Women

Woman as judges

Islamic system considers ruling and judging as two different actions. Judging is merely informing of the Shariah decree. It settles disputes between people or forbids what harms or injures the public right or removes discord between people and anyone in ruling positions.

Judging is different from ruling process, since ruling is deducting the shariah decrees out from its detailed evidences by any scholar of shariah or the ruler himself, who adopts them to tackle all matters of life. where as judging process puts those adopted decrees, which are in the form of the articles of constitution or laws, to application. For example, whenever there is a dispute case between two people, the judge appointed for such a case, has to apply the adopted decree to settle the problem. Also if the case is of another quality, such as of public-right affairs, the judge specialized for setting such cases has to apply the special adopted decree to settle the problem. Also the same proceedings should be followed if the case is discord or acts of injustice caused by any official person against the citizen.

The definition of judging comes from its nature being the middle stage between adoption and execution. There are three stages ofapplying shariah judgments in life. First is the adoption stage where the ruler adopts laws and canons. It should be noted that Islam allowsanyone with knowledge to state their opinions on various legislative issues. But these opinions are not binding until the ruler adopts them. Upon adoption by the ruler, these opinions becomes part of constitution and laws. The role of the judge is to simply inform the adopted shariah rule to settle problems. When the judge informs the shariah ruling, its execution is not part of judge's duty. Rather it is an administrative affair handled by the court. If the judge were to face a new problem which is not mentioned in the constitution, then this issue is alerted to the ruler who would adopt the shariah ruling.

Can woman become a judge?

Once the reality and the definition of judging is clarified, it can be said, based on textual evidence, that Islam does not prohibit woman from taking judging positions. Umar Ibn Khattab appointed a woman called Al-Shifa as a judge in the market and this was not denounced by the Sahabah.

There are three types of judge in Islam.

Firstly, the department of the qadi aam deals with general disputes between the people.

Secondly, the department of the qadi hisba deals with violations of the public right.

Thirdly, the department of the qadi madhalim deals with disputes between the people and the ruling authority. In all cases, legislation and punishment is guided by the Islamic Shari'ah.

However, judge of unjust acts is a post prohibited for woman due type of issue dealt by this category of judges. The judge of Unjust act(qadi madhalim) is responsible for setting disputes arising between the citizens and the ruler. This type of judging process involves passing judgements on the Shariah decrees adopted by the ruler, on his policies and his effectiveness. This means that qadi madhalim(judge of unjust acts) can actually give new judgments to replace the Shariah decrees already adopted by the ruler based on the strength of evidence. Hence this post is a ruling position and since Islam prohibits woman to be a ruler this specific category of judging position is not allowed for women whereas the other two types of judging positions are allowed for women. We cannot deduce a reason why Islam forbade it and more importantly we should not be in the business of inventing reasons from our minds such as 'maternity leave'.