rule to prove the permissibility of women's judgeship. After examining the verses, narrations, and consensus that have been raised as evidence for the condition of the judge's maleness and objecting to them, he says: "Since there is no acceptable proof for the prohibition of judgeship for ladies, by the rule of the Principle of Permissibility (Asalah al-Jawaz), which is applicable in all affairs, it must be said: Ladies who possess the conditions of judgment exceeding men or equal to them can assume the position of judgment, and the ruling they issue will be legitimate and binding."[33]

In the following, we state some of these negative arguments which are in the position of critiquing the arguments of the first view.

Critique of the Argument Based on the Verse "Men are the Protectors and Maintainers of Women"

Regarding Verse 34 of Surah An-Nisa, it is stated that the context of the verse and the rulings mentioned after the phrase "Men are Qawwamun", such as Nushuz (recalcitrance) and spending (maintenance), clearly show that the subject of the verse is family relationships and the man's guardianship in the institution of the family, and it does not generalize to man's superiority and sovereignty over women in social relations.[34] According to Morteza Motahhari, the reason for man's guardianship over woman is not the superiority of man over woman, otherwise the verse would have said: "Allah has preferred men over women"; rather, from the expression present in the noble verse, this point is inferred that the superiority between man and woman is reciprocal, and due to the superiorities that the man collectively has over the woman, guardianship specifically in the family environment has been entrusted to him.[35] Motahhari emphasizes that considering the two reasons mentioned in the verse; namely, the superiority of some over others and the financial spending that men undertake in the home environment (bima anfaqu min amwalihim), consequently the verse is specific to family issues and does not generalize to other than that, and one cannot infer from it the lack of woman's guardianship in political and social issues and the issue of judgeship, nor believe that in absolute affairs of life, women do not have the right of guardianship over men and rising to their affairs.[36]

Critique of the Argument Based on the Verse "Men Have a Degree Over Them"

Regarding Verse 228 of Surah Al-Baqarah, it is also stated that this verse is about Revocable Divorce, and the "degree" and superiority of the man refers to his right of return (ruju') in divorce and cannot be a proof for the prohibition of women's judgeship in courts.[37] In the belief of some jurists, the content of the verse is also a particular affirmative proposition (mujiba juz'iyya), and its truth is realized with the existence of men's superiority in specific cases, such as inheritance, divorce, jihad, and similar cases. This superiority is not dependent on women's deprivation from judgeship. Therefore, invoking this verse to ban women from judgeship is invoking evidence in a case of doubtful applicability (shubha misdaqiyya).[38]

Critique of the Implication of the Verse "Stay in Your Houses"

Regarding Verse 33 of Surah Al-Ahzab, some jurists believe that firstly, this verse is addressed to the wives of the Prophet (PBUH) because of the affiliation they had with his holiness. Secondly, conversation between a man and a woman, if it is with the observance of interests and Sharia rulings, has no religious problem. Thirdly, if this argument is accepted, women must be confined in the house and their assumption of any social affair must be considered forbidden, and such a thing is unlikely, nay impossible. Fourthly, this matter is contrary to the common Seerah in the era of the Infallibles, in which women had social occupations such as trade or presence in the battlefield for medical treatment and the like.[39]

Critique of the Argument Based on the Sahih of Abu Khadijah

In critiquing the citation of the narration of Abu Khadijah for the impermissibility of women's judgeship, in which the word "man" (rajul) is used, it is said: Firstly, this word is not in the position of stating the gender of the judge; rather, the main subject is the prohibition of referring to tyrant judges (Taghut).[40] Secondly, the mention of the word "man" is due to prevalence (ghalaba), because in that time men predominantly undertook these affairs and this word does not have independent thematic validity (mawdhu'iyyah).[41] Thirdly, the word "man" (rajul) in the Arabic language is sometimes used to mean "person/figure", and fourthly, the Concept of Title (Mafhum al-Laqab) is not a proof according to the majority of Usulis.[42]

Critique of the Argument Based on the Prophet's (PBUH) Advice

Regarding the Prophet's (PBUH) advice to Imam Ali (AS), objections have been raised: Firstly, the chain of the narration is weak due to the existence of unknown individuals. Secondly, the phrase "Lay'sa 'ala al-nisa" (It is not upon women) means the lack of obligation, not the lack of permissibility or lack of validity. Just as Friday prayer and congregational prayer are not obligatory for women; but if they participate, it is valid. Therefore, this narration indicates the non-obligation of assuming judgeship for women, not its prohibition.[43]

Critique of the Implication of the Narration "A People Will Never Prosper..."

The narration "A people who entrust their affairs to a woman will never prosper" has also been criticized in terms of the chain of transmission; because it has not been narrated in authentic Shia books. Furthermore, assuming its authenticity, "lack of prosperity" (adam falah) does not entail "impermissibility".[44]

Critique of the Implication of Narrations Regarding the Deficiency of Women's Intellects

Regarding the narrations of deficiency of intellect, it is stated that these narrations do not align with the general principles of Sharia and the Quran's view regarding the personality of woman. Also, these narrations are regarding family relationships and should not be generalized to the whole society.[45] Abdullah Javadi Amoli believes that no decisive demonstration has been presented for the condition of being male, and the argument based on narrations of deficiency of intellect is also flawed.[46]

Critique of Consensus

Finally, the claim of consensus has also been criticized. Mirza-ye Qomi has doubted the existence of a valid consensus on this issue.[47] In the belief of some jurists, this consensus is a "Documented Consensus" (Ijma Madraki); meaning it is based on the very verses and narrations under discussion, and such a consensus does not have independent validity from the Usuli perspective. This consensus has been claimed by jurists in a subsidiary issue of inferred Fiqh issues, and in such cases, one must refer to their documentation.[48]

Footnotes

  1. ↑ Khomeini, Tahrir al-Wasilah, Vol. 2, p. 404.
  2. ↑ Najafi, Jawahir al-Kalam, Vol. 40, p. 8.
  3. ↑ Soroosh Mahallati, "An Introduction to the Study of Women's Judgeship", pp. 53-54.
  4. ↑ Tusi, Al-Khilaf, Vol. 6, p. 213.
  5. ↑ Tusi, Al-Mabsut, Vol. 8, p. 101.
  6. ↑ Soroosh Mahallati, "An Introduction to the Study of Women's Judgeship", p. 57.
  7. ↑ Amili, Masalik al-Afham, Vol. 13, p. 326.
  8. ↑ Najafi, Jawahir al-Kalam, Vol. 40, p. 12.
  9. ↑ Soroosh Mahallati, "An Introduction to the Study of Women's Judgeship", p. 60.
  10. ↑ Ibn Idris, Al-Sara'ir al-Hawi li-Tahrir al-Fatawi, Vol. 2, p. 25.
  11. ↑ Halabi, Al-Kafi fi al-Fiqh, p. 424.
  12. ↑ Soroosh Mahallati, "An Introduction to the Study of Women's Judgeship", pp. 54 & 64.
  13. ↑ Ardabili, Majma' al-Fa'idah wa al-Burhan, Vol. 12, p. 15.
  14. ↑ Mirza-ye Qomi, Rasa'il al-Mirza al-Qomi, Vol. 2, pp. 598-599.
  15. ↑ Tabarsi, Majma' al-Bayan, Vol. 3, pp. 69-70.
  16. ↑ Tabatabai, Al-Mizan, Vol. 4, p. 343.
  17. ↑ Sayfi Mazandarani, Dalil Tahrir al-Wasilah - Wilayat al-Faqih, p. 149.
  18. ↑ Mousavi Golpaygani, Kitab al-Qada, Vol. 1, p. 47.
  19. ↑ Kulayni, Al-Kafi, Vol. 7, p. 412.
  20. ↑ Hosseini Haeri, Asas al-Hukumat al-Islamiyyah, p. 169.
  21. ↑ Sheikh Sadooq, Man La Yahduruhu al-Faqih, Vol. 4, p. 364.
  22. ↑ Shushtari, Al-Naj'ah fi Sharh al-Lum'ah, Vol. 6, p. 308.
  23. ↑ Tusi, Al-Khilaf, Vol. 6, p. 213.
  24. ↑ Rohani, Fiqh al-Sadiq (AS), Vol. 25, p. 22; See: Khansari, Jami' al-Madarik fi Sharh Mukhtasar al-Nafi', Vol. 6, p. 7.
  25. ↑ Sharif Razi, Nahj al-Balagha, p. 105.
  26. ↑ Kulayni, Al-Kafi, Vol. 5, p. 338.
  27. ↑ Fazel Hindi, Kashf al-Litham wa al-Ibham 'an Qawa'id al-Ahkam, Vol. 10, p. 17.
  28. ↑ Montazeri, Dirasat fi Wilayat al-Faqih wa Fiqh al-Dawlah al-Islamiyyah, Vol. 1, p. 356.
  29. ↑ Hosseini Tehrani, Risaleh Badi'ah, pp. 133-135.
  30. ↑ Najafi, Jawahir al-Kalam, Vol. 40, pp. 14-15; Mousavi Ardebili, Fiqh al-Qada, Vol. 1, p. 98.
  31. ↑ Qolipour, "A Fiqhi Reflection on the Arguments for Prohibiting Women's Judgeship", p. 77.
  32. ↑ Sheikh Ansari, Al-Qada wa al-Shahadat, p. 229.
  33. ↑ Salehi Najafabadi, "Women's Judgeship in Islamic Fiqh along with several other articles", p. 47.
  34. ↑ Mousavi Ardebili, Fiqh al-Qada, Vol. 1, p. 91.
  35. ↑ Motahhari, Collection of Works, Vol. 29, p. 447.
  36. ↑ Motahhari, Collection of Works, Vol. 15, p. 832.
  37. ↑ Karimi & Mozaffari, "A New Attitude towards the Arguments Regarding Women's Judgeship in Imami Fiqh and the Practical Procedure of Iranian Statutory Law", p. 30.
  38. ↑ Sobhani, Nizam al-Qada wa al-Shahadat fi al-Shari'ah al-Islamiyyah al-Gharra', Vol. 1, p. 60.
  39. ↑ Mousavi Ardebili, Fiqh al-Qada, Vol. 1, pp. 92-93.
  40. ↑ Khoei, Al-Tanqih fi Sharh al-Urwah al-Wuthqa; Al-Ijtihad wa al-Taqlid, p. 225; Mousavi Ardebili, Fiqh al-Qada, Vol. 1, p. 91.
  41. ↑ Ansari, Al-Qada wa al-Shahadat, p. 229.
  42. ↑ Karimi & Mozaffari, "A New Attitude towards the Arguments Regarding Women's Judgeship in Imami Fiqh and the Practical Procedure of Iranian Statutory Law", p. 31.
  43. ↑ Mousavi Ardebili, Fiqh al-Qada, Vol. 1, p. 94; Qolipour, "A Fiqhi Reflection on the Arguments for Prohibiting Women's Judgeship", pp. 75-76.
  44. ↑ Karimi & Mozaffari, "A New Attitude towards the Arguments Regarding Women's Judgeship in Imami Fiqh and the Practical Procedure of Iranian Statutory Law", pp. 32-33.
  45. ↑ Karimi & Mozaffari, "A New Attitude towards the Arguments Regarding Women's Judgeship in Imami Fiqh and the Practical Procedure of Iranian Statutory Law", pp. 34-35.
  46. ↑ Javadi Amoli, Zan dar Aine-ye Jalal va Jamal, pp. 348-349.
  47. ↑ Mirza-ye Qomi, Rasa'il al-Mirza al-Qomi, Vol. 2, p. 599.
  48. ↑ Montazeri, Dirasat fi Wilayat al-Faqih, Vol. 1, pp. 339-341.

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