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Post by StudentOfTheDeen on Jul 30, 2024 16:40:06 GMT
The Ḥanafī Madhhab on a Woman Acting as Qāḍī
By Mufti Zameelur Rahman Some claim it is permissible in the Ḥanafī madhhab for women to be qāḍīs and that this suggests it is allowed for women to mix and interact with men. The Ḥanafī madhhab states that a woman’s judgements, if she is appointed as a qāḍī, are valid/enforceable in cases other than ḥudūd and qiṣāṣ, in opposition to the other madhhabs where her judgements are invalid in all cases. ( al-Mawsūʻah al-Fiqhiyyah al-Kuwaytiyyah, 14:73-4; 33:294) However, while the Ḥanafī madhhab deems it “valid” in such cases, it is still considered impermissible and sinful if it entails her mixing and conversing with men. Imām al-Mawṣilī (599 – 683 AH) states: Here, “makrūh” refers to “makrūh taḥrīman” (sinful). Hence, several Ḥanafī scholars have explicitly stated her judgeship is sinful. ( al-Baḥr al-Rā’iq, 7:8; al-Taḥqīq al-Bāhir, 6:390-1; Radd al-Muḥtār, 16:577) Imām al-Qudūrī (362 – 428 AH) suggests her being a qāḍī is only discouraged (and thus not sinful), but he is speaking in the context of her not judging in cases where she interacts with men. He states: The term “ jawāz” in the context of a woman’s judgeship means “validity”, not “permissibility” or “free of sin”. So, while her judgements would be valid or enforceable in some cases according to the Ḥanafī madhhab, it can still be sinful if it entails her mixing and conversing with men. Ibn al-Humām said in response to arguments against the Ḥanafī position: “The most it shows is the prohibition and impermissibility of her being made a qāḍī, while the discussion is about the situation that she was appointed and the appointer is sinful for this…and then she made a judgement agreeing with the religion of Allāh, would it be enforceable or not?” ( Fatḥ al-Qadīr, 7:279) In short, while it is considered a necessity ( ḍarūrah) for a male qāḍī to interact with the opposite gender during legal disputes, the same necessity does not apply to a female qāḍī, rendering her role impermissible if it involves such interactions (even if her judgements are technically deemed to be “valid”). See also: The Prohibition of Ikhtilāṭ (Unnecessary Mixing of Non-Elderly Men and Women) |
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Post by Zameel on Jul 30, 2024 23:59:12 GMT
Someone has written a “response” that doesn’t merit a full reply. However, I will address one specific point below. In response to the point: The individual states: The statement of al-Laknawī is as follows: قوله صلى الله عليه وسلم: لا يفلح قوم ولوا أمرهم امرأة، يدل على نقصان ذلك الحال، لا على عدم جواز توليتها “The statement of the Prophet ﷺ, ‘A people who have entrusted their affair to a woman will not succeed,’ indicates the deficiency of this state (in the people), not the invalidity ( ‘adam jawāz) of appointing her.” ( ‘Umdat al-Ri‘āyah, 5:459) The same is found in Fatḥ Bāb al-‘Ināyah (Dār al-Sulṭān, 4:33) as follows: وقول رسول الله صلى الله عليه وسلم: لا يفلح قوم ولوا أمرهم امرأة، يدل على نقصان حال ذلك القوم، لا على عدم جواز توليتها The word “jawāz” in this context means validity. Therefore, this statement is merely arguing that the ḥadīth does not prove a woman’s judgeship is invalid. What makes this even clearer is the fact that the text al-Laknawī is commenting on, Sharḥ al-Wiqāyah, presents the issue under discussion as: وصح قضاء المرأة إلا في حد وقود
“The judgeship of a woman is valid except in ḥadd and qiṣāṣ.” Hence, al-Laknawī’s comment that the ḥadīth does not prove the “ ‘adam al-jawāz” of a woman’s judgeship is about its validity, not about whether it entails sin or not. Hence, not only does the individual ignore the clear statement of Ibn al-Humām clarifying that the context of the discussion is about “validity”, but he also misunderstands the passage of al-Laknawī that he uses to argue otherwise. |
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Post by Zameel on Aug 8, 2024 11:03:05 GMT
‘Allāmah Zāhid al-Kawtharī writes in his article Ḥijāb al-Mar’ah (“The Ḥijāb of a Woman”):
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