ABSTRACT
It is enough for me that in the Muslims’ conduct since the era of the Prophet, it has never occurred in any era nor in any land that a woman has been put forward as a judge or a head of state.
(10:21-22): According to Abū Ḥanīfah, a woman may be a judge in every matter wherein the testimony of women is permitted, while al-Ṭabarī permits it categorically. According to Abū Ḥanīfah, women’s testimony is acceptable in everything other than prescribed punishments and [retributions based on] injuries. For our [position], there is the Prophet’s statement: ‘No people who entrusted their rule to a woman have succeeded’,14 and in a ḥadīth: ‘A people do not succeed when a woman has authority over them, and if they are unsuccessful, they will become corrupt.’15 And [there is] the Prophet’s statement: ‘Send them [the women] to the back whence God has sent them to the back.’ This is the utmost deficiency for them [the women]. And she is forbidden to stand next to a man in prayer due to fear of temptation. [Forbidding her from] being a judge – a post where criminals are in attendance – is more appropriate. Also, because the Prophet said: ‘If one of you finds [a mistake] in his prayer, he should say “Glory be to God”. Saying “Glory be to God” is for men and clapping hands is for women.’ He forbid her from [using] her voice, since she is shameful (ʿawrah), so forbidding her from being a judge is more appropriate. It is also [established] by way of analogy upon supreme political leadership. Those [who allow her to be judge] argue that since her testimony is valid, likewise her authority [as judge] is valid, the same as with a just man. It is also because the authority for [issuing] legal rulings and their sourcing can be carried out by a woman. The Prophet said: ‘Take half of your religion from this rosycomplexioned one’, by which he meant ʿĀ’ishah. The response to the first [argument] is that being a witness is different than being a judge because it is of a lower level, since she can be a witness though she cannot be the supreme political leader, while a just man can be both. This is why it is unheard of that a woman ever had authority as a judge in any era, and this [therefore] is a matter of consensus (ijmāʿ), since [such an appointment] is contrary to the way of the believers. The response to the second [argument] is that she can be proficient in what she needs to conduct her prayers in spite of her not being able to lead them. As for what Mālik relates that some of the Companions appointed Umm Sulaymān to authority over the markets, this is a case of policing a specific group of people and is not comparable with being a judge.
