By: Sayyed Muhammad Hussein Fadlullah (ra)
Translated by: Manal Samhat
The issue of women assuming political and judicial positions is one of the issues discussed by the Islamic jurisprudence.
Some jurists based their opinion of the illegitimacy of women assuming power on a Hadith narrated by Al-Bukhari and a group of Sunni scholars - yet this Hadith is not narrated in the Imamate Shiite books - which says that when the Prophet (p.) heard that a group of Persian people has chosen a woman to be their ruler, he said: "Never will succeed such a nation that makes a woman their ruler." This is the only Hadith discussing this issue and when it was said, it had its own specific circumstances. However, the jurists based their ruling on this Hadith to say that women are not fit for assuming any sort of power.
Other jurists have begun to express some reservations on this issue, firstly because it had its circumstances that we are not aware of, noting that ruling in the past circumstances differs from that in the present ones. In the past, the ruler was the ultimate ruler and he was in control of everything; however, nowadays, the ruler's rule is not absolute for he himself is subjected to the law in the presence of institutions that might hold him accountable and even take him to trial in case of any slackness or so…
It could be said that even if this prophetic tradition was true and its content was comprehensive and its connotation was not discussed, it was talking about the nature of rule at that time which differs from the nature of rule at our times… If those jurists had understood from the Hadith: "Never will succeed such a nation that makes a woman their ruler," that the woman does not possess the mind required to rule, they ought to know that the Quran has presented to us a more mindful woman who is stronger in setting plans and more rational than men; which is the queen of Saba' when she received Solomon's letter: "She said: "Ye chiefs! Advise me in (this) my affair." (27:32). Yet, this queen was not in need for any advice, and their system did not call for receiving advice, which we understand from the following Ayahs: "She said: "Ye chiefs! Advise me in (this) my affair: no affair have I decided except in your presence." (27:32) i.e. let us consult each other to reach the safest and most correct stand. She asked for their opinions, but what did she get?! They offered their muscles. She required their mind, but they offered her their muscles, as the Ayah says: "They said: "We are endued with strength, and given to vehement war: but the command is with thee; so consider what thou wilt command." (27:33). They represented the people who do not express their opinion or feel that they have the right to do so; therefore, they made her in command. Then, she said: "She said: "Kings, when they enter a country, despoil it, and make the noblest of its people its meanest thus do they behave. But I am going to send him a present, and (wait) to see with what (answer) return (my) ambassadors." (27:34-35).
She was trying to get to know the character of the man who had sent her this message. She was trying to know if he was a king who came to spread corruption on earth, or a prophet who came to call for the right. Moreover, she remained proud even when she went to Solomon and submitted with him to Allah. She preserved her personality, mentality, and contentment, and she said: "I do (now) submit (in Islam), with Solomon, to the Lord of the Worlds." (27:44).
If the Quran pictures women in this sense, how could then the Islamic thought be based on the aforementioned prophetic tradition?! Is it a thought that considers the woman, in her nature, incapable of ruling and using her mind to assume a certain position? We have our reservation on these Fatwas issued by these jurists, because we see that the Hadith does not prove what they understood from it, and the Quran tells us something different than what they believe in.
As for the issue of assuming judicial positions, there is only one Hadith handling this issue, which says: "women should not be appointed to judicial positions", but it is of a weak basis. Some might even try to base their understanding on the issue that a man's testimony is two times that of a woman's; however this does not signify anything, for this issue too has its singularity.
Therefore, some scholars, including Sayyed Al-Ardabili in his book "Fokh Al-Kada' (the Jurisprudence of Judicial Authority) started, in a suggestive process, to pave the way for discussing the idea by the possibility of discussing the Ijtihadi evidence that the jurists presented on the subject from the Quran, the Sunnah and the consensus.
Therefore, the Ijtihadi course is not blocked in any direction, because the traditions narrated on this subject are weak and man could discuss some of their connotations and realize that the issue of judicial authority is based on knowledge and piety. If the woman enjoys these traits, she could assume judicial positions, but with few reservations that could be expressed in a certain aspect or another. Therefore, the issue does not have only to do with a Fatwa, so we say: this issue is not one that could not be discussed, because Ijtihad could be applied on it, in a way or another, in a positive manner.
This is the opinion of the Muslim Shiite religious scholars; however, some of the Sunni scholars - including Ahmad, Malik and Ash-Shafi'i - say: the woman cannot be a judge; and Abu Hanifa said: it is permissible for the woman to be a judge on the affairs related to money since it is permissible for her to testify on issues related to money. Moreover, At-Tabari said: A woman could be an ultimate judge in everything, based on the fact that the rule of everyone who solves people's disputes is permissible, except for what there is a consensus on that it is restricted to the Grand Imamate.
Therefore, we can conclude that the issue of women assuming judicial positions - in Islamic jurisprudence - is not of the issues that have been settled in a negative manner - at the levels of inference and Fatwas, which keeps the door open, at the jurisprudential level, to the opinion of the other.
Moreover, there is no difference between man and woman when it comes to the right to work. No man, be he a brother, husband, or son, has the right over what the woman possesses, for Allah says: "Men shall have the benefit of what they earn and women shall have the benefit of what they earn," (04:32), i.e. the woman has no share in what the man earns, for only he has the right over what he earns; so is the case for women.
An excerpt from the book “A New Reading of the Woman's Jurisprudential Right”