Assalamu alaikum Wa Rahmatullah Wa Barakatuhu
My dear Brother, may Allah protect you,
This subject of women becoming judges is discussed by many members, i.e. to be appointed in the post of a judge. This matter must be reviewed, from the actions of the Prophet صلى الله عليه وسلم and the companions after him and the adherence of the Ummah to these actions throughout its long history, we see that this matter was not known. Since the establishment of the first Islamic state until the demise of the Othmani Khilafah, never was a woman appointed as a judge. What should be taken into consideration when extracting the rule on women becoming judges are the reality of the judiciary, and its precedence, and the reality of the public life and women's presence in it; if she is not permitted to leave her house without her husband's permission, and is not allowed to be in seclusion with the disputing parties, then the priority is that she does not become the judge between them...
From Hani Uqda
Wa Alaikum Assalam Wa Rahmatullah Wa Barakatuhu
1. Sunnah is the saying, action, and the consent (over a saying and action) of the Prophet صلى الله عليه وسلم... this is all in meaning whether it is correct or applied to the issue. It is true that the actions of the Prophet صلى الله عليه وسلم are Shariah rules, and the are sufficient to show the beauty of the Shariah text in general, but there are basis that must be followed in the method of referring to the Prophet's action صلى الله عليه وسلم, if the Prophet does not carry out the action, this is not taken as an evidence for its prohibition, but there must be a presence of another evidence, or a Qareena (indication) that shows that when the Prophet صلى الله عليه وسلم is not carrying out an action it means that the action is a haram action. The Prophet صلى الله عليه وسلم did not nominate a Khaleefah after him صلى الله عليه وسلم; the companions (ra) did not understand that to mean it is prohibited for them, so they asked Abu Bakr (ra) to nominate a Khaleefah after him, and he nominated Omar (ra), may Allah be pleased with them all. This is because the fact that the Prophet صلى الله عليه وسلم did not do the action was not supported by evidence or a Qareena that the action is prohibited. Bukhari narrated from Abdullah Bin Omar (ra), he said: "Omar was asked if he can nominate his successor? He said: "If I do nominate a successor, then the one who was better than me also nominated one, he is Abu Bakr, and if I do not, then he who was better than me did not nominate one, he is the Messenger صلى الله عليه وسلم. So every action that was performed by the Prophet does not mean that it is therefore prohibited unless it is supported by an evidence or Qareena to indicate the prohibition.
This is similar in the matter of the Prophet صلى الله عليه وسلم appointing women as judges, simply by not doing so does not mean that the action is prohibited, but this should be backed by evidence or a Qareena that indicate the prohibition. There is no supporting evidence and there is no Qareena present, therefore it is not understood by the non-action by the Prophet صلى الله عليه وسلم that the action is prohibited except if it is accompanied by evidence or Qareena.
2. As for what you mentioned that the restrictions on women in terms of being "a housewife and an honor that must be protected, and what accompanies that of natural reasons which makes her unable to carry out many Shariah obligation...; if she is not permitted to leave her house without her husband's permission, and is not allowed to be in seclusion (khulwa) with the disputing parties, then the priority is that she does not become the judge between them..."
This does not affect the permissibility of her being appointed as a judge, Shariah rule does not stipulate that it is an obligation on women to become judges, it is only permitted, and a woman is more aware of her home circumstances and her abilities. In addition, all of these matters are not a condition of the contract, nor are conditions of a Judge, nor in the subject of judiciary. Even the seclusion (Khalwa) with the disputing parties that you mentioned, as if you were trying to point out that it is part of the investigation in a (court) case, which is not the case, otherwise it would not be permissible for the male to be a judge, because not all the disputing parties are men, but there are women as well. And so, just as it is not permitted for the female judge to be in seclusion with disputing men, it is the same for the male judge, he cannot be in seclusion with disputing women. With the knowledge that seclusion is not necessary to solve a case, it is normal to find others present in the court, like the prescriber of the judge, the witnesses and non-marriageable relatives (Mahram)... and so on.
3. The Shariah texts are clear in the issue of permissibility of a woman becoming a judge to settle disputes between people; it is the same with position of a Hisba judge. In order to elaborate more how the evidences are related to this issue as we mentioned previously, let me repeat a few matters that I have explained on this questions' site, it will ease the understanding of the Shariah texts and the extraction of rules from them.
A- There is a style used by the Arabs, called "Taghleeb" (addressing the dominant element), i.e. that the speech's tone is masculine, and the female is included through the style of "Taghleeb". It is well known to those who have knowledge of the fundamentals of fiqh, like the saying of Allah يَا أَيُّهَا الَّذِينَ آمَنُوا "O you who believe" (masculine terms used), in which female believers are also included and are not excluded from the rule except by another text.
As well as what was reported by Al-Bukhari, that Abu Huraira (ra) narrated that the Prophet صلى الله عليه وسلم said,
«أَيُّمَا رَجُلٍ أَعْتَقَ امْرَأً مُسْلِمًا، اسْتَنْقَذَ اللَّهُ بِكُلِّ عُضْوٍ مِنْهُ عُضْوًا مِنْهُ مِنَ النَّارِ»
"When a man frees a Muslim slave, Allah will save all the parts of his body from the (Hell) Fire as he has freed the body-parts of the slave."
It is also applicable to women in the "Taghleeb" style. i.e. "when a woman frees a Muslim slave...".
Also like the Hadith of An-Nisa'i regarding the Zakat of the Camel... Abu Hurairah narrated, he said: I heard the Messenger of Allah صلى الله عليه وسلم, saying:
«أَيُّمَا رَجُلٍ كَانَتْ لَهُ إِبِلٌ لَا يُعْطِي حَقَّهَا فِي نَجْدَتِهَا وَرِسْلِهَا»، قَالُوا: يَا رَسُولَ اللَّهِ، مَا نَجْدَتُهَا وَرِسْلُهَا؟ قَالَ: «فِي عُسْرِهَا وَيُسْرِهَا، فَإِنَّهَا تَأْتِي يَوْمَ الْقِيَامَةِ كَأَغَذِّ مَا كَانَتْ وَأَسْمَنِهِ وَآشَرِهِ، يُبْطَحُ لَهَا بِقَاعٍ قَرْقَرٍ فَتَطَؤُهُ بِأَخْفَافِهَا، إِذَا جَاءَتْ أُخْرَاهَا أُعِيدَتْ عَلَيْهِ أُولَاهَا فِي يَوْمٍ كَانَ مِقْدَارُهُ خَمْسِينَ أَلْفَ سَنَةٍ، حَتَّى يُقْضَى بَيْنَ النَّاسِ فَيَرَى سَبِيلَهُ...»
"Any man who has camels and does not pay what is due on them in its Najdah or its Risl mean". They said, 'O Messenger of Allah, What is their Najdah and Risl?' He said, "In times of hardship or in times of ease; they will come on the Day of Resurrection as energetic, fat and lively as they ever were. He will be laid face down in a flat arena for them and they will trample him with their hooves. When the last of them has passed, the first of them will return, on a day that is as long as fifty thousand years, until judgment is passed among the people, and he realizes his end..."
This hadith also applies to women in the prevailing style, if she does not pay what is due from zakat for the camels she owns; because there was no mention of a text that excludes her from the rule.
For example, His سبحانه وتعالى saying:
أَقِيمُوا الصَّلَاةَ وَآتُوا الزَّكَاةَ وَأَطِيعُوا الرَّسُولَ لَعَلَّكُمْ تُرْحَمُونَ
"And establish prayer and give zakah and obey the Messenger-that you may receive mercy"
Praying, Zakat, and the obedience to the Prophet صلى الله عليه وسلم is an obligation on men and women, because there was no mention of a text that excludes her from the rule.
And in His سبحانه وتعالى saying:
وَلْتَكُنْ مِنْكُمْ أُمَّةٌ يَدْعُونَ إِلَى الْخَيْرِ وَيَأْمُرُونَ بِالْمَعْرُوفِ وَيَنْهَوْنَ عَنِ الْمُنْكَرِ وَأُولَئِكَ هُمُ الْمُفْلِحُونَ
"And let there be [arising] from you a nation inviting to [all that is] good, enjoining what is right and forbidding what is wrong, and those will be the successful"
Thus, political work with a group calling for Islam and enjoins the good and forbid the evil includes both men and women, because there was no mention of a text that excludes her from the rule.
Also the example:
Narrated by Bukhari in his saheeh from Qatada from Salih Abi Khalil, from Abdullah Bin Al-Harith, which is referred to Hakeem Bin Hizam (ra), who said: the Prophet صلى الله عليه وسلم said:
«البَيِّعَانِ بِالخِيَارِ مَا لَمْ يَتَفَرَّقَا، - أَوْ قَالَ: حَتَّى يَتَفَرَّقَا - فَإِنْ صَدَقَا وَبَيَّنَا بُورِكَ لَهُمَا فِي بَيْعِهِمَا، وَإِنْ كَتَمَا وَكَذَبَا مُحِقَتْ بَرَكَةُ بَيْعِهِمَا»
"The seller and buyer have the choice (to continue or to end their agreement) as long as they do not depart the location of the agreement, If they are truthful and thorough, Allah will bless the contract, but if they were untruthful and ambiguous, the barakah diminishes from their contract"
This includes men and women; because there was no mention of a text that excludes her from the rule.
B- But this "Taghleeb" style does not apply if it was suspended with a Shar'i text:
So for example, Allah سبحانه وتعالى says:
كُتِبَ عَلَيْكُمُ الْقِتَالُ وَهُوَ كُرْهٌ لَكُمْ
"Fighting is enjoined on you, and it is an object of dislike to you"
the speech here is in a masculine tone, but we do not use here the style of "Taghleeb", so we do not say that this address also includes women through the style of "Taghleeb" in the terms "Fighting has been prescribed for you", because this is suspended with other Shar'i texts making Jihad only Fardh upon men,
It was reported by Ibn Maajah from Habib bin Abi Amrah, from A'isha bint Talhah, from A'isha the mother of the believers (raa), she said: I said: "O Messenger of Allah, do women have to engage in jihad? He said: «نَعَمْ، عَلَيْهِنَّ جِهَادٌ، لَا قِتَالَ فِيهِ: الْحَجُّ وَالْعُمْرَةُ» "Yes, Jihad in which there is no fighting: Hajj and 'Umrah." i.e. that Jihad in its fighting sense is not Fardh upon women.
Another example, Allah سبحانه وتعالى says:
يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نُودِيَ لِلصَّلَاةِ مِنْ يَوْمِ الْجُمُعَةِ فَاسْعَوْا إِلَى ذِكْرِ اللَّهِ وَذَرُوا الْبَيْعَ ذَلِكُمْ خَيْرٌ لَكُمْ إِنْ كُنْتُمْ تَعْلَمُونَ
"O you who believe! When the call is made for prayer on Friday, then hasten to the remembrance of Allah and leave off trading; that is better for you, if you know."
I.e. it is prohibited for men to continue their trade at the time of Friday Adhan, and here, the "Taghleeb" style does not apply, i.e. it is not prohibited for women to continue their trade during the Adhan time, because Friday Prayer is not Fardh upon women, as proven in the Hadith of the Prophet صلى الله عليه وسلم, reported by Al-Hakim in Al-Mustadrak by the two Sahih, narrated by Abu Musa, that the Prophet صلى الله عليه وسلم said:
«الْجُمُعَةُ حَقٌّ وَاجِبٌ عَلَى كُلِّ مُسْلِمٍ فِي جَمَاعَةٍ إِلَّا أَرْبَعَةٌ: عَبْدٌ مَمْلُوكٌ، أَوِ امْرَأَةٌ، أَوْ صَبِيٌّ، أَوْ مَرِيضٌ»
"Salaatul Jumaah in congregation is a duty (wajib) upon every Muslim except for four: a slave, a woman, the immature boy and the sick."
Al-Hakim said, "This hadith (narration) is Sahih (valid) according to the requirements of the two Sheikhs (Bukhari and Muslim), and Adh-Dhahabi agreed with him.
And in His سبحانه وتعالى saying:
وَمَنْ لَمْ يَحْكُمْ بِمَا أَنْزَلَ اللَّهُ فَأُولَئِكَ هُمُ الظَّالِمُونَ
"And whoever does not judge by what Allah has revealed - then it is those who are the disbelievers"
This is a general text that includes men and women, even though it is in the masculine form according to the Taghleeb style. But this general text was restricted to men only in the issue of ruling, in the Hadith of Bukhari, narrated by Abu Bakra, who said: the Prophet صلى الله عليه وسلم said:
«لَنْ يُفْلِحَ قَوْمٌ وَلَّوْا أَمْرَهُمُ امْرَأَةً»
"Never will succeed such a nation as makes a woman their ruler."
Because guardianship, i.e. leadership is not allowed for women, this restricts the general rule. This does not mean therefore that women are less intelligent than men, but it is a ruling that only Allah Knows the wisdom behind and it is best for both men and women.
C- There Hadeeths that address both men and women with issues, and includes some issues that are restricted to men only; while the rest of the issues are addressed to both men and women.
The text of the Hadith reported by Bukhari in his Sahih, Abu Huraira narrated that the Prophet (peace and blessings be upon him) said,
«سَبْعَةٌ يُظِلُّهُمُ اللَّهُ فِي ظِلِّهِ، يَوْمَ لاَ ظِلَّ إِلَّا ظِلُّهُ: الإِمَامُ العَادِلُ، وَشَابٌّ نَشَأَ فِي عِبَادَةِ رَبِّهِ، وَرَجُلٌ قَلْبُهُ مُعَلَّقٌ فِي المَسَاجِدِ، وَرَجُلاَنِ تَحَابَّا فِي اللَّهِ اجْتَمَعَا عَلَيْهِ وَتَفَرَّقَا عَلَيْهِ، وَرَجُلٌ طَلَبَتْهُ امْرَأَةٌ ذَاتُ مَنْصِبٍ وَجَمَالٍ، فَقَالَ: إِنِّي أَخَافُ اللَّهَ، وَرَجُلٌ تَصَدَّقَ، أَخْفَى حَتَّى لاَ تَعْلَمَ شِمَالُهُ مَا تُنْفِقُ يَمِينُهُ، وَرَجُلٌ ذَكَرَ اللَّهَ خَالِيًا فَفَاضَتْ عَيْنَاهُ».
"There are seven persons whom Allah will shade on a Day when there is no shade but His. A just ruler, a young man who grew up in the worship of Allah, a man whose heart is attached to the Masajid, two men who love each other for the sake of Allah who meet and depart from each other for the sake of Allah, a man whom a beautiful woman of high status seduces but he rejects her by saying I fear Allah, a man person who spends in charity and conceals it such that his right hand does not know what his left hand has given, and a man who remembered Allah in private and he wept." (Agreed upon).
This Hadith is applicable to the woman through the style of Taghleeb regarding the five out of the seven categories mentioned, which have not been suspended through other Shar'i, so it applies to a young woman who grew up in the remembrance of Allah... and to two women who love each other for the sake of Allah... and a woman whom a man seduces...and a woman who spends in charity... and a woman who remembered Allah in private and she wept...
But this Taghleeb style does not apply to the Just Ruler, and a man whose heart is attached to the Masajid because they are both suspended through a Text:
As for the«الإِمَامُ العَادِلُ» "Just Ruler", the "Taghleeb" style does not work here because a woman does not take leadership, as the Messenger of Allah صلى الله عليه وسلم said in the Hadith of Bukhari, narrated by Abu Bakra, who said: When the Prophet صلى الله عليه وسلم heard the news that the people of the Persia had made the daughter of Chosroes (Kisra) their Queen (ruler), he said, «لَنْ يُفْلِحَ قَوْمٌ وَلَّوْا أَمْرَهُمُ امْرَأَةً» "Never will succeed such a nation as makes a woman their ruler." Because guardianship, i.e. leadership is not allowed for women, as for other positions than leadership like Judiciary, electing a Khaleefah, elect and be elected in Majlis al-Ummah (Ummah Council), and other such legitimate jobs that are not part of leadership, are permissible for her to carry out... this means that the word "Just Ruler" does not include her, yet some interpreters interpreted "Just Ruler" to mean a Just Shepherd, applying it to women according to the Hadith reported by Bukhari that Abdullah Ibn 'Umar said, I heard the Messenger of Allah, may Allah bless him and grant him peace say:
«كُلُّكُمْ رَاعٍ، وَكُلُّكُمْ مَسْئُولٌ عَنْ رَعِيَّتِهِ، الإِمَامُ رَاعٍ وَمَسْئُولٌ عَنْ رَعِيَّتِهِ، وَالرَّجُلُ رَاعٍ فِي أَهْلِهِ وَهُوَ مَسْئُولٌ عَنْ رَعِيَّتِهِ، وَالمَرْأَةُ رَاعِيَةٌ فِي بَيْتِ زَوْجِهَا وَمَسْئُولَةٌ عَنْ رَعِيَّتِهَا...»
"All of you are shepherds and each of you is responsible for his flock. An Imam is a shepherd and he is responsible for those in his care. A man is a shepherd in respect of his family and is responsible for those in his care. The woman is a shepherd in respect of her husband's house and is responsible for those in her care..."
But most likely that "Taghleeb" is not used here because the words "Just Ruler" is preponderant to the Ruler, hence it is non-applicable to women.
As for«وَرَجُلٌ قَلْبُهُ مُعَلَّقٌ فِي المَسَاجِدِ» "A man whose heart is attached to the Masajid", it is also suspended through the Text stating that the Prayer of a woman in her home is better than her Prayer in the Masjid, this is in accordance to the Hadith of the Prophet صلى الله عليه وسلم, reported by Ahmad in his Musnad, that Abdullah Ibn Suwaid Al-Ansari, on the authority of Umm Humayd, who came to the Prophet (peace be upon him) and said, "O Messenger of Allah, I love to pray with you." He replied:
«قَدْ عَلِمْتُ أَنَّكِ تُحِبِّينَ الصَّلَاةَ مَعِي، وَصَلَاتُكِ فِي بَيْتِكِ خَيْرٌ لَكِ مِنْ صَلَاتِكِ فِي حُجْرَتِكِ، وَصَلَاتُكِ فِي حُجْرَتِكِ خَيْرٌ مِنْ صَلَاتِكِ فِي دَارِكِ، وَصَلَاتُكِ فِي دَارِكِ خَيْرٌ لَكِ مِنْ صَلَاتِكِ فِي مَسْجِدِ قَوْمِكِ، وَصَلَاتُكِ فِي مَسْجِدِ قَوْمِكِ خَيْرٌ لَكِ مِنْ صَلَاتِكِ فِي مَسْجِدِي».
"I know that you like to pray with me, But your prayer in your room is better for you than your prayer in your courtyard and your prayer in your courtyard is better for you than your praying in your house, and your prayer in your house is better for you than your prayer in the mosque of your people, and your prayer in the mosque of your people is better for you than your prayer in my mosque."
Consequently, five out of the seven categories apply to women with the "Taghleeb" style, as for the just Ruler and being attached to the Masajid, they are not applicable because they are suspended through Text and therefore the style of "Taghleeb" does not work here.
And for the full benefit, I mention to you what came in the Tafseer of Fatih Al-Bari for Ibn Hajar for the Hadith Al-Bukhari mentioned, especially the end of the interpretation of the Hadeeth, this is its text:
"...Although men are mentioned in this hadeeth, women are also included in what is described here. Although what is meant by a "just leader" is the position of imaam (Khaleefah), women may also be included in this, if they have children and treat them justly. The idea of being attached to the mosque does not apply to women, because a woman's prayer in her home is better than her prayer in the mosque. Apart from that, women have a share in all of these things..."
Consequently, the Hadeeth of the seven applies to women except for the just Ruler and whose heart is attached to the Masajid, they are not applicable because the "Taghleeb" style is suspended through Text.
4. Let us mention the texts related to the judiciary and see if it includes men and women, or if it specifies men excluding the woman:
Bukhari narrated from Abdul Rahman Bin Abi Bakra, that he said: Abu Bakra wrote to his son who was in Sijistan, that "I heard the Prophet صلى الله عليه وسلم say:
«لاَ يَقْضِيَنَّ حَكَمٌ بَيْنَ اثْنَيْنِ وَهُوَ غَضْبَانُ»
"No judge should make a judgment between two while he is in a state of anger."
Al Hakim extracted in his Mustadrak on the two Sahihs from Abdullah Bin Buraida, from his father, from his Prophet صلى الله عليه وسلم that he said:
«الْقُضَاةُ ثَلَاثَةٌ: قَاضِيَانِ فِي النَّارِ وَقَاضٍ فِي الْجَنَّةِ. قَاضٍ عَرَفَ الْحَقَّ فَقَضَى بِهِ فَهُوَ فِي الْجَنَّةِ، وَقَاضٍ عَرَفَ الْحَقَّ فَجَارَ مُتَعَمِّدًا فَهُوَ فِي النَّارِ، وَقَاضٍ قَضَى بِغَيْرِ عِلْمٍ فَهُوَ فِي النَّارِ»
"Judges are three, two are in hellfire and one is in heaven. The judge who discovers the truth and rules for it is in heaven. The judge who discovers the truth, but judges unjustly deliberately, he is in hellfire. And the judge who rules without knowledge, he is in hellfire" this is a Sahih Hadeeth in its chain of narration (isnad), and has a witness for its Sahih isnad according to Muslim.
In "Al-Ma'jam al Kabeer" by Tabarani on the authority of Ibn Buraida, from his father who said: the Prophet صلى الله عليه وسلم said:
«الْقُضَاةُ ثَلَاثَةٌ قَاضِيَانِ فِي النَّارِ، وَقَاضٍ فِي الْجَنَّةِ، قَاضٍ قَضَى بِغَيْرِ حَقٍّ وَهُوَ يَعْلَمُ، فَذَاكَ فِي النَّارِ، وَقَاضٍ قَضَى، وَهُوَ لَا يَعْلَمُ، فَأَهْلَكَ حُقُوقَ النَّاسِ، فَذَلِكَ فِي النَّارِ، وَقَاضٍ قَضَى بِالْحَقِّ، فَذَاكَ فِي الْجَنَّةِ».
"The judges are three, two are in hellfire and one is in heaven. The judge who rules against the truth knowingly, he is in hellfire. The judge who rules without knowledge, and violates the people's rights, he is in hellfire. The judge who rules for the truth is in heaven".
Tirmithi narrated in his Sunan from Ibn Buraida, from his father that the Prophet صلى الله عليه وسلم said:
«القُضَاةُ ثَلَاثَةٌ: قَاضِيَانِ فِي النَّارِ، وَقَاضٍ فِي الجَنَّةِ، رَجُلٌ قَضَى بِغَيْرِ الحَقِّ فَعَلِمَ ذَاكَ فَذَاكَ فِي النَّارِ، وَقَاضٍ لَا يَعْلَمُ فَأَهْلَكَ حُقُوقَ النَّاسِ فَهُوَ فِي النَّارِ، وَقَاضٍ قَضَى بِالحَقِّ فَذَلِكَ فِي الجَنَّةِ»
"Judges are three, two are in hellfire and one is in heaven. The judge who rules against the truth knowingly, he is in hellfire. The judge who rules without knowledge, and violates the people's rights, he is in hellfire. The judge who rules for the truth is in heaven".
Ibn Majah narrated in his Sunan from Ibn Buraida, from his father, from the Prophet صلى الله عليه وسلم, He said:
«الْقُضَاةُ ثَلَاثَةٌ، اثْنَانِ فِي النَّارِ، وَوَاحِدٌ فِي الْجَنَّةِ، رَجُلٌ عَلِمَ الْحَقَّ فَقَضَى بِهِ فَهُوَ فِي الْجَنَّةِ، وَرَجُلٌ قَضَى لِلنَّاسِ عَلَى جَهْلٍ فَهُوَ فِي النَّارِ، وَرَجُلٌ جَارَ فِي الْحُكْمِ فَهُوَ فِي النَّارِ»
"Judges are three, two are in hellfire and one is in heaven, a man discovered the truth and ruled for it is in heaven, a man who judged between people ignorantly is in hellfire, and a man who was unjust in his judgment is in hellfire".
Al Bazzar narrated in his Musnad from Ibn Buraida, from his father (ra) that the Prophet صلى الله عليه وسلم said:
«الْقُضَاةُ ثَلاثَةٌ اثْنَانِ فِي النَّارِ وَوَاحِدٌ فِي الْجَنَّةِ قَاضٍ قَضَى بِجُورٍ فَهُوَ فِي النَّارِ وَقَاضٍ قَضَى بِغَيْرِ عِلْمٍ فَهُوَ فِي النَّارِ وَقَاضٍ بِالْحَقِّ فَهُوَ فِي الْجَنَّةِ»
"Judges are three, two are in hellfire and one is in heaven: The one judges unjustly is in hellfire, the judge who judges out of ignorance is in hellfire, and the judge who judges by the truth is in heaven".
Mu'ammar Bin Rashid in Jami' from Abdul Razzaq, said that Mu'ammar told us, from Qatada that Ali (ra) said:
«الْقُضَاةُ ثَلَاثَةٌ: قَاضٍ اجْتَهَدَ فَأَخْطَأَ فِي النَّارِ، وَقَاضٍ رَأَى الْحَقَّ فَقَضَى بِغَيْرِهِ فِي النَّارِ، وَقَاضٍ اجْتَهَدَ فَأَصَابَ فِي الْجَنَّةِ»
"Judges are three: a judge who performed Ijtihad but was mistaken, he is in hellfire, another who knew the truth but ruled against it, he is in hellfire, and the one who performs Ijtihad and was right, he is in heaven"
Reviewing these hadeeth, we find that they came in the masculine form or addressing men, both men and women are addressed unless there is a Sahih text that excludes women. In these hadeeths there is no restriction to men only like in the issue of "ruling". This is why both men and women are addressed by these rules. It is allowed for the woman to become a judge to settle disputes between people or as judge of Hisba (violations of the community's rights).
As for becoming the Judge of Madhalim (unjust acts) which deals with removing the ruler, women cannot be appointed in that post as it is linked to women not taking ruling posts. Therefore, it is not allowed for women to become a judge of Madhalim.
All this shows clearly that women can become judges as general judges and Hisba judges, This is permissible for both men and women.
5. In conclusion, looking at the life of women during the time of the Prophet صلى الله عليه وسلم it reflects a complete opposite picture to what came in the question. Women took part in life just like men, they carried intellectual and political struggle. The first martyr in Islam was Summayah, a woman, who carried the Dawah with the Prophet صلى الله عليه وسلم. Umm Umara and Umm Manee' were amongst the people who gave a pledge of support to the Prophet صلى الله عليه وسلم in the second Aqabah pledge, with the men. Women treated the injured in the battlefield, they enjoined the good and forbade the evil, and they accounted the Khaleefah. Truly they were the twin-halves of men. All of this was according to the Shariah rule that regulated the life of men and women, and women were not a wasted effort, or house-ridden never leaving them.
And in the end, the best picture that portrays women in the Islamic life are given in the saying of Allah سبحانه وتعالى:
وَالْمُؤْمِنُونَ وَالْمُؤْمِنَاتُ بَعْضُهُمْ أَوْلِيَاءُ بَعْضٍ يَأْمُرُونَ بِالْمَعْرُوفِ وَيَنْهَوْنَ عَنِ الْمُنْكَرِ وَيُقِيمُونَ الصَّلَاةَ وَيُؤْتُونَ الزَّكَاةَ وَيُطِيعُونَ اللَّهَ وَرَسُولَهُ أُولَئِكَ سَيَرْحَمُهُمُ اللَّهُ إِنَّ اللَّهَ عَزِيزٌ حَكِيمٌ * وَعَدَ اللَّهُ الْمُؤْمِنِينَ وَالْمُؤْمِنَاتِ جَنَّاتٍ تَجْرِي مِنْ تَحْتِهَا الْأَنْهَارُ خَالِدِينَ فِيهَا وَمَسَاكِنَ طَيِّبَةً فِي جَنَّاتِ عَدْنٍ وَرِضْوَانٌ مِنَ اللَّهِ أَكْبَرُ ذَلِكَ هُوَ الْفَوْزُ الْعَظِيمُ
"The believing men and believing women are allies of one another. They enjoin what is right and forbid what is wrong and establish prayer and give zakah and obey Allah and His Messenger. Those - Allah will have mercy upon them. Indeed, Allah is Exalted in Might and Wise. Allah has promised the believing men and believing women gardens beneath which rivers flow, wherein they abide eternally, and pleasant dwellings in gardens of perpetual residence; but approval from Allah is greater. It is that which is the great attainment"
And in His سبحانه وتعالى saying:
إِنَّ الْمُسْلِمِينَ وَالْمُسْلِمَاتِ وَالْمُؤْمِنِينَ وَالْمُؤْمِنَاتِ وَالْقَانِتِينَ وَالْقَانِتَاتِ وَالصَّادِقِينَ وَالصَّادِقَاتِ وَالصَّابِرِينَ وَالصَّابِرَاتِ وَالْخَاشِعِينَ وَالْخَاشِعَاتِ وَالْمُتَصَدِّقِينَ وَالْمُتَصَدِّقَاتِ وَالصَّائِمِينَ وَالصَّائِمَاتِ وَالْحَافِظِينَ فُرُوجَهُمْ وَالْحَافِظَاتِ وَالذَّاكِرِينَ اللَّهَ كَثِيرًا وَالذَّاكِرَاتِ أَعَدَّ اللَّهُ لَهُمْ مَغْفِرَةً وَأَجْرًا عَظِيمًا
"Indeed, the Muslim men and Muslim women, the believing men and believing women, the obedient men and obedient women, the truthful men and truthful women, the patient men and patient women, the humble men and humble women, the charitable men and charitable women, the fasting men and fasting women, the men who guard their private parts and the women who do so, and the men who remember Allah often and the women who do so - for them Allah has prepared forgiveness and a great reward"
Ata Bin Khalil Abu Al-Rashtah
20 Sha'ban 1435 AH
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