There is no dispute among the classical scholars that it’s prohibited for a woman to hold a ruling position such as the Khaleefah or a waali (governor), although she can hold any other non-ruling governmental position, and be an active member of the Majlis al-Nuwaab (House of Representatives). This is based on the hadith narrated by Abi Bakra, that when the Messenger of Allah ﷺ was informed that the Persians had crowned the daughter of Chosroes as their ruler, he ﷺ said,
لَنْ يُفْلِحَ قَوْمٌ وَلَّوْا أَمْرَهُمُ امْرَأَةً
“People who appoint a woman over their affairs will never succeed.”[1]
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However, the majority of scholars went a step further, and applied this hadith to judiciary by making analogy between ruling and judging, because the differences between them are subtle.
Ibn al-Tin al-Safaqsi said: “Those who say that a woman cannot be appointed as a judge cite the hadith of Abu Bakra, and this is the opinion of the majority. Ibn Jarir al-Tabari disagreed, saying that it is permissible for her to judge in matters where her testimony is accepted. Some Malikis also permitted it without qualification.”[2]
When it comes to ijtihad (extracting rules), the mujtahid (scholar) does not give weight to the majority opinion, rather they issue a hukm (rule) based on the strength of the textual evidences.
Despite the view of the majority, the strongest opinion is that this hadith of Abi Bakra is restricted to ruling because that is its subject-matter and context and it cannot be used as a shara daleel (divine evidence) to prohibit women from being judges. This is based on the principle in usul ul-fiqh, ‘The generality of the expression in the specificity of the cause is only in the subject of the incident and the question, it is not general in everything’.[3]
Taqiudeen an-Nabhani says, “Looking at the Hadith, we find that the Messenger ﷺ dispraised the people who appointed a woman over their affairs in response to the news that reached him that the people of Persia had appointed a woman as queen. It is, therefore, a comment on a piece of news, and in a manner of a response to a question. It is specific to the topic of the report and to none other. The subject matter of the news is the ruling (mulk) i.e. the leadership of the state. The comment was on this topic and it is specific to the issue of state leadership and whatever is related to that, which is governance (hukm). This is from one perspective. From another angle we see that the prohibition is directed towards the general authority because it is the authority over the affairs (of people). This is what the Hadith means and this is what it indicates.”[4]
Therefore, “it is allowed for the woman to assume the position of judge because the judge is not a ruler but rather settles disputes between people and informs the disputants of the binding Shari’ah rule.”[5]
Notes
[1] Sahih al-Bukhari 4425, https://sunnah.com/bukhari/64/447
[2] Fath Al-Bari, https://shamela.ws/book/1673/7487#p1
[3] Taqiudeen an-Nabhani, Shakhsiya Islamiya, 3rd edition, 2005, p.244
[4] Taqiuddin an-Nabhani, ‘Social System in Islam,’ Al-Khilafah Publications, 3rd Edition, 1990, p.92
[5] Ibid, p.91
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