Walikumaslam,

Ghamidi sb generally accept the conclusion of muhadiseen about credibility of Isnad. However, he says that the hadith is not a source of religion. It should be understand in the light of QUran and Sunnah.
For ur question see Discussion 51482

According to Ghamidi Sahab, there is no restriction in Quran and Sunnah on women being appointed either a judge or a Jurist. While major schools all agree that women can assume the role of a jurist, but there is disagreement on whether women can judge or not and if yes, then what will be the scope of their judicial oversight.

Jurists opinions on the question of whether women can judge are usually determined by their school’s view: Hanafis, Zahiris, and Jariris (Imam Tabari’s School) support the practice; all other schools are against it. Although the majority of Hanbalis, Malikis, Shafis, and Imamis (Shias) prohibit women from judging, jurists from the latter three schools have dissident views [1]. Each case is slightly different in terms of the way the jurists relate to established school views. One early Maliki ruled in favor of women judges, and while the majority went against him. Some laker Malikis refer to this precedent within their own school in order to rule that women can judge. The Shafi Ibn Abi l-Dam (d. 642/1244) disagrees with his own school’s view, but adheres to the doctrine of another school: he argues in support of the Hanafi rules on women’s judging and testimony. And to rule in favor of women as judges in some cases, the Imami al-Ardabili (d. 993/1585) does not refer to precedent in his own school nor to specific examples from other schools, but rather to the lack of consensus on the matter. Most jurists who allow women the right to judge do not grant them the right in all circumstances: according to the Hanafis, for instance, women can only judge in those cases for which they can testify.

One of the most prominent early jurists to support the doctrine of women as judges was Abu Hanifa (d. 150/767), who drew an analogy with testimony. Following Abu Hanifa, the Hanafi school of law permits women to judge where they can testify; according to Hanafi doctrine, this is in all cases other than hudud or qisas (hudud being those ordinances that pertain to crimes against God, such as adultery, and qisas being cases requiring some retaliation or payment, such as murder) [2].

The Maliki Ibn al-Qasim (d. 191/806), who was a student of Imam Malik, says that women can judge; there is only disagreement within the school as to whether he meant that they could judge in all cases, or only in the cases where they could testify [3]. The Maliki majority went against Ibn al-Qasim’s view, to rule that women could not judge, yet some Malikis follow Ibn al-Qasim and disagree with the majority view.

Al-Tabari (d. 310/923), the founder of the Jariri school of law, says that women can judge in all cases. He draws an analogy between judging and interpreting the law (i.e. being a mufti). Although the requirements for being a mufti are more stringent than those for being a judge, and although all Sunni schools of law permit women to be muftis in all matters, no other jurist in this study drew the analogy between giving fatwas and judging. The difference, for the majority of jurists, is one of authority: issuing judgments is legally binding, while giving fatwas is not, and therefore judging constitutes a type of authority that issuing fatwas does not. It seems that al-Tabari may have had a different view [4].

Jurists who argue against women as judges often cite passages in the Quran and hadiths that do not mention women judging, but describe a hierarchical relationship between the sexes; these passages are interpreted to say that women are not permitted any authority, and therefore they may not act as judges. Jurists who are in favor of women judges agree that men are in authority over women generally, but they argue that women do exercise authority over certain matters.

One of the most prominent jurists to participate in this debate is the Shafi al-Mawardi (d. 450/1058). In ruling against women as judges, al-Mawardi specifically cites al-Tabari and Abu Hanifa as having conflicting viewpoints. His counter-argument is that men are in authority over women, and to allow women to judge would be to grant them authority to which they are not entitled. To structure his argument, he gives a number of proofs of male authority in descending order of importance. The first proof is Quran 4:34. The proper translation of this verse is disputed; a translation reflecting the interpretation of most premodern exegetes would read, “men are in authority (qawwamuna) over women, because God made the one superior (faddala) to the other, and because they spend of their property.” (For Ghamidi Sahab’s understanding of this verse 4:34, please refer to the text and videos provided in the following thread: Discussion 1769).

Though this text does not mention women’s innate abilities, al-Mawardi interprets it as an endorsement of male authority due to women’s deficiency in rationality (aql) and sound judgment (raye). This may be an allusion to a hadlth that famously states that women are deficient in aql and deen (religion); the deficiency in their aql is proven by rules in respect of testimony that require two female witnesses for every male witness. (For Ghamidi Sahab’s understanding of this Hadith, please refer to the videos provided in the following thread: Discussion 39889).

The next proofs he cites are hadiths on the authority of the Prophet which speak of the hierarchical relationship between the sexes. One of these is widely cited in the debate on women’s exercise of authority: “A people who entrust their affairs to a woman will never prosper.” This hadith is a reference to the practice of putting female members of the Sasanian house on the throne after the Sasanians’ defeat by the Byzantines; hence, the jurists say that it refers to the Persians being ruled by a daughter of Chosroes. AI-Mawardi concludes his argument with legal proofs: because women do not have the right to lead prayers, lead the community, and testify in the most serious of cases, they must not judge. (For Ghamidi Sahab’s understanding of this Hadith, please refer to the videos provided in the following thread: Discussion 51482).

Al-Mawardi’s arguments, which seem to have had a widespread influence, predicate male authority on women’s deficiencies in aql and raye. Most of his discussion of women as judges stems from his perception of women’s deficient nature, citing sources that, for him. imply that women’s mental deficiencies are the reason for male authority. However, it is worth noting that the terms used to describe those deficiencies are not well defined. From the context, it makes sense to say that aql means a certain quality of mind, which would go along with his description of women as deficient in judgment (raye).

For al-Mawardi, male authority over women is absolute: women are not permitted any authority. Since he is against women’s exercise of authority, he is careful to spell out that women’s testimony in court does not involve the exercise of authority, which is why it is allowed; he draws the comparison between being a witness and being a mufti, and says that while both are permitted, neither falls under the sphere of authority: “As for the permissibility of women issuing fatwas and of their testimony, it is because there is no authority in these two things, and therefore females are not forbidden from them; they are only forbidden from authority.” Thus he justifies rulings that may seem to grant women authority by saying that they do not.

The first jurist in this study to give a detailed explanation of his view in favor of women judging is Ibn Hazm (d. 456/1064), who presents a coherent argument that women do have authority over some matters. Because he is a Zahiri, Ibn Hazm takes a literalistic approach to the Quran and hadiths; he disagrees with analogy, and he does not comment on the reasons for the doctrine. This can make it seem as though he has a more egalitarian vision of women’s rights than do the other jurists. But, although his methods have a significant impact on his discourse, Ibn Hazm does not argue for equality between the sexes. Because he disagrees with the use of analogy, Ibn Hazm does not draw a parallel between women’s testimony and their judging. He says that Quran 2:282 (“If there are not two male witnesses, then a man and two women from among those witnesses who please you; so if one of the two women errs, the other will remind her”), which deals with the question of number of witnesses in financial transactions, refers to all spheres of testimony. Most schools do not permit women to testify alone in cases where men can also testify: they do not enable four women to testify in the place of two men. but only two women and one man, and then only in certain instances. But Ibn Hazm says that in cases where two men can testify, four women can. and in cases requiring four men. he permits eight women [5]. Unlike many other jurists. Ibn Hazm does not use this verse as a springboard to make claims about women’s mental deficiencies. He does not say why two women equal one man, but just accepts the verse as it is stated. (For Ghamidi Sahab’s understanding of this verse 2:282, please refer to the thread-link and videos provided in the following thread: Discussion 71346).

In his opinion on judging, Ibn Hazm makes it clear that he considers all parts of the Quran applicable to men and women, unless otherwise specified. Since men and woman are told to command right and forbid wrong, and because Quran 4:58 (“God has ordered you to render your trusts to those to whom they are due, and when you judge between people, that you [should] judge with justice”), which mentions judging, does not specify that it only applies to men, he permits women to judge [6]. His literalistic approach also applies to hadiths: he limits the applicability of the hadith “A people who entrust their affairs to a woman will never prosper.” According to him, because this hadith refers to women as rulers, it is only applicable to the caliphate, and not to all spheres in which women could possibly exercise authority:

“Women are allowed to assume judgeship (hukm), which is the doctrine of Abu Hanifa. It is narrated on the authority of Umar al-Khattab that he placed al-Shafa, a woman from his tribe, in control of the marketplace. If it is said that the Prophet said. “A people who entrust their affairs to a woman will never prosper.” then we say that the Prophet only said that in regard to one matter, and that is the caliphate. The proof of that is Muhammad’s (sws) words, “A woman is the shepherd of her husband’s wealth, and she is responsible (masula) for her flock.’’ The Malikis have permitted women to be guardians, and no text prevents them from exercising authority over some matters. Success is from God alone” (Ibn Hazm, al-Muhalla, 9:429-30).

Several historical accounts do refer to a woman named Thumal who was appointed to officiate in the mazalim court in the year 306/918 by the mother of the caliph al-Muqtadir (r. 295-320/908-923). Unlike in a Sharia court where the judge has religious training, in a court justice is dispensed by the governing authorities, either in person or through a representative who is not necessarily a specialist in the law. In the Mazalim court, the petitioners would hand in written petitions, and the person in charge (nazir al-mazalim) would issue a rescript, writing on the petition itself. Some chronicles describing her activities in the mazalim court say that Thumal herself issued the rescripts on the petitions.

Ibn al-Jawzi (d. 597/1200) records two versions, the first apparently relying on Arib, and the second version naming an isnad going back to Abu Muhammad Ali bin Ahmad bin Said al-Hafiz. The latter is quite short and merely says that she presided in the mazalim court and that “judges and jurists” attended her sessions (Ibn al-Jawzi, al-Muntazam [Hyderabad: Dathira al-Maarif al-Uthmaniyya, 1938], 6:148).

Al-Dhahabi (d. 748/1347) says: “Thumal put the rescripts on the petitions.” [al-Dhahabi, Siyar alam al-nubala ed. Mustafa Abd al-Qadir Ata (Beirut: Dar al-Kutub al-iImiyya, 2004), 10:27].

According to Ibn Taghribirdi, “And in this year the mother of al-Muqtadir ordered Thumal, her qahramana, to sit at the mausoleum which [Shaghab] had built adjoining the mazalim court, and to look into the people’s petitions on every Friday. The above-mentioned Thumal sat in the presence of the jurists, judges, and prominent people. She issued the rescripts (or: the rescripts were issued), upon which was her writing” (Ibn Taghribirdi, al-Nujum al-zahira [Cairo: Dar al-Kutub al-Misriyya, 1932], 3:193-94).

And Ibn Hazm says that she “sat to judge between the people.” (Ibn Hazm, Rasail Ibn Hazm al-Andalusi, ed. Ihsan Abbas (Beirut: Muassasat al-Arabiyya li-l-Dirasat wa-l-Nashr,1987), 2:98).

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[1]. In addition, there was one somewhat ambiguous Hanbali case: Abd l-Qasim al-Khiraqi (d. 334/945), who omits maleness from his list of qualifications for a judge. His criteria were that the judge should be physically mature (not a youth), Muslim, free, just, knowledgeable, a jurist, pious, and reasonable (al-Khiraqi, Mukhtasar al-Khiraqi. ed. Muhammad Shawish [n.p., 1958J. 226). Later Hanbali jurists unanimously agree that al-Khiraqi’s omission was not intentional; they claim that al-Khiraqi meant to include maleness as a condition, and they mention other conditions, such as rationality that he also omitted. Shams al-Din al-Zarkashi (d. 772/1370) goes so far as to say that al-Khiraqi’s use of the masculine pronoun to describe the judge indicated that he meant that judges should be male (al-Zarkashi, Sharh al-Zarkashi ala Mukhtasar al-Khiraqi. ed. Abd Allah b. Abd al-Rahman b. Abd Allah al-Jibrin (Riyadh: Maktabat al-Ubaykan. 1993). 244). This is a weak argument at best, since the masculine pronoun is often used to denote both sexes. Al-Khiraqi’s commentators were probably clarifying the points he left out of his succinct legal manual, rather than engaging in a mad scramble to cover up a deviant position. Nevertheless. it is worth noting that the later jurists had no compunction about ascribing later school doctrine to an earlier source. This creates a coherent legal doctrine in the school, and obscures any early ambiguity.

[2]. Al-Simnani (d. 499/1105) explains: “There is a difference in opinion regarding the legality of women holding the office of judge and issuing judgments. Abu Hanifa and his followers say that it is possible for women to undertake judgeship in those areas where their testimony is accepted. either alone or with men. and it is not acceptable in cases of hudud or qisas because their testimony is not acceptable in those cases” (al-Simnani, Rawdat al-qudah. ed. Salah al-Din al-Nahi [Baghdad: Matbaat Asad. 1970-19741], 63).

[3]. al-Hattab. Mawahib al-jalil, ed. Zakariyya Amirat (Beirut: Dir al-Kutub al-ilmiyya. 1995), 6:88.

[4]. Although al-Tabari’s opinion does not appear in any of his extant works, several other authors cite it. For instance. al-Mawardi says: “As for Ibn Jarir [al-Tabari], he proves his position, which allows women to exercise authority [to judge] on the basis of their ability to give sound legal opinions (fatwa)” (al-Mawardi, Adab al-qadi. ed. Muhyi Hilal al-Sirhan [Baghdad: Matbaat al-lrshad.1971], 1:626).

[5]. In cases of adultery, it is not permissible to accept the testimony of fewer than four just, Muslim men, or in the place of each man, two just., Muslim women. Thus: three men and two women, two men and four women, a single man and six women, or eight women alone (without any men) may testify in cases of adultery. In all other cases, including hudud and qisas. marriage, divorce, the return of wives after divorce, and monetary matters, the testimony of no fewer than two just, Muslim men, or a man and two just, Muslim women, or four just, Muslim women is acceptable. And in all of those cases except hudud a just man alone or two just women with an oath are acceptable. In cases of suckling, one just woman alone is an acceptable witness, or one just man” (Ibn Hazm, al-Muhalla. ed. M.M. al-Dimashqi [Cairo. 1347-52]. 9:395-96).

[6]. He says: “Slaves may be entrusted with judgeship, for they are entrusted with commanding right and forbidding wrong, and because of God’s words, ’God has ordered you to render your trusts to those to whom they are due, and when you judge between people, that you (should) judge with justice’ (Quran 4:58). This Quranic text is a general order to men and women, free and enslaved. The religion is for everyone except in cases where the text (of the Quran) differentiates between men and women, freedman and slave; at those points, there are exceptions to the general tenets of the religion” (Ibn Hazm, al-Muhalla, 9:430).