Status of women's testimony in Islam

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The status of women's testimony in Islam is disputed. Muslim societies' attitudes range from completely rejecting female testimony in certain legal areas, to conditionally accepting (half-worth that of a male, or with a requirement for supporting male testimony), to completely accepting it without any gender bias. [1]

Contents

In Islamic law, testimony (shahada) is defined as attestation with regard to a right of a second party against a third. It exists alongside other forms of evidence (bayyina), such as the oath (yamin), acknowledgement (iqrar), and circumstantial evidence (qara'in al-ahwal). A testimony must involve certain knowledge of an affirmed event, and cannot be based on conjecture. [2]

In the second chapter of the Quran, Al-Baqarah, verse 2:282 provides a basis for the rule that two women are the equivalent of one man in providing a witness testimony in financial situations. [3]

O you who believe! When you contract a debt for a fixed period, write it down. Let a scribe write it down in justice between you. Let not the scribe refuse to write as Allah has taught him, so let him write. Let him (the debtor) who incurs the liability dictate, and he must fear Allah, his Lord, and diminish not anything of what he owes. But if the debtor is of poor understanding, or weak, or is unable himself to dictate, then let his guardian dictate in justice. And get two witnesses out of your own men. And if there are not two men (available), then a man and two women, such as you agree for witnesses, so that if one of them (two women) errs, the other can remind her.

Financial documents

In case of witnesses for financial documents, the Qur'an asks for two men or one man and two women. [4] [5] This is interpreted by a number of Muslim scholars so as to imply testimony of two women being equal to a single man's. Tafsir Ibn Kathir states: "Allah requires that two women take the place of one man as witness, because of the woman's shortcomings, as the Prophet described [in a hadith]." [6]

On the other hand, Javed Ahmed Ghamidi writes that Islam asks for two female witnesses against one male in the case of financial transactions as a means of relaxation of responsibility as it is not very suited to their temperament, sphere of interest, and usual environment. He argues that Islam makes no claim of a woman's testimony being half in any case. [7] Ghamidi believes the context and wording of the verse includes no hint of a legal setting, [8] (21:01) the verse states: regarding contracts, witnesses be made in such a way; instead of the statement being: regarding contract disputes, witnesses of such type be called upon, [9] (8:07) similar to how it is stated in Quran   4:15. [9] (19:18) Therefore, Ghamidi interprets the Qur'an verse as only a recommendation directed towards individuals, and it will be for the court judge to decide what kind and whose evidence will be enough to prove a case. [10]

Regarding the hadith, that is used to prove the half-testimony status, Ghamidi and members of his foundation, Al-Mawrid, argue against its reliability [11] and its common understanding. [12] [9] (27:37) Ghamidi also contends that the narration cannot be used in all general cases because it is related to the Qur'an verse whose subject is related only to financial matters. Another Pakistani religious scholar Ishaq argues that acquiring conclusive evidence is important, regardless of whether it can be obtained from just one man or just one woman. [13]

According to Ghamidi, regarding the verse Ibn al-Qayyim and Ibn Taymiyya also held similar views to his. [9] (11:31) Al-Qayyim argued that the verse relates to the heavy responsibility of testifying by which an owner of wealth protects his rights, not with the decision of a court; the two are completely different from each other. [14] It is also argued that this command shows that the Qur'an does not want to make difficulties for women. [15] Ibn Taymiyya also reasoned the deficiency of using Qur'an 2:282 to prove evidentiary discrimination against women. [16] However, both Ibn al-Qayyim and Ibn Taymiyya did believe in the difference of probative value of men's and women's testimony. It is argued that even though Ibn al-Qayyim believed that women were more prone to making errors, instead of concluding a general discrimination from this, women's testimony was to be treated on an individual basis. This is because Ibn al-Qayyim contended that in cases where a woman and man share all the Islamic good qualities of a witness, a woman's testimony corroborated by another woman may actually be considered stronger than the uncorroborated testimony of a man. Additionally, Ibn al-Qayyim also regarded the testimony of some exceptional women like those who transmitted the Hadith as doubtlessly greater than a single man of lesser esteem. [17]

Ibn Taymiyya writes:

"فَمَا كَانَ مِنْ الشَّهَادَاتِ لَا يُخَافُ فِيهِ الضَّلَالُ فِي الْعَادَةِ لَمْ تَكُنْ فِيهِ عَلَى نِصْفِ رَجُلٍ" "Whatever there is among the testimonies of women, which there is no fear of habitual error, then they are not considered as half of a man." [18]

Ibn al-Qayyim writes:

"وَالْمَرْأَةُ الْعَدْلُ كَالرَّجُلِ فِي الصِّدْقِ وَالْأَمَانَةِ وَالدِّيَانَة إلَّا أَنَّهَا لَمَّا خِيفَ عَلَيْهَا السَّهْوُ وَالنِّسْيَانُ قَوِيَتْ بِمِثْلِهَا وَذَلِكَ قَدْ يَجْعَلُهَا أَقْوَى مِنْ الرَّجُلِ الْوَاحِدِ أَوْ مِثْلَهُ" "The woman is equal to the man in honesty, trust, and piety; otherwise, whenever it is feared that she will forget or misremember, she is strengthened with another like herself. That makes them stronger than a single man or the likes of him." [19]

Criminal offences

As an extension to the limitation claimed in financial contracts, a significant number of conservative Muslim scholars also argue for discrimination against female testimonies in hadd and qisas cases too though not in tazir. [9]

In cases of hudud, punishments for serious crimes, 12th century Maliki jurist Averroes wrote that jurists disagree about the status of women's testimony. [20] According to Averroes, certain scholars said that in these cases a woman's testimony is unacceptable regardless of whether they testify alongside male witnesses. However, he writes that the school of thought known as the Zahiris believe that if two or more women testify alongside a male witness, then (as in cases regarding financial transactions, discussed above), their testimony is acceptable. [20] Ghamidi rejects the extended implementation of Q2:282 on incidental occurrences, arguing that the verse is limited specifically only to the topic of contract witnesses. [8] (15:37) Furthermore, some hadith record the presence of only single female testimonies in the cases of one murder and the assassination of Caliph Uthman. Respectively, the acceptance of these testimonies resulted in the death penalty for the murderer and start of a campaign against the state. [21]

According to classical interpretations which disallow female testimony in hudud cases, enforce the gender difference on the matter of deciding what punishment is to be delivered, and not on proving guilt. In this context, female testimony would be acceptable in order to prove the guilt of the defendant, however, in the absence of male testimony, the guilty party will be liable to only the taziri punishment, instead of the divinely ordained hadd punishment. [9] (28:42)

Other cases

Ibn al-Qayyim comments on the verse as follows:

There is no doubt that the reason for a plurality [of women in the Qur’anic verse] is [only] in recording testimony. However, when a woman is intelligent and remembers and is trustworthy in her religion, then the purpose [of testimony] is attained through her statement just as it is in her transmissions [in] religious [contexts]. [22]

In matters other than financial transactions, scholars differ on whether the Qur'anic verses relating to financial transactions apply. [23] This s especially true in the case of bodily affairs like divorce, marriage, slave-emancipation and raju‘ (restitution of conjugal rights). According to Averroes, Imam Abu Hanifa believed that their testimony is acceptable in such cases. Imam Malik, on the contrary, believes that their testimony remains unacceptable. For bodily affairs about which men can have no information in ordinary circumstances, such as the physical handicaps of women and the crying of a baby at birth, the majority of scholars hold that the testimony of women alone is acceptable. In certain situations, the scripture accepts the testimony of a woman as equal to that of a man's and that her testimony can even invalidate his, such as when a man accuses his wife of unchastity. [24]

When it came to legal testimony that was relegated to the private domain (e.g., birth), the testimony of one woman was equal to, and often more worthy than, the testimony of one man since there was no doubt that a woman was more experienced in that arena. Ibn Qudamah (d. 620 H), in his most famous compendium on Islamic jurisprudence al-Mughnī, explained that n matters of nursing, childbirth, menstruation, chastity, and physical defects, a male witness is not accepted entirely while a single female witness is. Not all scholars, however, insisted on the political and normative dichotomy, nor the public versus private realms. Hanbalite scholars Ibn Taymiyyah and Ibn al-Qayyim rejected these categorizations and argued that if either (testimony or narration) were to be more important, narrating a hadith would require more care because it deals with the words and actions of the Prophet. [22]

Classical commentators

Classical commentators commonly explained the unequal treatment of testimony by asserting that women's nature made them more prone to error than men. Muslim modernists have followed the Egyptian reformer Muhammad Abduh in viewing the relevant scriptural passages as conditioned on the different gender roles and life experiences that prevailed at the time rather than women's innately inferior mental capacities, making the rule not generally applicable in all times and places. [25]

Based mostly on a 2011 UNICEF report, partial list of countries where a woman's testimony is worth half that of a man:

OIC countries where women's testimony is known to be equal to a man's in all cases:

List is incomplete

Details

Tunisian and Turkish laws give equal treatment to women in matters of testimony. [1]

See also

Bibliography

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References

  1. 1 2 Rao, Dr Muhammad Atif Aslam (2020-05-24). "Islamization of Law of Evidence in Pakistan with Specific Reference to Testimony of a Woman". Rochester, NY. SSRN   3609096.{{cite journal}}: Cite journal requires |journal= (help)
  2. ↑ Wael B. Hallaq (2009). Sharī'a: Theory, Practice, Transformations. Cambridge University Press. p. 347.
  3. ↑ Fadel, Mohammad (1997). "Two Women, One Man: Knowledge, Power and Gender in Medieval Sunni Legal Thought". International Journal of Middle East Studies. 29 (2): 185–204. doi:10.1017/S0020743800064461. S2CID   143083939. SSRN   1113891.
  4. ↑ See also [Quran   2:282]: "... and call in to witness from among your men two witnesses; but if there are not two men, then one man and two women from among those whom you choose to be witnesses, so that if one of the two errs, the second of the two may remind the other...".
  5. ↑ According to Averroes, a 12th-century Maliki, "There is a general consensus among the jurists that in financial transactions a case stands proven by the testimony of a just man and two women on the basis of [this] verse." (Ibn Rushd. Bidayatu’l-Mujtahid, 1st ed., vol. 4, (Beirut: Daru’l-Ma‘rifah, 1997), p. 311).
  6. ↑ Ibn Kathir. "Tafsir Ibn Kathir (English): Surah Al Baqarah Pt II". Quran 4 U. Tafsir . Retrieved 22 December 2019.
  7. ↑ Ghamidi. Burhan: The Law of Evidence Archived 2007-02-11 at the Wayback Machine . Al-Mawrid
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  9. 1 2 3 4 5 6 Is woman's testimony half the weight of man's? , retrieved 2019-12-24
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  15. ↑ Half of a Man! Archived 2007-09-27 at the Wayback Machine , Renaissance - Monthly Islamic Journal, 14(7), July 2004
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  17. ↑ Fadel, Mohammad (1997-01-01). "Two Women, One Man: Knowledge, Power, and Gender in Medieval Sunni Legal Thought" (PDF). International Journal of Middle East Studies. 29 (2): 198–199. doi:10.1017/S0020743800064461. S2CID   143083939. Archived from the original (PDF) on 2020-12-30. Retrieved 2016-05-03.
  18. ↑ Turuq Al Hukmiya 1:128
  19. ↑ al-Jawziyya, Ibn Qayyim. الطرق الحكمية في السياسة الشرعية. p. 430.
  20. 1 2 Ibn Rushd. Bidayatu’l-Mujtahid, 1st ed., vol. 4, (Beirut: Daru’l-Ma‘rifah, 1997), p. 311.
  21. ↑ Khan, Muhammad Farooq. "7". Islam and Women.
  22. 1 2 "Women in Islamic Law". Yaqeen Institute. 2019-07-24.
  23. ↑ Ordinary Muslims also challenge the extent of the application of the verse; see, e.g.,
  24. ↑ "Women In Islam Versus Women In The Judaeo-Christian Tradition". www.twf.org.
  25. ↑ Mohammad Fadel (1997). "Two Women, One Man: Knowledge, Power, and Gender in Medieval Sunni Legal Thought". International Journal of Middle East Studies. 29 (2): 187. JSTOR   164016.
  26. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
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  28. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  29. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  30. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  31. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  32. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  33. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  34. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  35. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  36. ↑ "Right to equal protection by the law". BBC World Service. Retrieved 16 February 2014.
  37. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  38. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  39. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  40. ↑ "Algeria" (PDF). United States Department of State. 2011. Retrieved 26 November 2016. The testimony of men and women has equal weight under the law.
  41. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
  42. ↑ "Gender Equality Profile" (PDF). UNICEF. 2011. Archived from the original (PDF) on 2019-01-12. Retrieved 16 February 2014.
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